Ali v The King

[2023] NZCA 557

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)

1. 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.

2. 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.

3. 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].

4. 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. 

5. The application for leave to appeal is declined.

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