Moore v Police

[2015] NZHC 355

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2015-488-3 [2015] NZHC 355

BETWEEN

DEAN MOORE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	4 March 2015
Counsel:	J A G Moroney for Appellant M B Smith for Respondent
Judgment:	4 March 2015

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Thode Utting & Co, Northcote, Auckland

Crown Solicitor, Whangarei

MOORE v NEW ZEALAND POLICE [2015] NZHC 355 [4 March 2015]

District Court at Whangarei on 4 November 2014, on charges of resisting a constable in the execution of his duty and assaulting two constables in similar circumstances. Convictions were entered following findings of guilt made by  the Judge at  the conclusion of a defended hearing.

[2]      The appeal was filed out of time.  The specified time for an appeal against conviction is 20 working days after the date of sentence for the conviction against which the appeal is brought.1   Mr Moore was sentenced on 4 November 2014.  The notice of appeal that Mr Moore filed was dated 24 December 2014.

[3]      In his notice of general appeal, Mr Moore specified as his grounds of appeal a challenge to the Judge’s finding that the police officers were acting lawful in the execution of their duty.   He said that there was “evidence now available that calls into question the Police version of events” and that “there is medical evidence now available that corroborates an allegation of excessive force by the officers”.

[4]      The jurisdiction to file further evidence on appeal is found in r 8.8 of the Criminal Procedure Rules 2012.  The particulars of further evidence must be set out in the notice of appeal or in a memorandum to be filed and served not later than 30 working days after filing the notice of appeal, setting out the further evidence and explaining why it was not available at trial and could not with reasonable diligence have been called.   There has been no compliance with those requirements notwithstanding the fact that the notice of appeal was filed on 24 December 2014.

[5]      In support of an application to extend the time for appeal under s 231(3) of the Criminal Procedure Act 2011 (the Act), Mr Moore said that he raised the issue of a possible appeal with new counsel assigned on other matters on 4 December 2014. He could only give instructions on 22 December 2014 due to counsel’s other Court commitments.  Counsel named as acting on the appeal was Ms Wilkinson-Smith.

[6]      The appeal came before me for a case management conference by telephone

on 12 February 2015 following Mr Moroney’s subsequent assignment to act for Mr

1      Criminal Procedure Act 2011, s 231(2).

to review evidence.  He did not appear for Mr Moore in the District Court.  The date that had been allocated for the appeal was 2 March 2015.

[7]      Because of further steps that Mr Moroney needed to take and the absence (at that time) of the transcribed notes of evidence taken before Judge Collins, I vacated that hearing and excused appearances.  I directed that the appeal be listed before me today for confirmation that the appeal was ready to proceed and to make any further timetabling orders.  In the meantime, 1 April 2015 has been allocated as the date for the hearing of the appeal.

[8]      Mr Moroney has appeared today on behalf of Mr Moore.   He has cited difficulties in obtaining information from Mr Moore’s prior counsel, who advised him that she did not have instructions from Mr Moore to release it.  He has discussed the appeal with Mr Moore but has not been able to obtain an affidavit from him in support  of the application  to  extend time,  nor for permission  to  adduce further evidence on appeal.

[9]      In  terms of directions that  I made on 12  February 2015, such affidavits together with a formal application to extend time were to be filed and served on or before 3 March 2015.  On what I have been told, I am satisfied that the fault for non- compliance rests with Mr Moore.

[10]     Section 338 of the Act deals with dismissal of an appeal for non-compliance with procedural orders.   However, in my view, that does not apply in the present case.  This is not an application for leave to appeal.  No valid appeal has yet been filed because of the need to extend time.  In my view, it is open to me to dismiss the appeal at this stage on the basis that Mr Moore has not taken any steps to prosecute it diligently.

P R Heath J