Ali v The King

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA307/2023
[2023] NZCA 557

BETWEEN	ASHIK ALI Applicant
AND	THE KING Respondent

Court:	Cooper P, Palmer and Jagose JJ
Counsel:	S Kumar for Applicant C A Brook for Respondent
Judgment: (On the papers)	8 November 2023 at 11.00 am

JUDGMENT OF THE COURT

The application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Palmer J)

On 1 February 2022, Mr Ashik Ali, the applicant, pleaded guilty in the District Court to a representative charge of male assaults female.[1] He was not convicted because he indicated his intention to seek a discharge without conviction. On 30 September 2022, with advice from new counsel, Mr Ali applied to vacate his guilty plea under s 115 of the Criminal Procedure Act 2011 (the Act). On 28 April 2023, the District Court declined the application.[2]
[1]Crimes Act 1961, s 194(b).
[2]R v Ali [2023] NZDC 7477.
Mr Ali now applies for leave to appeal that decision on two questions:
(a)whether the Court has a residual discretion to refuse leave to withdraw a guilty plea when the criteria for doing so have been made out; and
(b)whether the criteria for withdrawing a guilty plea are made out in a scenario where four factual propositions establish trial counsel error.
The appeal is proposed to be brought under s 296 of the Act, which applies where a person has been charged with an offence.[3] Section 296(2) requires the appeal to be “on a question of law against a ruling by the trial court”. But neither of Mr Ali’s questions of law satisfy that requirement:
(a)The first question does not qualify because the District Court expressly found that the criteria for withdrawing a guilty plea had not been made out on the facts.[4]
(b)The second does not qualify because the District Court expressly rejected all four factual propositions.[5]
[3]Criminal Procedure Act 2011, s 295(1).
[4]R v Ali, above n 2, at [28]–[29].
[5]At [18]–[19] and [24]–[26].
The proposed appeal would be on matters of fact, not issues of law as is required. Accordingly, this Court does not have jurisdiction to entertain the proposed appeal under s 296 of the Act.
The application for leave to appeal is declined.

Solicitors:
Sanjay Barristers & Solicitors, Auckland
Te Tari Ture o te Karauna | Crown Law Office, Wellington

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application from Mr Ashik Ali to appeal against the District Court's decision to decline his application to vacate his guilty plea for an offence of male assaults female. The District Court's decision was based on the grounds that the criteria for withdrawing a guilty plea had not been made out. Mr Ali's appeal hinged on two questions, namely whether the Court retains a discretionary power to refuse leave to withdraw a guilty plea even when the criteria are met and whether the criteria are satisfied in the context of alleged trial counsel error. The appeal was brought under Section 296 of the Criminal Procedure Act 2011.

The Court of Appeal found that neither of Mr Ali's questions of law were suitable for appeal under the specified provisions of the Act. The Court noted that the District Court had already determined that the criteria for withdrawing a guilty plea had not been established and that all four factual propositions supporting the alleged trial counsel error were rejected. Therefore, the questions proposed for appeal were not questions of law but rather matters of fact, which are not within the jurisdiction of the Court of Appeal under Section 296 of the Act. Consequently, the application for leave to appeal was declined.

The Court's reasoning was rooted in the statutory framework governing appeals in criminal cases, where the Court of Appeal is limited to questions of law and not factual determinations made by the trial court. The District Court's findings were clear and specific, addressing both the discretionary power and the criteria for withdrawing a guilty plea. As such, the appeal did not meet the jurisdictional requirements for the Court of Appeal to hear it.

The final orders of the Court of Appeal were that the application for leave to appeal the District Court's decision was declined. The Court did not find any basis under the Criminal Procedure Act to entertain the appeal, affirming the District Court's findings on both the discretionary power and the factual criteria for withdrawing a guilty plea.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established