Ellis v The Queen - [2013] NZCA 185

IN THE COURT OF APPEAL OF NEW ZEALAND

CA720/2011
[2013] NZCA 185

BETWEEN	AARON PATRICK JOHN ELLIS Appellant
AND	THE QUEEN Respondent

Court:

Randerson, Harrison and Stevens JJ

Counsel:

Appellant in person
Crown Law Office for Respondent

Judgment:

(On the papers)

30 May 2013 at 10.15 am

JUDGMENT OF THE COURT

The appeal is dismissed for non-compliance with procedural orders.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

The appellant, Aaron Patrick John Ellis, pleaded guilty in the District Court to a charge of threatening to kill his brother Shayne Ellis contrary to s 306 of the Crimes Act 1961. On 26 September 2011 he was sentenced by Judge McKegg by being convicted and discharged.[1] The appellant filed an appeal against conviction on 28 October 2011.
[1]R v Ellis DC Wellington CRI-2010-031-1161, 26 September 2011.
As shown by the outline that follows, there has been a lengthy history of non‑compliance by the appellant with procedural orders. The issue for the Court is whether this is an appropriate case to exercise the statutory power under s 338 of the Criminal Procedure Act 2011 to dismiss the appeal for non-compliance with procedural orders.

Background

The grounds of appeal included a ground concerning the conduct of the appellant’s counsel and a suggestion that further evidence had become available since the District Court hearing. These grounds resulted in the standard directions being given under r 12A(1) and r 12A(2) and r 12B(1) and r 12B(2) of the Court of Appeal (Criminal) Rules 2001 by minute dated 29 November 2011. The appellant was directed to comply with such directions on or before 3 February 2012.[2] The directions were not complied with.
[2]Minute of Stevens J dated 29 November 2011.
The file was referred by the Registry to a Judge for further case management in early October 2012. A follow-up minute was issued on 9 October 2012. By that stage, the appellant had failed for some 10 months to comply with directions. Because he was self-represented a further extended time for compliance with the earlier directions was allowed.[3] The appellant was told that any failure to comply with the latest directions could result in a final warning being given under s 338 of the Criminal Procedure Act. Again, the directions were not complied with.
[3]Minute of Stevens J dated 9 October 2012, in which the time for compliance was extended to 14 December 2012.
Two further minutes were issued giving the appellant procedural directions.[4] The directions given in these minutes have not been complied with. The final minute of 16 April 2013 contained the following warning:
[4] It is now appropriate for the Court to invoke the power in s 338 of the Criminal Procedure Act 2011. I propose to dismiss the appeal because the appellant has on three occasions failed to comply with procedural orders fixed for the appeal.
[5] Accordingly the appellant is given notice that, unless the appellant rectifies the default and complies with the orders to provide the information…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ellis v The Queen

Details

AGLC: Ellis v The Queen [2013] NZCA 185
Case: [2013] NZCA 185
Decision Date: 30 May 2013 at 10.15 am

CaseChat Overview and Summary

Aaron Patrick John Ellis appealed against his conviction and sentence for threatening to kill his brother, Shayne Ellis, in breach of section 306 of the Crimes Act 1961. The District Court had convicted and discharged him, and he filed an appeal on 28 October 2011. The Court of Appeal, consisting of Randerson, Harrison, and Stevens JJ, dismissed the appeal for non-compliance with procedural orders. The appellant, represented in person, did not adhere to several procedural orders issued by the Court, despite multiple warnings and extensions of time for compliance. The Court found that the appellant had ample opportunity to comply with the orders and that his claims of not receiving the notices were contradicted by his own correspondence. The Court concluded that the appellant's non-compliance warranted the exercise of its power under section 338 of the Criminal Procedure Act 2011 to dismiss the appeal. The appeal was dismissed, and the conviction and discharge in the District Court were upheld.

Orders