Mitchell v Police
[2019] NZCA 497
•16 October 2019 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA210/2019 [2019] NZCA 497 |
| BETWEEN | NEVILLE MORGAN MITCHELL |
| AND | NEW ZEALAND POLICE |
| Hearing: | 29 July 2019 |
Court: | French, Mallon and Moore JJ |
Counsel: | T Aickin for Appellant |
Judgment: | 16 October 2019 at 2.30 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time for filing the leave application is granted.
BThe application for leave to appeal is granted.
CThe appeal is allowed. The decision of the High Court is quashed for want of jurisdiction.
DThe matter is remitted back to the High Court for reconsideration.
EThe High Court is directed to reconsider whether the appellant’s appeal in that Court should be dismissed for non-compliance with procedural orders under s 338 of the Criminal Procedure Act 2011, in light of the matters set out in this judgment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Moore J)
Introduction
The appellant, Neville Morgan Mitchell, was convicted of assault following a judge-alone trial in May 2018.
He appealed his conviction and sentence but failed to meet various timetabling directions requiring him to file his grounds of appeal.
In the High Court, his appeals were dismissed for procedural non-compliance under s 338 of the Criminal Procedure Act 2011 (CPA).[1]
[1]Mitchell v Police [2019] NZHC 178 at [47].
Mr Mitchell seeks leave to appeal that decision.[2] This is opposed by the Crown.
[2]Criminal Procedure Act 2011, s 339(1)
Because Mr Mitchell’s application for leave was filed out of time he requires an extension of time for filing.[3] Given the circumstances we grant the extension.
The conviction
[3]Section 339(5).
It is alleged that on 8 June 2017 Mr Mitchell went to a physiotherapy clinic in Wānaka to make a complaint against one of the staff. The owner of the practice invited him into the tearoom to talk. Things apparently became heated. A physiotherapist, Mr Jenkins, attempted to escort Mr Mitchell out of the building. Mr Mitchell allegedly pushed Mr Jenkins three times. On the last occasion it is said the push was sufficiently hard to cause Mr Jenkins to lose his balance. The police were called.
Mr Mitchell was interviewed by the police and the interview was recorded on DVD. He admitted pushing Mr Jenkins but said Mr Jenkins had been using stand over tactics like a bouncer. Mr Mitchell was charged with common assault.[4]
[4]Summary Offences Act 1981, s 9; the maximum penalty is six months’ imprisonment or a fine not exceeding $4,000.
At the judge-alone trial before Judge Garland in the Queenstown District Court, staff from the physiotherapist’s clinic gave evidence.[5] Mr Mitchell elected not to give or call evidence.[6] However, the DVD of his interview with the police was played.[7]
[5]Police v Mitchell [2018] NZDC 14582 at [4] and [12].
[6]At [28].
[7]At [22].
On 9 May 2018 the Judge convicted Mr Mitchell,[8] and sentenced him to 40 hours’ community work and nine months’ supervision.[9]
Procedural background
[8]At [43].
[9]Police v Mitchell [2018] NZDC 14581.
We set out below the procedural background in some detail because it provides important context.
On 5 June 2018 Mr Mitchell filed an appeal against both his conviction and sentence in the High Court at Invercargill, alleging errors of fact and law. The notice of appeal was filed by Ms S Vidal. Ms Vidal had not represented Mr Mitchell in the District Court.
On 26 September 2018 the High Court advised Mr Mitchell, care of Ms Vidal, that the appeal would be heard in the High Court at Invercargill on 23 October 2018.
Four days before the scheduled hearing, on 19 October 2018, Ms Vidal filed a memorandum. She advised she had received a provisional grant of legal aid to assess whether there was a proper basis to advance Mr Mitchell’s appeal. She said she had reviewed the conviction and sentence decisions and was unable to discern a proper basis on which to advance the appeal. She reported that Mr Mitchell had raised separate issues regarding the competence of trial counsel as well as a procedural matter which was not apparent on the decisions of the Court. She said she had explained to Mr Mitchell the need to obtain a waiver of legal professional privilege and the requirement to file evidence. She sought leave to withdraw and asked for an adjournment of the appeal to enable Mr Mitchell to file the necessary documents as he would be representing himself.
On 23 October 2018 Dunningham J issued a minute. She directed Mr Mitchell to file points on appeal and a waiver of privilege (if required) by 2 November 2018. She set the appeal down for hearing on 11 December 2018. Ms Vidal was granted leave to withdraw.
On 31 October 2018, two days before the deadline, Mr Mitchell wrote to the Court seeking an extension of time to file the documents. He explained health issues which affected his ability to comply within the stipulated time.
On 5 November 2018 Dunningham J issued a further minute granting Mr Mitchell’s application for an extension of time to 30 November 2018. She also directed:
As this appeal has been on foot for some time, and both statutory and Court-ordered timetabling directions have not been complied with by the appellant, I direct that if the direction [to file points on appeal] is not complied by 30 November 2018 the appeal is hereby dismissed pursuant to s 338 of the Criminal Procedure Act 2011.
The High Court’s record confirms that a copy of the minute was sent to Mr Mitchell at the address he had been using in his correspondence with the Court.
On 8 November 2018, the Court sent Mr Mitchell notice of the new date of hearing, being 4 February 2019.
Then, on 27 November 2018, the Court sent Mr Mitchell a letter referring to Dunningham J’s first minute of 23 October 2018. This letter also recorded that if the Court’s timetabling directions were not complied with by 30 November 2018 the appeal would be dismissed.
Mr Mitchell did not file his points on appeal by 30 November 2018. As noted below he did not do so for another two months. However, it appears that in the meantime there were discussions between him and Registry staff which included advice that Mr Mitchell needed to file his submissions. For example, on 17 December 2018, he emailed Registry staff and asked the Court to send him a number of documents. It appears court staff did not raise with him his failure to file his points on appeal by 30 November 2018 or the consequence of any failure to do so.
On 8 January 2019, the Registry sent Mr Mitchell copies of documents which were considered relevant to his appeal. These included the notes of evidence, particulars of witnesses, a transcript of his police evidential interview, a copy of Judge Garland’s conviction decision and a copy of the sentencing notes. Plainly, as far as the Registry and Mr Mitchell were concerned, the appeal was still live.
On 25 January 2019, Mr Mitchell filed a 17 paragraph document setting out the matters he wished to advance on his appeal. Although the document described itself as “points on appeal” it appears to have been deficient in a number of material respects. Furthermore, no submissions were filed.
Curiously, despite Dunningham J’s directions and Mr Mitchell’s non‑compliance, the appeal was listed on 4 February 2019 before Nation J. Mr Mitchell appeared. When the case was called both Mr Mitchell and Crown counsel indicated that, given what was included in the points on appeal, neither was in a position to proceed. Nation J stood the matter down presumably for the parties to consider their positions and address him on what basis the appeal might proceed having regard to Dunningham J’s directions.
When Nation J returned to Court, Mr Mitchell listed the issues he wished to pursue on appeal. These can be summarised as:
(a)the police’s failure to disclose Mr Jenkins’ criminal record for violence;[10]
(b)the police DVD interview was edited without his consent;[11]
(c)trial counsel, Mr Mooney, did not ask Mr Mitchell if there were other witnesses who could have supported his account; and
(d)Mr Mooney failed to seek instructions in respect of a ruling made during a chambers hearing.
[10]Mr Jenkins’ criminal history reveals only one conviction for being in a bar while under age.
[11]It does not appear the DVD was edited and, in any event, that would be unusual in a judge‑alone trial.
These and other issues which appear to have been traversed at some length are recorded in Nation J’s detailed judgment of 15 February 2019.[12] The Judge recorded that Mr Mitchell’s appeal had been dismissed pursuant to s 338(4) as directed by Dunningham J.[13] Nation J also recorded Mr Mitchell’s right under s 339 to apply to this Court for leave to appeal against the dismissal adding that by virtue of the delay, Mr Mitchell would have to seek an extension of time to file the application.[14] Presumably, Nation J understood the date of dismissal to have been 30 November 2018 or shortly thereafter, as opposed to the date of his own decision.
[12]Mitchell v Police, above n 1..
[13]At [47].
[14]At [48].
On 15 May 2019 Mr Mitchell applied to this Court for leave to extend time and leave to appeal the dismissal of his appeal in the High Court.
Legal principles
The power to dismiss an appeal for non-compliance is contained in s 338 of the CPA. This provides:
338 Power of appeal court to dismiss appeal for non-compliance with procedural orders
(1) Despite anything in subparts 2 to 10, an appeal court may dismiss an appeal if the appellant fails to comply with a timetable or other procedural orders fixed for the appeal.
(2) Before dismissing an appeal under subsection (1), the appeal court must give the appellant 10 working days’ notice of its intention to dismiss the appeal.
(3) The appeal court must not dismiss an appeal under subsection (1) if the appellant, after having been given notice under subsection (2), rectifies the non-compliance within the notice period given by the court.
(4) A reference in any enactment other than this section to the abandonment of an appeal under this Act must, unless the context otherwise requires, be read as including a reference to a dismissal under subsection (1).
(5) In this section, appeal includes an application for leave to appeal.
Section 338 applies if three pre-requisites are met. These are:
(a)the appellant failed to comply with a procedural order or timetable;[15]
(b)the appeal Court gave the appellant 10 working days’ notice of its intention to dismiss the appeal;[16] and
(c)the appellant failed to rectify the non-compliance within that period.[17]
[15]Criminal Procedure Act, s 338(1).
[16]Section 338(2).
[17]Section 338(3).
The appeal court then has a discretion to dismiss the appeal for non‑compliance under s 338. The discretion is guided by the interests of justice, balancing the right of appeal affirmed by s 25(h) of the New Zealand Bill of Rights Act 1990 (NZBORA) with Parliament’s intention when enacting s 338. In other words, the right to appeal is not untrammelled. Finality, particularly for victims, is also important.
These principles were discussed by this Court in Rakuraku v R.[18] In considering the limits of the right affirmed by s 25(h) of NZBORA, this Court observed that the power to dismiss an appeal for non-compliance recognises that there are countervailing considerations relevant to the interests of justice including the Crown’s legitimate expectation that it should be provided with adequate particulars of the grounds of appeal to enable a proper response and the public interest in the finality of court proceedings. The orderly and efficient administration of the court is also a relevant consideration although an appeal would not normally be dismissed under s 338 unless there had been serious, repeated and continuing non‑compliance with the court’s directions.
[18]Rakuraku v R [2016] NZCA 351 at [26].
Section 339 of the CPA provides for the right to appeal a court’s decision to dismiss an appeal for non-compliance. Relevantly it provides:
“339 Appeal against dismissal under section 338
(1) An appellant may, with the leave of the relevant appeal court, appeal to that court against a dismissal of an appeal under section 338.
(2) The relevant appeal court is—
(a) the High Court, if the appeal is against the dismissal of an appeal under that section by the District Court; or
(b) the Court of Appeal, if the appeal is against the dismissal of an appeal under that section by the High Court; or
(c) the Supreme Court, if the appeal is against the dismissal of an appeal under that section by the Court of Appeal.
(3) An appellant commences an appeal under this section by filing a notice of application for leave to appeal in the relevant appeal court.
(4) A notice of application for leave to appeal must be filed within 20 working days after the date of the dismissal appealed against.
(5) The relevant appeal court may, at any time, extend the time allowed for filing a notice of application for leave to appeal.
(6) The relevant appeal court must determine an appeal under this section by either—
(a) dismissing the appeal; or
(b) allowing the appeal and remitting the matter to the court appealed from with any directions it considers appropriate.
(7) The determination of an appeal by the relevant appeal court under this section is final.”
Where an applicant seeks leave under s 339, we agree with Ms Ewing for the Crown that the following principles are engaged:
(a)It is for the applicant to establish that leave to appeal should be granted.[19]
(b)Leave to appeal under s 339 involves a challenge to a discretionary decision (except when the applicant can show that one of the three statutory pre-requisites was absent). Thus, leave to appeal requires the applicant to show that the Judge erred in principle, gave weight to extraneous or irrelevant matters, failed to give sufficient weight to relevant considerations, or was plainly wrong.[20]
(c)It is not enough for an applicant to simply establish that the dismissed appeal may have merit.[21] It is the decision to dismiss for non‑compliance, and not the conviction and/or sentence, which is challenged.
(d)Therefore, to obtain leave, the applicant must establish an arguable case that the discretion under s 338 was wrongly exercised.
Submissions
Appellant
[19]R v Leonard [2007] NZCA 452, [2008] 2 NZLR 218 at [12].
[20]At [14](e); and R v Reid [2007] NZSC 90, [2008] 1 NZLR 575 at [23].
[21]Indeed, s 338 was enacted to enable the Court to dismiss an appeal on this basis without any consideration of its merits: Rakuraku v R, above n 18, at [25].
Ms Aickin, who now acts for Mr Mitchell, submitted this Court should grant leave under s 339 having regard to the following factors:
(a)At all material times in the High Court, Mr Mitchell was unrepresented and in poor health. This was conveyed to the Court by Mr Mitchell when he sought an extension to the original timetabling directions.
(b)No inquiries appear to have been made by the Court as to whether it would be appropriate to appoint counsel to assist.
(c)Any non-compliance was not prolonged and is explicable having regard to Mr Mitchell’s personal circumstances and the late delivery of central Court documents which he did not receive until early January 2019.
(d)Mr Mitchell and the Court/Registry through their conduct appear to have believed the appeal remained on foot despite non-compliance following Dunningham J’s minute. Examples include discussions Mr Mitchell had with Registry staff about documentation, the Court sending Mr Mitchell parts of the District Court record in early January and the listing of the appeal for hearing on 4 February 2019.
(e)The Court was advised by Ms Vidal that she did not believe there was any proper basis to advance an appeal. This may have wrongly influenced the Court in its decision.
(f)Mr Mitchell does not appear to have been advised of his right to seek further representation through legal aid. Relatedly, on the question of effective access to justice, Mr Mitchell lives in Wānaka, Ms Vidal was based in Dunedin and the appeal was being brought in the High Court at Invercargill.
(g)It does not appear there were any telephone conferences convened or steps taken by the Court to bring home to Mr Mitchell what the consequences for his appeal might be in the event of non-compliance with timetabling orders.
(h)It would be contrary to the interests of justice if the background circumstances which explain the reasons for non-compliance were not taken into account.
(i)Mr Mitchell is now represented by counsel and the appeal is being presented efficiently and with minimum delay.
(j)Mr Mitchell has fully instructed counsel as to the matters he wishes to advance on appeal. Legal professional privilege has been waived. Mr Mitchell has sworn an affidavit setting out his principal grounds of appeal. This has been served on the Crown. Mr Mooney has been contacted and is in a position to make an affidavit.
For these same reasons, Ms Aickin also submitted this Court should allow the appeal and remit the matter back to the High Court.
Crown
Ms Ewing submitted that because Mr Mitchell does not dispute the statutory pre-requisites under s 338 of the CPA were met he must therefore establish an arguable case that Dunningham J erred in a qualifying way when dismissing his appeal.
She submitted he has not done so. Mr Mitchell’s affidavit evidence filed in support of his application under s 339 explains his non-compliance by reason of health problems, lack of legal representation and unfamiliarity with appeal procedures. Ms Ewing submitted that all of these matters would have been apparent when the appeal was dismissed. Moreover, Mr Mitchell elected to continue unrepresented when his lawyer decided not to advance his chosen grounds. All litigants, represented or otherwise, have a responsibility to comply with court-imposed timetabling orders.
Furthermore, Ms Ewing submitted that the material filed in this Court does not establish an error in Dunningham J’s decision. The appeal was dismissed for repeated non-compliance and, absent clear error in that decision, Mr Mitchell cannot simply point to the merits of the substantive appeal in order to obtain leave to appeal its dismissal
Finally, if this Court was prepared to consider the new material advanced in support, Mr Mitchell’s proposed appeal in the High Court is wholly lacking in merit.
Discussion
In this Court, the oral submissions evolved somewhat differently from counsel’s written submissions. The focus was on whether Dunningham J’s minute of 5 November 2018 on which Nation J relied had in fact been effective to bring proceedings to an end.
We do not think it was and therefore consider that a meritorious issue of jurisdiction arises warranting the granting of leave to appeal. Section 338(2) requires the appeal court to give the appellant 10 working days’ notice of its intention to dismiss the appeal. If there is non-compliance, at the expiration of that period, the court may exercise its discretion to dismiss the appeal. However, that was not what was done in this case. There was no separate judicial act following the expiry of the 10 working day period. Instead, Dunningham J’s direction was, in effect, prospective; she directed that if the points on appeal were not filed by 30 November 2018 the appeal would automatically be dismissed.
In our view s 338 requires a separate judicial consideration following the act or acts of non-compliance. In this case that should have occurred when the 10 working day period expired on 30 November 2018. Only at that time would the High Court have been in a position to make a proper assessment of all the circumstances which might justify dismissing the appeal for non-compliance. That did not occur. We consider this was an error which justifies remitting the matter back to the High Court, so it can reconsider whether to dismiss Mr Mitchell’s appeal for non‑compliance.
We discussed with counsel the correct process to be followed by a court (in this case the High Court) when making the final decision whether to dismiss an appeal for non‑compliance and in particular whether a further hearing for that purpose is required. In our view, given the scheme and purpose of the legislation as discussed in Rakuraku a further hearing is not necessarily required but that option would be avaliable to a court if considered appropriate in the circumstances.
As already mentioned, what is however required is a separate judicial determination. The Judge should consider the extent of the non-compliance and any other material relevant to the exercise of the Court’s discretion under s 338 including any reasons for non-compliance. The decision should then be recorded in the form of a brief judgment with reasons.
For completeness, we have also considered whether Nation J’s judgment amounted to a dismissal of the appeal in terms of s 338. We do not believe that it did. That decision found that Mr Mitchell’s appeal had been dismissed when the 10 working day period expired. It simply purported to confirm the dismissal.
We have concluded the High Court could not have dismissed Mr Mitchell’s appeal under s 338 without separate judicial consideration. The matter will now be remitted back to the High Court. It is not for us to determine whether, upon reconsideration under s 338, Mr Mitchell’s appeal should or should not be dismissed. We do, however, note the following points:
(a)Although Mr Mitchell did not file his points on appeal by 30 November 2018 he did engage in discussions with High Court Registry staff within a few weeks of that deadline. Plainly neither he nor Registry staff regarded his appeal as having been dismissed or abandoned and his failure to file his points by 30 November 2018 was not discussed with him. It is reasonable to assume from that, and his subsequent behaviour, that Mr Mitchell believed his appeal was still live.
(b)This belief would have been reinforced when the Registry, on 8 January 2019, sent Mr Mitchell copies of documents which were considered relevant to his appeal. Again, he was not advised his appeal had been dismissed.
(c)Just over a fortnight after receiving these papers he filed the document which purported to be his points on appeal.
(d)The High Court set the appeal down for hearing on 4 February 2019 — at which time both Mr Mitchell and counsel for the Crown appeared.
(e)Throughout, Mr Mitchell was unrepresented and did not appear to understand that he could re-apply for legal aid following the withdrawal of Ms Vidal.
(f)The non-compliance was not prolonged having regard to Mr Mitchell’s particular circumstances.
(g)Now Mr Mitchell is represented by counsel the appeal is capable of being pursued in a timely and orderly fashion.
Result
The application for an extension of time for filing the leave application is granted.
The application for leave to appeal is granted.
The appeal is allowed. The decision of the High Court is quashed for want of jurisdiction.
The matter is remitted back to the High Court for reconsideration.
The High Court is directed to reconsider whether the appellant’s appeal in that Court should be dismissed for non-compliance with procedural orders under s 338 of the CPA, in light of the matters set out in this judgment.
Solicitor:
Crown Law Office, Wellington for Respondent
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