Mitai v The Queen

[2014] NZCA 603

IN THE COURT OF APPEAL OF NEW ZEALAND

CA613/2014
[2014] NZCA 603

BETWEEN	HATA MITAI Appellant
AND	THE QUEEN Respondent

Court:

Randerson, Harrison and Stevens JJ

Counsel:

M Dixon for Appellant
B F Fenton for Respondent

Judgment:

(On the papers)

9 December 2014 at 3:00 pm

JUDGMENT OF THE COURT

With the consent of the respondent:

A        Leave to appeal is granted. 

BThe appeal is allowed.

CThe matter is remitted to the High Court for consideration of the appellant’s appeal to that Court on the merits.

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REASONS OF THE COURT

(Given by Randerson J)

1. After this application for leave to appeal was filed, I issued a minute on 1 December 2014 inviting the respondent to consent to the application for leave to appeal and to allowing the appeal.

2. I did so on the basis that, in dismissing the appellant’s appeal from the District Court as abandoned, the High Court must have been relying on s 338 of the Criminal Procedure Act 2011.  The Crown accepts that the mandatory notice under s 338(2) was not given.  This requires the Court to give the appellant ten working days’ notice of its intention to dismiss the appeal under that section.  While the Criminal Procedure Act provides a formal process for an appellant to abandon an appeal under s 337, it does not provide for a Judge to treat an appeal as abandoned.

3. In response to the minute of the Court, the Crown has now advised that it consents to the proposal contained therein.

4. Accordingly, with the consent of the respondent:

   (a)        Leave to appeal is granted. 

   (b)       The appeal is allowed.

   (c)        The matter is remitted to the High Court for consideration of the appellant’s appeal to that Court on the merits.

5. It will be a matter for the High Court to determine whether further evidence may be allowed on the appeal and otherwise to give any directions that may be necessary to progress the appeal.

Solicitors:
Public Defence Service, Napier for Appellant
Crown Law Office, Wellington for Respondent