Gray v The Queen

[2004] NZCA 77

IN THE COURT OF APPEAL OF NEW ZEALAND

CA213/03

THE QUEEN

v

TAMATI WILLIAM GRAY

Coram:Hammond J
Laurenson J
Doogue J

Appearances:  E Thomas for Crown

Judgment:25 May 2004 

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

[1]       On 19 July 1998 the appellant, Mr Gray, was convicted following a jury trial in the District Court at Auckland of attempted burglary, burglary and two counts of conversion.  On 23 July 1998 he was sentenced by Judge Roderick Joyce QC to two years imprisonment, suspended for two years, and ten months periodic detention.  Mr Gray’s appeal to this Court against his conviction was dismissed on an ex parte basis on 18 February 1999.

[2]       Mr Gray then applied for a rehearing of his appeal against his conviction in accordance with this Court’s decision in R v Smith [2003] 3 NZLR 617.

[3]       Ms Kennedy was appointed by the Legal Services Board.  Despite her best endeavours, she has been unable to contact Mr Gray, and the Board has now withdrawn her instructions.  Ms Kennedy had prepared, as best she was able, for the hearing.

[4]       An appeal, once lodged, can only be abandoned by the appellant.  We had considered whether Ms Kennedy could appear as an amicus, but given that the Board has entirely withdrawn her instructions, we consider that not now to be a possibility, even if it might otherwise have been appropriate.

[5]       In the circumstances as they now stand, we give Ms Kennedy leave to withdraw.  She has done all that she could do for Mr Gray, but is now clearly functus.  The appeal is dismissed for want of prosecution.

Solicitors:
Crown Law Office, Wellington