N (CA615/2022) v POLICE [2023] NZCA 400
The application for recall was declined because the applicant did not identify any special reason to justify recall, the proposed second appeal did not raise a matter of general or public importance, and there was no identified risk of miscarriage of justice; recall jurisdiction does not permit re‑litigation of the...
Source-derived case information.
- Citation
- [2023] NZCA 400
- Parties
- Applicant: N; Respondent: New Zealand Police
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 25 August 2023
- Procedural Posture
- Criminal Appeal / Application for Leave to Bring Second Appeal / Application for Recall of This Court's Judgment Declining Leave to Bring a Second Appeal
- Outcome
- Application for recall declined
- Legal Topics
- Breach of Protection Order, Recall of Judgment, Leave to Bring a Second Appeal, Miscarriage of Justice, Procedural Limits on Recall
Source-derived case record
Summary, issues, holding and outcome
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Parties
N
Applicant
New Zealand Police
Respondent
Procedural Posture
Criminal Appeal / Application for Leave to Bring Second Appeal / Application for Recall of This Court's Judgment Declining Leave to Bring a Second Appeal
Legal Issues
- 1 Whether to recall this Court's judgment declining leave to bring a second appeal
- 2 Whether the proposed second appeal raises a matter of general or public importance
- 3 Whether there is a real risk of miscarriage of justice sufficient to justify recall
Ratio Decidendi
The application for recall was declined because the applicant did not identify any special reason to justify recall, the proposed second appeal did not raise a matter of general or public importance, and there was no identified risk of miscarriage of justice; recall jurisdiction does not permit re‑litigation of the merits.
Court Disposition
Application for recall declined
Orders
- Application for recall declined
Full Case Text
Judgment text and source record
1 paragraphs
N (CA615/2022) v POLICE [2023] NZCA 400 [25 August 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA615/2022[2023] NZCA 400BETWEEN N (CA615/2022)ApplicantAND NEW ZEALAND POLICERespondentCourt: Gilbert and Goddard JJCounsel: Applicant in personR K Thomson and W J Harvey for RespondentJudgment:(On the papers)25 August 2023 at 11amJUDGMENT OF THE COURTThe application for recall is declined.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] The applicant applies for recall of this Court's judgment declining hisapplication for leave to bring a second appeal against conviction and sentence forbreaching a protection order.1 The application for recall is based on the applicant'scontention that there has been a miscarriage of justice because the text message hesent, which was the basis of the charge, was "non-malicious/helpful" in the context of1 N (CA615/2022) v Police [2023] NZCA 103."a 'spat' between a husband and wife". The applicant appears to take issue with theprotection order and he disputes breaching the order by sending the text.[2] The applicant was convicted in the District Court in September 2022 andordered to pay a fine of $150 and court costs of $130. The applicant exercised hisright of appeal to the High Court. Palmer J dismissed the appeal in November 2022.[3] This Court declined the applicant's application for leave to bring a secondappeal because the proposed appeal did not raise a matter of general or publicimportance and there was no risk of a miscarriage of justice arising out of the way thematter was dealt with in the High Court.[4] The applicant has not identified any special reason that could justify this Courttaking the exceptional step of recalling its judgment declining leave to bring a secondappeal.2 The limited recall jurisdiction does not afford an opportunity for adisappointed party to re-litigate the merits. The recall application is misconceived andmust be declined.Result[5] The application for recall is declined.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent2 Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286; and Jolley v R [2022] NZSC 150, [2022] 1 NZLR595.