REUBEN v NEW ZEALAND POLICE [2019] NZCA 629

REUBEN v NEW ZEALAND POLICE [2019] NZCA 629 [10 December 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA548/2018[2019] NZCA 629BETWEEN STEWART CLIFTON REUBENApplicantAND NEW ZEALAND POLICERespondentCourt: Brown, Simon France and Hinton JJCounsel: Applicant in personM L Wong for RespondentJudgment:(On the papers)10 December 2019 at 11.30 amJUDGMENT OF THE COURT(Recall)The application for recall is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Following a Judge alone trial on 19 and 21 September 2017 in theDistrict Court at Huntly, in a judgment dated 7 November 2017 Mr Reuben was foundguilty of charges of contravening a protection order and unlawfully converting a motorvehicle.1 He was sentenced to 3 months' imprisonment.2 His appeal against his1 Police v Reuben [2017] NZDC 25049.2 Police v Reuben [2017] NZDC 25565. He has served his sentence.conviction heard in the High Court at Hamilton on 20 March 2018 was dismissed byToogood J in a judgment delivered on 26 July 2018.3[2] On 10 September 2018 Mr Reuben filed out of time an application for leave tobring a second appeal to this Court. Mr Reuben's application was dismissed ina judgment of this Court delivered on 24 October 2019,4 Mr Reuben having failed toattend the hearing on 8 October 2019.[3] Mr Reuben now seeks a recall of this Court's judgment. As this Courtexplained in Lyon v R there are three pre-conditions for recall:5(a) a fundamental error in procedure;(b) a substantial miscarriage of justice if the error is not corrected; and(c) the absence of an alternative effective remedy.A fundamental error in procedure?[4] Mr Reuben's application for leave to bring a second appeal has a long historyinvolving four adjournments.6 He did not provide any prior notice of the fact he wouldnot be attending the hearing on 8 October 2019. His submissions in support of hisapplication for recall stated that his failure to attend was the result of severalunforeseen circumstances "such as":• vehicle issues ie licensed driver, reliable transport etc • money for gas expenditures etc• several road works delay en route etc• other unsafe road usersAs Ms Wong for the Crown submits, it appears that with better planning Mr Reubencould have attended the hearing.3 Reuben v Police [2018] NZHC 1870.4 Reuben v Police [2019] NZCA 515.5 Lyon v R [2019] NZCA 311 at [27].6 Reuben v Police, above n 4, at [7]–[10].[5] Following his non-appearance on 8 October 2019 it was open to this Court todismiss Mr Reuben's longstanding application. There has been no fundamentalprocedural error.A substantial miscarriage of justice?[6] Section 237(1) of the Criminal Procedure Act 2011 provides that this Courtmust not grant leave for a second appeal unless satisfied that the appeal involves amatter of general or public importance or a miscarriage of justice may have occurredor may occur unless the appeal is heard. The test is a high one.7[7] It appears that Mr Reuben's principal concern about the hearing in theDistrict Court was that he was not allowed to finish giving his evidence. Ms Wongsubmitted that the notes of evidence indicate that Mr Reuben's evidence-in-chief wasconcluded on 19 September 2017. He was not cross-examined.[8] As Ms Wong explained:He provided a detailed account of what he says occurred between him and[the complainant]. The Judge led Mr Reuben through his evidence and, wherenecessary, asked Mr Reuben questions that arose from the complainant'saccount. Towards the end of his evidence, the Judge asked Mr Reubenwhether he wished to comment further on specific topics and generallywhether he had anything further to add. Mr Reuben answered by simplyrepeating evidence he had already given. The Judge ended the hearing byasking three or four focussed questions relevant to the charge, to whichMr Reuben provided his answers.(Footnotes omitted.)[9] We agree with Ms Wong's submission that there was no unfairness in thehearing and that the application for leave to appeal is without merit. Hence there is norisk that a miscarriage of justice will occur if a recall is refused.Result[10] The application for recall is declined.Solicitors:Crown Law Office, Wellington for Respondent7 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.