Javed v The the King
[2022] NZCA 587
•30 November 2022 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA703/2018 [2022] NZCA 587 |
| BETWEEN | ABDUL JAVED |
| AND | THE KING |
| Court: | Brown, Mallon and Downs JJ |
Counsel: | No appearance for the Appellant |
Judgment: | 30 November 2022 at 11.00 am |
JUDGMENT OF THE COURT
The appeal is dismissed for non-compliance with a procedural order.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brown J)
Mr Javed’s conviction
Following a trial by jury in the District Court at Manukau in August 2018, Mr Javed was found guilty of one charge of aggravated burglary. On 11 October 2018 he was sentenced by Judge Wharepouri in respect of that charge to three years and nine months’ imprisonment.[1] Prior to trial he had pleaded guilty to a number of other charges, namely indecent assault, breach of sentences of community work and supervision, and possession of a pipe, utensils, cannabis and methamphetamine. On each of those charges he was sentenced to one month’s imprisonment, with all sentences to be served concurrently.
The appeal
[1]Police v Javed [2018] NZDC 21691.
On 19 November 2018 he filed a notice of appeal against his conviction on the charge of aggravated burglary. The grounds of appeal were:
Lack of Evidence.
Potential Trial Lawyer Incompetence.
Timetabling directions were made for the filing of the affidavits required by r 12A of the Court of Appeal (Criminal) Rules 2001 (the Rules). On 15 January 2019 an extension of four weeks for filing affidavits was sought by counsel for Mr Javed, to which the Crown consented.
In a minute dated 21 March 2019, Williams J granted Ms Maxwell-Scott leave to withdraw as counsel for Mr Javed. Mr Foley was instructed as counsel and the Crown consented to an extension of time until 29 August 2019 in order to review the file.
On 20 August 2019 French J granted Mr Foley leave to withdraw as counsel and directed that a telephone conference be held on 28 August 2019 to discuss the progress of the appeal. The conference was adjourned to 2 October 2019 to enable Mr Javed to communicate with Legal Aid.
At a telephone conference on 3 October 2019 Mr Javed advised that, having made no progress with Legal Aid, he would represent himself. He agreed to waive solicitor/client privilege and to file a written statement detailing his grounds of appeal. In the interests of time the Crown agreed that the material relating to trial counsel error need not be in the form of a sworn affidavit at that stage. On 24 October 2019 and 4 November 2019 letters were received from Mr Javed detailing his concerns.
On 10 December 2019 a detailed affidavit was filed of Mr Cooke, counsel for Mr Javed at his trial.
In a minute dated 25 May 2020, following a telephone conference on that same day, French J recorded that the hearing of the appeal would necessitate cross‑examination of both Mr Javed and Mr Cooke. The appeal was set down for a half-day hearing on 23 July 2020 in Auckland.
On 22 June 2020 Mr Javed signed and filed a notice of abandonment of his appeal. However it appears that his intention was merely to abandon the hearing date (that is, seek an adjournment) rather than the appeal itself. His application for leave to withdraw the notice of abandonment was granted in a judgment dated 13 July 2020.[2] The Court directed the registrar to allocate a new hearing date after mid-September 2020, if possible in Wellington. A new fixture was allocated for 23 March 2021 in Wellington. It appears that Mr Javed was released from Manawatu Prison on 2 March 2021.
[2]Javed v R [2020] NZCA 282.
Mr Javed then applied for an adjournment of the March 2021 fixture. The application was granted by Collins J on 1 March 2021. The Judge directed that Mr Javed’s submissions were to be filed by 23 April 2021 and that the appeal was to be set down again for hearing as soon as possible.
A number of telephone communications followed between Mr Javed and the Registry in which he continued to indicate that he would be applying for reconsideration of his request for legal aid. However Legal Aid confirmed on 2 August 2022 that no application had been received. Mr Javed had stopped answering calls from the Registry. In those circumstances, Collins J directed on 18 August 2022 that the appeal be set down for hearing on the papers. Mr Javed was directed to file written submissions by 20 September 2022. He did not file any submissions.
The s 338 notice
Section 338(1) of the Criminal Procedure Act 2011 (CPA) empowers this Court to dismiss an appeal if an appellant fails to comply with timetable or other procedural orders fixed for the appeal. Before dismissing an appeal on that basis, this Court must give the appellant 10 working days’ notice of its intention to dismiss the appeal.[3]
[3]Criminal Procedure Act 2011, s 338(2).
On 13 October 2022 the Court issued a minute summarising the history of the appeal and advising that the failure by Mr Javed to file submissions amounted to non‑compliance with a procedural order in terms of s 338(1) of the CPA. The minute provided 10 working days’ notice of the Court’s intention to dismiss the appeal as required by s 338(2).[4]
[4]Javed v R CA703/2018, 13 October 2022 at [6].
The Court directed the Crown to ask the police to ascertain Mr Javed’s whereabouts so as to serve the notice effectively.[5] In a memorandum dated 7 November 2022 Ms Fenton, counsel for the Crown, advised that on 14 October 2022 police attended Mr Javed’s last known address at 698 Pioneer Highway, Palmerston North, which is his address for the purposes of r 42 of the Rules. The occupant informed the officer that Mr Javed no longer lived in or owned the property.
[5]At [7].
Police then attempted to locate Mr Javed at an address in Hamilton, but the occupant of that property informed the officer that Mr Javed had moved out in April 2022 and that they had no new address or details for him. A police officer also attempted, without success, to reach Mr Javed on his last known cell phone number.
We consider that these efforts sufficed for the giving of notice pursuant to r 42(a) of the Rules. Mr Javed did not rectify his non-compliance with the direction to file submissions within the notice period.[6]
Discussion
[6]Criminal Procedure Act, s 338(3).
On the basis of the detailed affidavit of Mr Cooke, it is difficult to see how Mr Javed could succeed on either of his nominated grounds of appeal. In his DVD interview with the police Mr Javed initially denied the burglary. However, when informed that his fingerprints were found on a windowsill, he changed his account. He admitted the burglary but claimed that he never actually entered the house.
Mr Javed elected to give evidence (a choice confirmed in writing), being aware that this provided an opportunity to tell the jury his account. The verdict implies this account was rejected which, on the evidence, we think unremarkable.
In these circumstances we do not consider that it is arguable that a miscarriage of justice occurred.
We note that Mr Javed’s appeal was filed in 2018 and has been beset by a series of delays since that time. This Court has already made generous allowances, including granting Mr Javed’s application to withdraw his notice of abandonment. Mr Javed never applied for reconsideration of his legal aid request, despite leading the Court to believe he had done so. Lastly, the public has an interest in the finality of these court proceedings, as does the victim of Mr Javed’s offending. This is an appropriate case for the exercise of this Court’s discretion under s 338 of the CPA.
Result
The appeal is dismissed for non-compliance with a procedural order.
Solicitors:
Crown Law Office, Wellington for Respondent
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