Biddle v R

[2021] NZSC 129

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

 SC 35/2021
 [2021] NZSC 129

BETWEEN	RIHARI CHANCE MATTHEW BIDDLE Applicant
AND	THE QUEEN Respondent

Court:	O’Regan, Ellen France and Williams JJ
Counsel:	N P Chisnall for Applicant M R L Davie for Respondent
Judgment:	7 October 2021

JUDGMENT OF THE COURT

The application for recall of this Court’s judgment of 19 July 2021
(Biddle v R [2021] NZSC 89) is dismissed.

____________________________________________________________________

REASONS

1. On 19 July 2021, this Court dismissed Mr Biddle’s application for leave to appeal against the decision of the Court of Appeal dismissing his appeal to that Court against his convictions for rape.[1]

   [1]Biddle v R [2021] NZSC 89; and Biddle v R [2021] NZCA 57 (Goddard, Lang and Hinton JJ).

2. Mr Biddle now applies for recall of this Court’s judgment.  He argues that there is “a very special reason” why the Court should recall its judgment.[2]  As this Court made clear in its judgment in Uhrle v R, recall is an exceptional step. 

   [2]Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [29], referring to Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

3. The “very special reason” is said to be that this Court misconstrued and misapplied s 74 of the Senior Courts Act 2016.  That section provides that the Court must not give leave to appeal unless it is satisfied that it is necessary in the interests of justice for the Court to hear and determine the appeal.  The Court was not so satisfied in the present case.

4. The points advanced in support of the application take issue with the Court’s findings or involve relitigation of points already determined by the Court when refusing leave.  That is inappropriate.  The fact a party disagrees with a decision is not “a very special reason” to recall the decision.  The applicant’s arguments that this Court misconstrued and misapplied s 74 are wrong.  The Court is not obliged to give leave to appeal when it considers that the point the applicant wishes to pursue if leave is given would not be likely to resolve the proposed appeal in the applicant’s favour.[3] 

   [3]LFDB v SM [2014] NZSC 197, (2014) 22 PRNZ 262 at [19]–[21]; and Ngaronoa v Attorney-General [2017] NZSC 183 at [2].

5. No reason, let alone a very special reason, for recall of the leave judgment has been established.  The application for recall is therefore dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent