PATERSON v NEW ZEALAND POLICE [2020] NZCA 660

PATERSON v NEW ZEALAND POLICE [2020] NZCA 660 [18 December 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA527/2019[2020] NZCA 660BETWEEN PHILIP ANTHONY PATERSONAppellantAND NEW ZEALAND POLICERespondentCourt: Courtney, Ellis and Brewer JJCounsel: Appellant in PersonP K Thomson for RespondentJudgment:(On the papers)18 December 2020 at 10 amJUDGMENT OF THE COURTThe application for recall is declined.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)[1] In 2018 Mr Paterson pleaded guilty to one charge of wilful trespass. He wasconvicted and ordered to appear for sentence if called upon within nine months.1Mr Paterson appealed his conviction unsuccessfully.2 His application for leave tobring a second appeal was declined.3 He now applies for a recall of the decisiondeclining his application for leave to bring a second appeal.1 Police v Paterson [2018] NZDC 21458.2 Paterson v Police [2019] NZHC 1796. Mr Paterson appealed his sentence at the same time butthat appears not to have been determined by the High Court.3 Paterson v Police [2020] NZCA 139.[2] The very limited grounds on which this Court will recall a decision werethoroughly considered by the Supreme Court in Uhrle v R4 and by this Court in Lyonv R.5 In summary, once a judgment has been delivered it must stand for better orworse, subject only to rights of appeal. The three recognised situations which mightjustify recall are (1) where there has been an amendment to a relevant statute orregulation or a new judicial decision of relevance and higher authority since thehearing (2) where counsel have failed to direct the Court's attention to a legislativedecision or authoritative decision of plain relevance and (3) where for some other veryspecial reason justice requires that the judgment be recalled.6 The interests of justiceare not limited to the interests of the applicant. There is significant public interest inthe finality of litigation.7[3] An applicant seeking to recall a judgment of this Court must demonstrate howthe decision to be recalled may be impeached. An application for recall is notconcerned with the first instance decision and is not an opportunity to revisit factualfindings made at first instance.8 But that is what Mr Paterson seeks to do.[4] Mr Paterson's conviction turned on whether a water supply tank was situatedon private property known as the Wilberg Farm or on Department of Conservationland. Mr Paterson asserted a miscarriage of justice as a result of the hearing inthe High Court being conducted by telephone, and the High Court Judge,Dunningham J, finding that the water supply tank was located on the Wilberg Farm onthe basis of evidence presented by the prosecution. The application for leave to bringa second appeal was refused because Mr Paterson failed to demonstrate any risk of amiscarriage of justice. There was no merit in the first point. As to the second,the Judge made the finding with the benefit of evidence provided by both Mr Patersonand the police and her decision was fully reasoned.[5] Mr Paterson wishes to resume his challenge to Dunningham J's factual findingon the basis of a Westland District Council report dated 27 August 2020. He also seeks4 Uhrle v R [2020] NZSC 62.5 Lyon v R [2020] NZCA 430.6 Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633; and Saxmere Co Ltd v Wool BoardDisestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].7 Lyon v R, above n 5, at [23]–[24].8 At [21]–[22] and [27]–[28].to raise issues regarding the reliability of witness statements, matters that were notraised in in the application for leave to bring a second appeal. Mr Paterson does notsuggest error in the decision of this Court refusing him leave to bring a second appeal.He simply wants to relitigate the factual dispute that was the subject of a finding inthe High Court. This does not meet the criteria for recalling the decision refusing leaveto bring a second appeal.[6] The application for recall is declined.Solicitors:Crown Law Office, Wellington for Respondent