Koya (aka Anish) v The Queen
[2014] NZCA 402
•12 September 2014 at 2 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA387/2012 [2014] NZCA 402 |
| BETWEEN | JOSELYNE PRAVEEND KOYA (AKA JOSELYNE ANISH) |
| AND | THE QUEEN |
| Hearing: | 20 August 2014 |
Court: | O’Regan P, Simon France and Mallon JJ |
Counsel: | Applicant in person |
Judgment: | 12 September 2014 at 2 pm |
JUDGMENT OF THE COURT
The application to extend the period of time within which to appeal conviction and sentence is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
Introduction
Ms Koya applies for an extension of time within which to file an appeal against conviction and sentence. Her conviction for obtaining by deception was
entered on 29 June 2007 following a guilty plea. The sentence of 12 months’ imprisonment has been served.[1]
[1]New Zealand Police v Anish (aka Koya) DC Wellington CRI‑2005‑032‑3838, 29 August 2007 [sentencing notes].
Randerson J initially indicated, in late 2012, that the application for an extension of time would be heard at the same time as the intended appeal.[2] Following a series of adjournments, the hearing was scheduled before us on 20 August 2014. Developments occurring between the initial decision of Randerson J and the day of the hearing led us to determine that the application for an extension of time should be heard separately and would be determined on the basis of the written material before the Court. This is the decision on that application.
Background
[2]Koya v R CA387/2012, 17 October 2012 (Minute of Randerson J).
In 2003 Ms Koya was a restaurateur operating two businesses. She suffered a back injury at work and started receiving weekly compensation. Throughout that time, however, and unknown to the Accident Compensation Corporation (ACC), she continued to receive payments from her businesses.
Ms Koya was charged with using a document (earnings certificate) with intent to defraud, and with obtaining by deception weekly compensation totalling $89,500. Prior to trial there had been a fully argued application under s 347 of the Crimes Act 1961. Although unsuccessful, it apparently led to a change in the charges which had initially focused on the presentation of 24 medical certificates.
The matter went to trial on the two amended charges, with Ms Koya being represented by Mr Vincent. The prosecution called a fraud officer from ACC and a forensic accountant. Both were extensively cross examined. The accountant’s evidence concluded around the time of the lunch adjournment on day two. It seems that at that point there were discussions culminating in Ms Koya pleading guilty to the charge of obtaining by deception, and being discharged on the charge of using a document with intent to defraud.
Between conviction and sentencing Ms Koya changed lawyers. Full sentencing submissions were filed by Ms Baigent, and Judge Radford sentenced Ms Koya to 12 months’ imprisonment with leave to apply for home detention on 29 August 2007.[3]
[3]Sentencing notes, above n 1.
On 19 December 2011 Ms Koya, having again obtained new counsel, filed an appeal. The appeal grounds were that her trial counsel, Mr Vincent, had not represented her properly. Ms Koya claimed that:
(a)before trial she did not have a proper interview with Mr Vincent; and
(b)that Mr Vincent told her to plead guilty or she would go to jail for 24 months.
History of appeal
The appeal filing was initially rejected by this Court because it was believed Ms Koya had been convicted summarily and that therefore the appeal lay to the High Court. This was resolved and this Court then sought the relevant District Court files. It took some time for the District Court to locate them. Accordingly, it was only on 17 October 2012 that a mode of hearing decision was made.
As noted, Randerson J directed the application for an extension of time be heard concurrently with the appeal. It was noted that the appeal involved a challenge to trial counsel, and 16 November 2012 was set as the date by which Ms Koya was to file any evidence, and a waiver if she intended to. At the request of her then appellate counsel, Mr Nisbet, this was extended to 5 February 2013 as he was having difficulty contacting his client.
On 7 March 2013 Mr Nisbet advised the Court that he had heard from Ms Koya and the appeal was to proceed. A timetable was again set, requiring Ms Koya to file her material by 22 March 2013. In consultation with counsel, a fixture date of 15 May 2013 was set.
On 9 April 2013 Mr Nisbet wrote explaining that it was taking more time than usual to progress matters with Ms Koya but he was hopeful that submissions would be filed by 23 April 2013. On 30 April 2013 an affidavit from Ms Koya was filed.
Crown counsel then contacted the Court and noted the difficulty they would have in arranging a response from impugned trial counsel in time for the 15 May 2013 fixture. French J adjourned the hearing and set a timetable for all evidence to be filed.
The timetable was not complied with. A draft affidavit from trial counsel was prepared and provided to Mr Nisbet. Both Mr Nisbet and the Crown considered that the contents of the affidavit raised issues about the viability of the appeal. There were ongoing discussions, and it appears there was doubt that the appeal would proceed. However, on 6 December 2013 the Crown advised that it understood Ms Koya would proceed, and indicated it would therefore file trial counsel’s affidavit. Ultimately a fixture for 9 June 2014 was allocated.
On 12 May 2014 Ms Koya wrote to the Court saying that Mr Nisbet was no longer her lawyer, and seeking file access. The fixture was adjourned. On 22 May 2014, French J directed:
The matter will now be heard on 20 August 2014. It must proceed on that date without fail.
Present hearing
Ms Koya has not obtained counsel. On 29 July 2014 written submissions in support of Ms Koya’s appeal were filed by a support person (who we were informed is an overseas qualified lawyer). The Crown filed its submissions on 14 August 2014. The Court therefore has available to it Ms Koya’s affidavit, trial counsel’s affidavit and written submission from both sides.
It emerges that Ms Koya shortly before this hearing discussed her appeal with Mr Noel Sainsbury, a Wellington barrister. Mr Sainsbury wrote on 14 August 2014 advising the Court of this and that he had said he would look at the matter if he were instructed, either privately or by way of a legal aid assignment, neither of which occurred.
Mr Sainsbury wrote again on 19 August 2014, appending a medical certificate which Ms Koya had provided him. He advised he had told Ms Koya she needed to attend at the hearing of 20 August 2014. The medical certificate details a 10 year history of depression which seems to have been at its worst in 2013, but notes that steady progress has since been made.
Ms Koya attended at the hearing and sought an adjournment. She had no papers with her, and plainly was not in a position to advance the appeal.
Adjournment
The adjournment application was declined. We now set out our reasons.
The application for an extension of time relates to a 2007 conviction in relation to offending occurring in 2003. That of itself indicates a need for matters to be advanced with some commitment. Yet the opposite has occurred. The primary source of delay is Ms Koya’s lack of urgency. We recognise and have regard to the medical evidence, but that does not explain the 2014 events.
No good reason has been provided for the delays this year. Nor is any reason proffered for dispensing with counsel. Ms Koya initially filed an affidavit making serious allegations against Mr Nisbet. He replied by way of a memorandum firmly refuting all that Ms Koya said. Subsequently Ms Koya applied to withdraw her affidavit, saying she did not understand the meaning of some of the things she had said, and accepting the affidavit contained mistaken facts. It is for this reason we observe that no good reason for dispensing with counsel has been proffered.
Nor has any evidence been provided as to the steps that have been taken since the previous fixture was vacated at which time firm directions were made by French J. In these circumstances, given both the fact that the matter concerns a 2007 conviction, and the absence of any explanation for the ongoing delays in 2014, we declined to adjourn what is the third fixture for this matter.
The Court was in a position to hear the appeal and had read all the material. Given Ms Koya’s unpreparedness we considered the fairest course was to determine the application for an extension of time separately and on the basis of the available material.
The application to extend time in which to file appeal
We first note that the delay is of more than four years and that no explanation has been provided for it. In her various filings and affidavits, Ms Koya has not sought to provide any explanation for the delay.
As to the apparent merits of the appeal, Ms Koya would be seeking to successfully appeal a conviction following a guilty plea. It is well-established that the scope for such appeals is narrow.[4] Ms Koya would need to show she did not appreciate the nature of her plea, or did not intend to plead guilty. No evidential basis for this is provided in her affidavits. We note that Ms Koya was represented at the time, the plea was entered after discussions, and Ms Koya obtained the benefit of the other charge being dropped.
[4]R v Le Page [2005] 2 NZLR 845 (CA) at [17]–[19].
Ms Koya makes claims about her trial counsel that are shown to be incorrect by objective material. She says she did not see him enough prior to trial and that he did not understand her case. However, Mr Vincent has appended to his affidavit time records that demonstrate extensive contact. Further, he has appended a brief of evidence for Ms Koya that was prepared in advance of trial. Ms Koya has made no attempt to explain in what way the brief is incorrect or misunderstands the case. We also observe that Mr Vincent argued the extensive s 347 application, something which also demonstrates good familiarity with the trial issues and Ms Koya’s defence.
It is plain from this material that Ms Koya’s intended appeal is untenable. Given the excessive and unexplained delay in filing a notice of appeal, we see no basis to extend the period of time within which to appeal. For completeness we note no tenable basis was advanced to extend time for a sentence appeal given the sentence has been served.
Solicitors:
Crown Law Office, Wellington for Respondent
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