Paul v The the King

[2022] NZCA 435

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA273/2021
 [2022] NZCA 435

BETWEEN	CHRISTOPHER MICHAEL PAUL Appellant
AND	THE KING Respondent

Court:	French, Brown and Gilbert JJ
Counsel:	Appellant in Person T G Bain for Respondent M G Robinson Standby Counsel
Judgment: (On the papers)	13 September 2022 at 9.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

1. Following a trial by jury in the District Court at Wellington in February 2021, Mr Paul was found guilty of assaulting his 13-year-old son.  On 15 April 2021, Judge B Davidson, who had presided at the trial, convicted Mr Paul and ordered him to come up for sentence if called upon within 12 months.[1]

   [1]R v Paul [2021] NZDC 7450.

2. On 13 May 2021, Mr Paul filed a notice of appeal against conviction and sentence.  The grounds of appeal were not specified but Mr Paul stated there would be “[l]ots”.  He indicated he would apply for leave to call witnesses on appeal but was “[n]ot sure”.  He named two witnesses but indicated there could be “many more”.  As to the evidence he thought these witnesses could give, he stated “[h]eaps”.

3. Clifford J convened a telephone conference on 21 July 2021.  The Judge directed Mr Paul to file a memorandum within six weeks setting out the matters he wanted the Court to consider on appeal.  The Judge also appointed Mr Robinson to assist as standby counsel.  A further conference in late August or early September was to be convened to monitor progress with the appeal.

4. Mr Robinson filed a detailed memorandum dated 7 September 2021 setting out the matters he understood Mr Paul wished to advance on appeal.  However, counsel noted that Mr Paul had not yet fully engaged in the process of compiling his list of issues.  That remains the position. 

5. Mr Robinson filed a further memorandum dated 3 February 2022 advising that although Mr Paul had agreed to review the memorandum and confirm which points he wished to pursue, he had not done so.  Clifford J issued a minute on 25 May 2022 advising Mr Paul that his appeal would be considered abandoned unless he advised Mr Robinson on or before 10 June 2022 “that he wants to pursue his appeal and, if so, on what basis”.

6. Mr Robinson has filed further memoranda dated 1 July 2022 and 8 July 2022 setting out Mr Paul’s continuing lack of engagement in the appeal process despite Mr Robinson’s efforts to obtain his instructions.

7. Section 338(1) of the Criminal Procedure Act 2011 empowers the Court to dismiss an appeal if the appellant fails to comply with a timetable or other procedural orders fixed for the appeal.  Before doing so, the Court must give the appellant 10 working days’ notice of its intention to dismiss the appeal.[2]  In a minute dated 2 August 2021, Gilbert J summarised this background and gave notice to Mr Paul that unless he filed a memorandum setting out the grounds for his appeal by 2 September 2022, the Court intended to dismiss his appeal.[3]   

   [2]Criminal Procedure Act 2011, s 338(2).

   [3]Gilbert J extended the statutory 10-working day period on the basis, at the time, it was understood that Mr Paul was not living in New Zealand.

8. No grounds of appeal have been filed.

9. The appeal is accordingly dismissed.  

Solicitors:
Crown Solicitor, Wellington for Respondent