WILMSHURST-RETI v R [2019] NZCA 233

WILMSHURST-RETI v R [2019] NZCA 233 [19 June 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA499/2018[2019] NZCA 233BETWEEN ZACHARY WILMSHURST-RETIAppellantAND THE QUEENRespondentCourt: Williams, Peters and Gendall JJCounsel: N P Bourke for AppellantJ E L Carruthers for RespondentJudgment:(On the papers)19 June 2019 at 10.00 amJUDGMENT OF THE COURTA The application for recall of this Court's judgment [2019] NZCA 167 isgranted.B The judgment is recalled.C The judgment is amended and reissued with paragraphs [47], [48], [50]and Orders C, D and F deleted and a new paragraph [47] substitutedwhich reads as follows: "A judgment of acquittal is entered with respectto the charge of wounding with reckless disregard."____________________________________________________________________REASONS OF THE COURT(Given by Gendall J)Application for recall[1] Mr Wilmshurst-Reti was convicted after a judge-alone trial inthe District Court at New Plymouth of wounding with reckless disregard and wassentenced to a term of imprisonment of two years and four months.1 He appealedsuccessfully to this Court against his conviction but, given that conclusion, there wasno need to consider his sentence appeal.2 He now applies for recall of that judgmentsolely with respect to the direction we had made in the judgment for a retrial. In itsplace, Mr Wilmshurst-Reti seeks that this Court should substitute a direction thata judgment of acquittal be entered.Background[2] Mr Wilmshurst-Reti's original conviction in the District Court for woundingwith reckless disregard was entered on 1 June 2018. The incident in question hadoccurred in the evening on a roadside on the outskirts of New Plymouth.The complainant was standing with friends alongside the roadway having been turnedaway from a crowded house party. A number of cars were parked on the roadside anda further car pulled up. Inside was a woman and two men, Mr Wilmshurst-Reti andhis cousin. Both men got out, one from the front passenger's seat and one from behindthe driver.[3] One of these men shoulder-barged one of the complainant's friends. The Judgefound the complainant had words with one of the men who then pushedthe complainant onto the road. An oncoming car travelling at about 100 kilometresper hour struck the complainant and he suffered very serious injuries.[4] Immediately afterwards, Mr Wilmshurst-Reti, his cousin and their femalecompanion got into their car and left the scene.1 R v Wilmshurst-Reti [2018] NZDC 16251.2 Wilmshurst-Reti v R [2019] NZCA 167.[5] As we have noted, Mr Wilmshurst-Reti was convicted in the District Court atNew Plymouth on one charge of wounding with reckless disregard.3The appeal[6] On Mr Wilmshurst-Reti's original appeal to this Court, we held among otherthings, that the Judge erred in her assessment of the evidence to such an extent thata miscarriage of justice had occurred. In our judgment at [42] we held that "[l]ookingat the evidence as a whole, we find here that there is no reasonable basis on whichthe Judge could have found the charge proved beyond reasonable doubt."[7] And, further, at [43] we found that "[t]he evidence before the Judge was notsufficiently clear to show beyond reasonable doubt that the appellant was the personwho pushed the victim onto the roadway".[8] Our judgment quashed the conviction for wounding with reckless disregardand ordered a retrial. The present recall application is brought in reliance on s 233 ofthe Criminal Procedure Act 2011. That section provides that if this Court allows a firstappeal, it must set aside the conviction and, amongst other options, it may direct thateither a new trial be held or a judgment of acquittal be entered.This Court's power to revisit its own decisions[9] The decision of this Court to allow Mr Wilmshurst-Reti's appeal and to directa retrial was a final decision. This Court in R v De Mey has noted:4Reconsideration of a final judgment of the Court can only take place inthe very rare circumstance that it is necessary because a fundamental error inprocedure would otherwise result in a substantial miscarriage of justice andno alternative remedy is reasonably available (R v Smith [2003] 3 NZLR 617para [36]). In all other circumstances a person who is dissatisfied witha judgment of [the Court of Appeal] must seek a remedy by way of appeal tothe Supreme Court of New Zealand.3 R v Wilmshurst-Reti [2018] NZDC 10679.4 R v De Mey CA44/05, 28 April 2005 at [4].[10] In that earlier mentioned decision, R v Smith, this Court stated:5The Court has inherent power to revisit its decisions in exceptionalcircumstances when required by the interests of justice. Such power is part ofthe implied powers necessary for the Court to "maintain its character as a courtof justice". Recourse to the power to reopen must not undermine the generalprinciple of finality. It is available only where a substantial miscarriage ofjustice would result if fundamental error in procedure is not corrected andwhere there is no alternative effective remedy reasonably available. Withoutsuch response, public confidence in the administration of justice would beundermined.The merits of an acquittal[11] Responding to Mr Wilmshurst-Reti's present application, the Crown has fileda memorandum which states:2. The Crown agrees in large part with the points made by the appellant.On finding there to have been insufficient evidence to sustain a guiltyverdict, the orthodox course would have been to enter an acquittal.3. That said, the point is largely academic now1 as the Crown sought —and was granted — leave to withdraw the charge in the District Courton the grounds that it is not in the public interest to proceed toa retrial_____________________________________1 "Arguably" because withdrawal of a charge under the Criminal Proceedings Act 2011does not necessarily preclude the relaying of the same charge in the future, thoughthe circumstances would likely have to be exceptional.[12] In exercising the discretion under s 233 of the Criminal Procedure Act to eitherenter a judgment of acquittal or direct a new trial be held, this Court is faced with nohard and fast rules. Notwithstanding that, it seems New Zealand courts have generallydeclined to order a new trial in situations where a conviction has been set aside becauseit cannot be sustained having regard to the evidence. This is in line with the approachtaken by the Privy Council in Reid v R which held that:6Save in circumstances so exceptional that their Lordships cannot readilyenvisage them [the power to order a new trial] ought not to be exercised where,as in the instant case, a reason for setting aside the verdict is that the evidenceadduced at the trial was insufficient to justify a conviction by a reasonable juryeven if properly directed. It is not in the interests of justice as administered5 R v Smith [2003] 3 NZLR 617 (CA) at [36].6 Reid v R [1980] AC 343 (PC) at 349–350.under the common law system of criminal procedure that the prosecutionshould be given another chance to cure evidential deficiencies in its caseagainst the defendant.[13] We accept that R v Smith establishes that, notwithstanding principles of finality,this Court does have an inherent power to reopen an appeal in exceptionalcircumstances where the interests of justice require. The Court's jurisdiction to hearMr Wilmshurst-Reti's appeal was a statutory one and the inherent power to reopen isstrictly limited, as the decision in R v Smith makes clear.[14] In our earlier decision allowing Mr Wilmshurst-Reti's appeal, essentially, wefound that his conviction was to be set aside because it could not be sustained havingregard to the evidence which was before the Judge. With this in mind, and notingthe submissions advanced for the Crown, first that the recall application was notopposed and, secondly, that although the point was largely academic now,the orthodox course in these circumstances would have been to enter an acquittal, weare satisfied the application for recall does come within the criteria set out in R v Smithand the broad interests of justice here mean that this is an appropriate case forthe exercise of this Court's limited power to reopen the earlier judgment.[15] A retrial should not have been ordered and an acquittal is to be substituted inits place. We note that in a second memorandum dated 28 May 2019, counsel advisesthat Mr Wilmshurst-Reti wishes to seek compensation for which the acquittal he hassought was necessary. That is a matter for Mr Wilmshurst-Reti. We took no accountof any intended compensation application he may choose to make in our ultimateconclusion that acquittal was the correct result.Result[16] Mr Wilmshurst-Reti's application for recall in respect of the direction for retrialis granted.[17] Orders are now made as follows:(a) This Court's judgment in [2019] NZCA 167 is recalled.(b) The judgment is amended and reissued with paragraphs [47], [48], [50]and Orders C, D and F of that judgment deleted and a new paragraph[47] substituted which reads as follows: "A judgment of acquittal isentered with respect to the charge of wounding with recklessdisregard."Solicitors:Crown Law Office, Wellington, for Respondent