Fearn v The Queen

[2010] NZCA 354

IN THE COURT OF APPEAL OF NEW ZEALAND

CA270/2009
[2010] NZCA 354

BETWEENDAVID JAYSON FEARN

Appellant

ANDTHE QUEEN

Respondent

Hearing:2 August 2010

Court:Ellen France, Gendall and Courtney JJ

Counsel:No appearance for Appellant

H Ebersohn for Respondent

Judgment:5 August 2010 at 3 pm 

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Gendall J)

[1]        This appeal against conviction on a count of arson was dismissed for want of prosecution.  Mr Fearn’s initial appeal was also against his sentence but the Court’s Minute dated 8 February 2010 records that he did not intend to pursue a sentence appeal.

[2]        The appellant was convicted of arson in the District Court at Dunedin on 12 March 2009 and was sentenced to two years’ imprisonment and ordered to pay reparation of $1,281.60.[1]  He appealed but sought an adjournment when he appeared in person before this Court on 8 February 2010, on the basis that he had not been able to instruct a lawyer.  That adjournment was granted on strict terms, which are set out in the Court’s Minute imposing a timetable to give the appellant something in excess of eight weeks to instruct a lawyer, obtain legal aid and prepare grounds of appeal.

[1]      R v Fearn DC Dunedin CRI 2007-005-438, 6 April 2009.

[3]        No further communication was received from the appellant.  He was advised on 8 June and 23 June 2010 of the date and time for the hearing of his appeal and confirmation was requested that submissions would be filed by 12 July 2010.  No response has been received and the Court has had no indication of the grounds upon which the appellant sought to advance his appeal.  The appellant, who has now served his sentence, did not appear when the matter was called.  It is now over 18 months since the appellant’s conviction and the Court is not prepared to extend any further time for him to pursue the appeal, which is dismissed for want of prosecution.

[4]        For completeness we simply add that on a reading of the papers it is apparent that the Crown had a strong circumstantial case and the jury was entitled to reach its verdict on the basis of the evidence presented.  Further, there is nothing in the Judge’s summing-up which would have given this Court any concern.

Solicitors:

Crown Law Office, Wellington for Respondent