Dorn v Police

[2023] NZHC 3827

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-109

[2023] NZHC 3827

BETWEEN

DARSHINI AMY DORN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Submissions filed:

13 November 2023, 14 December 2023

Counsel:

E A Hall for Appellant

G C Collett for Respondent

Judgment:

20 December 2023

JUDGMENT OF OSBORNE J

[Recall]

[1]                 Darshini Dorn asks the Court to recall a decision by which (in November 2021) the Court declined her leave to appeal against conviction and sentence that had been entered in the District Court.

Background

[2]                 Ms Dorn was prosecuted by the police in mid-2020 on six charges covering disorderly behaviour (3), assaulting police (2) and intentional damage (1).

[3]She initially pleaded not guilty.

[4]                 At a case review hearing in September 2020, she, through her assigned lawyer, entered guilty pleas to three of the charges (one of each kind) and the remaining charges were withdrawn by leave. She was convicted and sentenced the same day to a term of supervision for nine months and a reparation order of $269.

DORN v POLICE [2023] NZHC 3827 [20 December 2023]

[5]                 Ms Dorn says that she was unwell through this period, and thought she had been discharged without conviction upon completion of her supervision. She subsequently became aware that was not so.

[6]                 She made an application to this court for leave to appeal against conviction and sentence out of time.

[7]                 She says there was a breakdown in communication between her lawyer (employed by the Public Defence Service) and herself, occasioned by PDS not updating a new residential address.

[8]                 In the period before her application was called in this court, her lawyer signalled to the Court that he had lost contact with her.

[9]                 When the application was called on 18 November 2021, the lawyer confirmed that he still had no contact from her. I was informed the Registry’s attempts to contact her had also failed.

[10]There being no appearance by Ms Dorn I declined leave to appeal.

Application to recall judgment

[11]             Through new counsel (Ms Hall) Ms Dorn now seeks the recall of the decision declining leave to appeal.  The application is supported by a detailed affidavit of   Ms Dorn in which she identifies serious mental health issues she has suffered, including a crisis leading into 2020.

[12]             She refers to the events of her representation in the District Court to explain the basis upon which an appeal would have been pursued if leave were granted.

[13]             She exhibits email correspondence with the (PDS) lawyer who was acting for her on her leave application which clearly indicates that the reason for her lack of contact with the lawyer was that PDS had not updated their internal computer system, with the consequence the lawyer’s correspondence was not reaching her. It was that lack of contact that led to her application for leave to appeal being declined.

[14]             Ms Dorn also explains that she has subsequently had to prioritise her mental health and physical safety and then, having applied for legal aid to retain Ms Hall, there was some delay in obtaining relevant files to enable recall to be pursued.

Grounds of recall

[15]             The Supreme Court in Uhrle v R,1 and the Court of Appeal in Lyon v R,2 identified three grounds on which recall may be granted. The third is where for some very special reason (other than the other two), justice requires that a judgment be recalled.

[16]             This is a particularly high threshold and recall is not ordinarily available where the applicant has a further right of appeal or the ability to seek leave to do so. A probable injustice that is substantial or significant (if recall is not granted) must be established.3

Discussion

[17]             Ms Collett, appearing for the respondent, has responsibly accepted that the circumstances of this case and the interests of justice warrant the grant of recall. There is no further right of appeal available to Ms Dorn.

[18]I agree justice requires the recall of the judgment.

[19]             Recall in this case is not an indulgence but is instead a straight forward step to repair a situation in which communication between Ms Dorn and her solicitor was lost through an administrative error in the solicitor’s office. If recall is granted, the Court will then be able to consider on the merits, for the first time, Ms Dorn’s leave application.

1      Uhrle v R [2020] NZSC 62.

2      Lyon v R [2020] NZCA 430.

3      Lyon v R, above n 2, at [19].

Outcome

[20]             I recall the Court’s decision dated 18 November 2021. I allocate Wednesday, 7 February 2024 at 10.00 am for the call of Ms Dorn’s application for leave to appeal.

Osborne J

Counsel:

E A Hall, Barrister, Wellington for Appellant Crown Solicitor, Christchurch for Respondent