MAID v R [2022] NZCA 344

MAID v R [2022] NZCA 344 [29 July 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA68/2021[2022] NZCA 344BETWEEN PREETAM PRAKASH MAIDApplicantAND THE QUEENRespondentCourt: Clifford, Thomas and Muir JJCounsel: Applicant in personJ A Eng for RespondentJudgment:(On the papers)29 July 2022 at 10.30 amJUDGMENT OF THE COURTThe application for recall is declined.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] The applicant, Mr Maid, applies for recall of this Court's judgment of10 September 2021 dismissing his appeal against conviction.11 Maid v R [2021] NZCA 456 [Appeal decision].Background[2] Mr Maid worked as an aviation security officer at Dunedin InternationalAirport. He was found guilty following trial by jury on a charge of taking an imitationimprovised explosive device (IIED) into a security enhanced area (SEA) in breach ofs 11(1A) of the Aviation Crimes Act 1972. After taking it through the SEA, Mr Maidplaced a satchel containing the IIED at the entrance of a localiser hut on the runwayin an effort to cause a security incident to expose what he considered to be deficits inthe Airport's security system. Mr Maid was sentenced to three years' imprisonment,the Judge having taken account of the fact Mr Maid's actions took place two days afterthe Christchurch Mosque attacks and of the serious disruption his actions caused.2[3] The Crown case was circumstantial. It relied on extensive CCTV andaccess-card evidence, as well as expert handwriting analysis of a note accompanyingthe IIED. No one, however, saw Mr Maid assembling the device itself or carrying itinto the SEA.[4] On appeal, Mr Maid submitted there was no evidence he took the device intoan SEA as there were different routes to the patrol vehicle that did not require him topass through an SEA. Whilst this Court accepted the argument as conceivable, weheld it was more than open to the jury to conclude, based on the circumstantialevidence as a whole, that the IIED had been taken into the SEA.3 We also dismissedMr Maid's other arguments as to alleged errors in the Judge's summing up.4[5] We did, however, allow Mr Maid's sentence appeal and reduced the term ofimprisonment to 17 months. The Judge had set a manifestly excessive starting pointby focusing on the overall consequences of Mr Maid's activities that day, rather thanof the limited criminal act itself.5 As we noted, had Mr Maid placed the IIED at thelocaliser hut without taking it through the SEA, no offence under the Aviation Actwould have occurred.62 R v Maid [2021] NZDC 1547.3 Appeal decision, above n 1, at [29].4 At [33]–[38].5 At [61].6 At [17]. However, the Court considered Mr Maid could have been liable under s 307A of theCrimes Act 1961 relating to threats of harm to people or property: Appeal decision, above n 1,at [66].[6] Following our judgment, Mr Maid sought leave to appeal his conviction to theSupreme Court, which that Court declined in a judgment of 4 April 2022.7[7] The day after the Supreme Court gave its judgment, Mr Maid, representinghimself, filed a document entitled "request for leave to appeal by person convicted".In accordance with this Court's decision in Lyon v R and the Supreme Court's decisionin Urhle v R, we treat that document as an application by Mr Maid for recall of thisCourt's judgment dismissing his conviction appeal.8Analysis[8] The recall jurisdiction is exceptional and discretionary. An applicant mustimpeach this Court's earlier decision and show a substantial injustice hasprobably occurred.9[9] The Supreme Court in Urhle v R explained the content of the test to be appliedfor recall in the criminal context is sufficiently captured within the three grounds forrecall articulated in Horowhenua County v Nash (No 2).10 Mr Maid's applicationwould appear to be based on the third of those grounds: that is, he argues there is a"very special reason" why justice requires recall.[10] We do not agree. Mr Maid's proposed grounds largely seek to relitigate hisunsuccessful appeal; an appeal in which he was represented by very experiencedsenior counsel. In those circumstances we may dismiss the application shortly.11Recall is not the appropriate context for a challenge of substantive findings of fact orlaw in the judgment sought to be recalled by recasting arguments previously given andre-presenting them in a new form, or putting forward further arguments that couldhave been raised at the earlier hearing but were not.12 As the Supreme Court of theUnited Kingdom recently observed when dealing with an application for recall,7 Maid v R [2022] NZSC 39.8 Lyon v R [2019] NZCA 311 at [25]; and Urhle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [17].9 Lyon v R [2020] NZCA 430 at [19]–[21].10 Urhle v R, above n 8, at [29]; and Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at633.11 Lyon v R, above n 9, at [30].12 At [25].the Court "should not start from anything like neutrality or even-balanced scales".13The principle of finality is of fundamental public importance.[11] Assessed in that context, Mr Maid's application clearly fails to come withinthe Horowhenua County criteria. First, Mr Maid's argument that s 11(1A) of theAviation Act requires the Crown to prove he was found with the IIED within the SEAis simply not correct. His claims that the Crown failed to prove the IIED was in factan "imitation" device, or that the SEA was in fact an SEA, were raised and dismissedduring his trial and those findings were not challenged on appeal. The issue raised asregards the handwriting evidence was raised in his notice of appeal but he elected notto pursue it on appeal. Finally, his claim a falsified map was before the Court, even ifcorrect (which the Crown rejects), does not show any injustice because it would nothave affected the outcome in any event.Result[12] The application for recall is declined.Solicitors:Crown Law Office, Wellington for Respondent13 AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16 at [32].