Reekers v R
| Jurisdiction | New Zealand |
| Judge | Harrison J |
| Judgment Date | 31 March 2011 |
| Neutral Citation | [2011] NZCA 125 |
| Docket Number | CA297/2010 |
| Court | Court of Appeal |
| Date | 31 March 2011 |
[2011] NZCA 125
Harrison, Clifford and Courtney JJ
CA297/2010
IN THE COURT OF APPEAL OF NEW ZEALAND
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.
H D M Lawry for Appellant
A J F Perkins for Respondent
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)
An application by the appellant, Joseph Reekers, for recusal of one of the members of this Court has been made in unusual circumstances.
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
Mr Reekers was able to see and hear the argument before us by means of a video link from the prison.
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”.
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.
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.
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 adjudication related solely to quantum of sentence unconnected to issues of credibility. He also points to the passage of time since 1978 and notes, significantly, that Harrison J was then representing Mr Reekers rather than prosecuting him.
Mr Reekers' stated ground for objection is untenable given that Harrison J does not remember representing Mr Reekers or the circumstances of the offending. However, a different issue arises. The question is 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 Mr Reekers by the circumstances relating to his instructions in 1978.
The Guidelines for Judicial Conduct dated 4 August 2005 are inconclusive on this question. 2 Paragraph 78 outlines circumstances where a Judge should consider...
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