Reekers v R

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeHarrison J
Judgment Date31 Mar 2011
Neutral Citation[2011] NZCA 125
Docket NumberCA297/2010

[2011] NZCA 125

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Harrison, Clifford and Courtney JJ

CA297/2010

Between
Joseph Martin Reekers
Appellant
and
The Queen
Respondent
Counsel:

H D M Lawry for Appellant

A J F Perkins for Respondent

Application for recusal of one of the members of the Court of Appeal who had heard an appeal by the applicant against the imposition of a minimum non-parole period of 15 years for murder, on the grounds that the judge had previously acted for the appellant when the judge had been in practice as a lawyer — whether the appeal should be reheard before a differently constituted court on the grounds of potential bias.

Held: The question was whether a fair-minded lay observer might reasonably apprehend that there was a real and not remote possibility that Harrison J's impartiality might have been adversely affected, even if subconsciously, against Reekers, by the circumstances relating to his instructions in 1978.

The Guidelines for Judicial Conduct of 2005 were inconclusive on this question. Paragraph 78 outlined circumstances where a Judge should consider disqualification but they did not extend to this unique situation. The Guidelines suggested that disqualification may be appropriate where a Judge may have previously formed a view about former clients who appear as parties before him or her.

The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be. However a fair-minded lay observer might reasonably apprehend that Harrison J's impartiality may be subconsciously affected by his previous professional relationship with Reekers in evaluating the weight to be given to that factor when imposing a minimum term. That danger provided the necessary nexus between the Judge's previous dealing with Reekers, even if it was 32 years previously to this Court's disposition of his appeal. The appropriate course was for the appeal to be reheard before a differently constituted Court.

Application granted.

JUDGMENT OF THE COURT

A The recusal application is granted.

B The appeal is to be reheard before a differently constituted Court.

REASONS OF THE COURT

(Given by Harrison J)

1

An application by the appellant, Joseph Reekers, for recusal of one of the members of this Court has been made in unusual circumstances.

2

On 14 March 2011 we heard an appeal by Mr Reekers against the imposition of a minimum period of imprisonment of 15 years imposed by Stevens J in the High Court at Auckland when sentencing Mr Reekers to a term of life imprisonment for murdering Marie Jamieson in early 2001. 1

3

Mr Reekers was able to see and hear the argument before us by means of a video link from the prison.

4

Mr Lawry for Mr Reekers addressed first in support of the appeal. Towards the end of his argument in answer Mr Perkins for the Crown referred to Mr Reekers' previous offending. In particular, he relied on the circumstances relating to Mr Reekers' pleas of guilty to charges of rape and indecency in October 1978 when sentenced in the High Court to a term of five years imprisonment. Mr Perkins produced Sinclair J's brief sentencing notes which described counsel for Mr Reekers as “Harrison”.

5

The presiding Judge, Harrison J, who was in practice in Auckland in October 1978, advised Mr Perkins that he had no memory of representing Mr Reekers or of the circumstances of offending. Mr Perkins responded that he understood the “Harrison” to refer to Rodney Harrison, now Rodney Harrison QC. Mr Reekers remained silent during this exchange and thereafter until completion of argument when the Court reserved its decision.

6

On 21 March 2011, one week after the appeal was heard, Mr Lawry filed a memorandum. In summary Mr Lawry advised that Mr Reekers confirmed that it was Harrison J, not Mr Rodney Harrison QC, who represented him in October 1978; and that Mr Reekers now objected to Harrison J determining his appeal given his then counsel's knowledge of details which he raised with the Police on Mr Reekers' behalf at the time of sentencing.

7

The Crown opposes Mr Reekers' application. Mr Perkins submits that the objection taken by Mr Reekers is not of sufficient moment to warrant a rehearing of the appeal: first, because Harrison J has no memory of representing Mr Reekers and thus would not remember any discussions with him; and, second, both convictions in 1978 and in 2010 followed guilty pleas so that the issue for...

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