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Phillip Richard Joe v/s The Queen


Company & Directors' Information:- PHILLIP (INDIA) PRIVATE LIMITED [Active] CIN = U67110MH2005PTC157770

Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 672 of 2018

    Decided On, 11 May 2020

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE FRENCH
    By, THE HONOURABLE MR. JUSTICE MALLON & THE HONOURABLE MR. JUSTICE MOORE

    For the Appellant: A.J. Bailey, Advocate. For the Respondent: C.A. Brook, Z.A. Fuhr, Advocates.



Judgment Text


REASONS OF THE COURT

(Given by Moore J)

Introduction

[1] Phillip Joe was convicted following his trial on one charge of kidnapping, two charges of male assaults female and one charge of threatening to do grievous bodily harm. The charges related to two incidents which occurred on separate occasions, in February and May 2017. Both involved the same female complainant. In addition, Mr Joe pleaded guilty on the morning of trial to one charge of driving whilst disqualified. He was sentenced on those charges to a term of imprisonment of four years and six months.[1] Mr Joe was also disqualified from holding or obtaining a driver’s license for a period of 18 months.

[2] Mr Joe appealed to this Court against sentence.[2] He was unsuccessful. He then applied for leave to appeal to the Supreme Court, alleging three errors in this Court’s judgment. The Supreme Court suggested the appropriate course was for him to apply to recall this Court’s judgment.[3] This judgment deals with that application.

The errors

[3] The first of the matters raised by Mr Joe is that the appeal was dealt with on the basis that one of the two convictions for male assaults female involved what the complainant described as a “round house” kick to the head (Charge 11). This was an error because Mr Joe was acquitted on Charge 11. The charge he was in fact convicted on (Charge 9) involved a punch to the complainant’s head which took place during the course of the same incident.

[4] The second complaint is that the concurrent sentences of three years and nine months’ imprisonment imposed on the two male assaults female convictions were in excess of the statutory maximum of two years.[4] This was an error originally made in the District Court but not corrected by this Court on appeal.

[5] Thirdly, Mr Joe submits that this Court wrongly treated a remark the complainant claimed was made in the course of one of the incidents as a threat to kill. When outlining Mr Joe’s offending, we said:

[15] The detention ended when Mr Joe told R to get back in the car. He said he would drop her off, adding “... ride or die we’re in this together”, a reference which R understood to be to Bonnie and Clyde. ...

[6] The Crown accepts that this Court erred in considering the appellant’s sentence on the basis of Charge 11, rather than Charge 9. It also accepts that the sentencing Judge erred by failing to impose concurrent sentences for the male assaults female charges within the statutory penalty range for that crime. The Crown does not oppose this Court’s judgment being recalled and reissued to correct these two errors. However, the Crown submits that in relation to the third alleged error, no prejudice arises from the Court’s reference to Mr Joe’s remark.

The law

[7] The jurisdiction conferred on this Court by statute does not include the power to rehear appeals which have been finally disposed of.[5] But the Court has an inherent power to revisit by way of recall earlier decisions in exceptional circumstances when required by the interests of justice to do so. Thus it was said in R v Smith:[6]

Such power is part of the implied powers necessary for the Court to “maintain its character as a court of justice”. Recourse to the power to reopen must not undermine the general principle of finality. It is available only where a substantial miscarriage of justice would result if fundamental error in procedure is not corrected and where there is no alternative effective remedy reasonably available. Without such response, public confidence in the administration of justice would be undermined.

[8] As this Court recently explained in Lyon v R three preconditions must be met for an application for recall to be granted:[7]

(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.

Discussion

[9] In respect of the first error, this Court relied on the correctness of the Crown charge list contained in the case on appeal. This was incorrectly annotated by the District Court which recorded a conviction on the wrong charge; that is, the round house kick. It was not corrected when included in the case on appeal. In a footnote to [13] of our judgment we made the following observation:

We note that Judge O’Driscoll ... sentenced Mr Joe on the basis that he was acquitted of the [round house kick] and instead convicted of a different male assaults female charge (Charge 9), which alleged that he punched her to the head. But the annotated Crown Charge List records that Mr Joe was acquitted of Charge 9 and found guilty of Charge 11, which was the roundhouse kick. We do not consider the discrepancy affected the Judge’s sentence in a material way, but proceed to consider Mr Joe’s appeal on the basis that he should have been sentenced for Charge 11.

[10] It is now apparent that the Judge was correct in his description of the charge and the annotated charge list was wrong.

[11] However, this inadvertence was not material to the outcome of the appeal. The error does not change the overall assessment of Mr Joe’s culpability. Rather than delivering a kick to the complainant’s head, the conviction related to Mr Joe punching her to the head. It is only the mechanism by which the complainant’s head was struck which is different. As we observed in our decision, viewed in the overall context of the offending that conduct is no less serious. For this reason, we are of the view Mr Joe’s final sentence requires no adjustment. However, the correct factual position as to which charge Mr Joe was sentenced on requires clarification.

[12] The second error also requires correction. The concurrent sentences for the male assaults female convictions are effectively subsumed within the significantly longer sentence on the lead charge (kidnapping). The imposition of a sentence in excess of the statutory maximum is plainly an error. In his oral submissions to us on the appeal Mr Bailey submitted that the Court should correct the purported sentences imposed in excess of their maximum penalties. The difficulty for Mr Joe is that this Court does not have jurisdiction to correct that error on recall, for reasons set out below.

[13] The sentences are unlawful. We are of the view that the appropriate sentence for each of the male assaults female charges should be one year.

[14] We are not persuaded that the third alleged error, the Court’s “ride or die” reference, requires correction. This was simply part of the factual narrative describing the context of Mr Joe’s offending. It was not suggested this comment was the subject of an individual charge or was held to be aggravating in any way. No fundamental error is made out. Nor can there be any suggestion that the inclusion of those words could have led to a miscarriage of justice.

[15] What then is the correct mechanism by which the errors should be rectified?

[16] Rule 45B of the Court of Appeal (Criminal) Rules 2001 provides:

45B Correction of accidental slip or omission

(1) This rule applies if—

(a) any judgment or order or the reasons for any judgment or order contain a clerical mistake or an error arising from any accidental slip or omission (whether the mistake, error, slip, or omission was made by an officer of the court or not); or

(b) any judgment or order is so drawn up as not to express what was actually decided and intended.

...

[17] Lyon v R confirmed that this statutory power is limited and cannot be used to correct a slip or omission that would alter the substance of a decision:[8]

The power is often used where some change must be made to protect confidentiality or where on reflection correction must be made to orders pronounced. It is seldom controversial and requires no further commentary in this judgment, for none of the applications before us engage this exception.

[18] Rule 45B is frequently used to correct minor errors in judgments but is less frequently cited in decisions. There seem to be only two decisions discussing the provision that are widely available. On the first occasion, the Court amended a warrant of imprisonment that did not match the sentence imposed.[9] Plainly that was the kind of accidental slip contemplated by the rule. The second was a good deal more substantive. It involved an appeal against a conviction judgment reissued to correct two mistakes:[10]

(a) First, in its description of the facts the Court incorrectly stated that trial counsel had referred a juror to the appellant’s partner. Counsel had not done this. In fact the juror and the appellant’s partner already knew each other. The Court stated that while this information gave rise to other concerns it did not mean that a miscarriage of justice had occurred.

(b) Secondly, the appellant’s counsel objected to a line in the judgment suggesting that she improperly submitted material provided by a juror to the Court, when in fact she had obtained a letter from the District Court. This Court accepted this was an error.

[19] The judgment was re-issued with a substantially rewritten section, removing the offending assertions of fact. The Court noted that r 45B was used because the end result and the essential reasoning of the judgment remained unchanged.

[20] We are satisfied that r 45B permits the Court to correct the first error. It arises from an accidental slip or omission, being the District Court’s inadvertent transposition of the jury’s verdicts on the Crown charge list. As already discussed, that error does not change our conclusion that the end sentence was not manifestly excessive.

[21] As to the second error, the imposition of sentences in excess of the statutory maximum on the male assaults female charges plainly was not able to be imposed by law. Section 180 of the Criminal Procedure Act 2011 is relevant:

(1) If any sentence is one that could not by law be imposed, or if the court does not impose a sentence that is required by law to be imposed, the court may impose a new sentence—

(a) on the application of either of the parties or, as provided in section 181, the chief executive of the Department of Corrections; or

(b) on its own motion.

[22] The Court for the purposes of s 180 is the sentencing court.[11] Given the third precondition in Lyon, that there has to be no alternative effective remedy to recalling the judgment, this Court has no power to correct the second error by way of recall. Instead, counsel may, if they wish, apply to the District Court to amend the sentence. In our judgment we did not explicitly refer to the male assaults female senten

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ces. Thus, there is no error on the face of our decision. Result [23] The application for recall is granted. [24] We recall the judgment of this Court in Joe v R of 29 August 2019.[12] The judgment is amended and reissued as follows: (a) All of the text in [13] of the judgment is to be deleted and substituted with the following: “At one point Mr Joe punched R in the head.” (b) Footnote 8 is to be deleted. (c) The last sentence of [35] is to be deleted. ---------------------------------------------------------------------------- [1] R v Joe [2018] NZDC 22723. [2] Joe v R [2019] NZCA 394. [3] Joe v R [2019] NZSC 120. [4] Crimes Act 1961, s 194(b). [5] F (CA270/2019) v R [2019] NZCA 447 at [5]. [6] R v Smith [2002] NZCA 335; [2003] 3 NZLR 617 (CA) at [36]. [7] Lyon v R [2019] NZCA 311 at [27]. [8] At [22]. [9] Van Wakeren v Chief Executive of the Department of Corrections [2012] NZCA 22. [10] R v T [2008] NZCA 119 at Appendix. [11] Criminal Procedure Act 2001, s 180(2). [12] Joe v R, above n 2.
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