HOOPER V NEW ZEALAND POLICE [2016] NZCA 6

HOOPER V NEW ZEALAND POLICE [2016] NZCA 6 [4 February 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA83/2015[2016] NZCA 6BETWEEN PAUL BRENT HOOPERApplicantAND NEW ZEALAND POLICERespondentCourt: Stevens, Venning and Williams JJCounsel: Applicant in PersonM L Wong for RespondentJudgment:(On the papers)4 February 2016 at 11.30 amJUDGMENT OF THE COURTThe application for recall of this Court's judgment [2015] NZCA 243 isdismissed.____________________________________________________________________REASONS OF THE COURT(Given by Stevens J)Introduction[1] Paul Brent Hooper pleaded guilty to, and was convicted of, one charge of careless use of a motor vehicle in the Marton District Court.1 He was sentenced todisqualification from holding a driver's licence for three months. He appealed1 New Zealand Police v Hooper DC Marton CRI-2014-054-3161, 10 November 2014.against his conviction and sentence. Both were dismissed by Woolford J in the High Court.2[2] Mr Hooper sought the leave of this Court to bring a second appeal pursuant to ss 237 and 253 of the Criminal Procedure Act 2011. The application for leave to appeal was dismissed in a judgment delivered on 12 June 2015.3[3] Mr Hooper has, in December 2015, applied for leave to recall the Court of Appeal judgment. In support of his application he says this Court ignored the "main points of his complaint", namely, the legal points he had raised on his leaveapplication. He also says the judgment wrongly attributed statements to people who did not make them, or referred to statements that had not been made at all.[4] The application for recall is opposed by the respondent.Applicable legal principles[5] There is no dispute as to the relevant principles. This Court has an inherentpower to revisit a decision "in exceptional circumstances when required by theinterests of justice".4 Such power, however, must not undermine the generalprinciple of finality and is thus only available "where a substantial miscarriage ofjustice would result if a fundamental error in procedure is not corrected and wherethere is no alternative effective remedy reasonably available".5 The principle of finality was endorsed by this Court in Wong v R.6 An application for recall is not to be used simply to re-litigate matters that have been brought to a close.7Our evaluation[6] We agree with the submissions of the respondent that no error is apparent in the Court of Appeal judgment, let alone a fundamental procedural error warranting a2 Hooper v New Zealand Police [2015] NZHC 122.3 Hooper v New Zealand Police [2015] NZCA 243 [Court of Appeal judgment].4 R v Smith [2003] 3 NZLR 617 (CA) at [36].5 Ibid.6 Wong v R [2011] NZCA 563 at [17].7 Banks v R [2015] NZCA 182 at [23].recall. We are satisfied there is no risk that a miscarriage of justice has occurred or will occur if the application for recall is dismissed. Our reasons are these.[7] First, Mr Hooper is concerned this Court ignored a legal question involving an important distinction between careless driving and an accident. This issue was fully addressed in the Court of Appeal judgment. The legal principles applicable to carelessness in the context of a careless driving charge were correctly articulated.8The Court noted, accurately, that the distinction between carelessness and accident isa question of fact in each case, and the relevant principles are "settled".9 Mr Hooper has raised nothing in respect of the legal principles warranting a recall.[8] The second point concerns statements said by Mr Hooper "not [to have been]made by the people [the Court] said they were made by" or not to have been made atall. Significantly, however, Mr Hooper has not provided any detail or examples of any such statements or comments in the Court of Appeal judgment. His complaint remains unexplained. In such circumstances, this point can be given no credence.[9] We conclude that no basis for a recall of the Court of Appeal judgment hasbeen made out. Rather, Mr Hooper's application smacks of a belated and futileattempt to re-litigate matters that have already been brought to a close with the Court of Appeal judgment issued in June 2015.Result[10] The application for recall of this Court's judgment [2015] NZCA 243 isdismissed.Solicitors:Crown Law Office, Wellington for Respondent8 Court of Appeal judgment, above n 3, at [12].9 Ibid.