Radich v Police

[2017] NZHC 3013

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2017-488-000027 [2017] NZHC 3013

BETWEEN

LESTER RADICH

Appellant

AND

NEW ZEALAND POLICE Respondent

On the papers
Appearances:	Appellant, self-represented MB Smith for the Respondent
Judgment:	6 December 2017

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 6 December 2017 at 3.00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Radich v New Zealand Police [2017] NZHC 3013 [6 December 2017]

[1]      On 8 June 2017, Lester Wayne Radich was convicted by Judge GL Davis in the District Court at Dargaville on one charge under ss 81A and 82 of the Harassment Act 1997 of verbal abuse, having already threatened the complainant some months earlier.   He was also convicted of a charge under s 21 of the Summary Offences Act 1981  of  threatening  to  injure  a  complainant  knowing  that  his  conduct  was reasonably likely to frighten that person.  On the same day, Judge Davis sentenced

Mr Radich to six months’ imprisonment on the charge under the Harassment Act and to a concurrent sentence of one month’s imprisonment on the charge under the Summary Offences Act.  The Judge imposed standard release conditions and special release conditions which included a non-association order and a direction to participate in counselling or treatment programmes as directed by the Community Probation Service.

[2]      Mr Radich filed notice of an appeal against his conviction on 4 July 2017.

[3]      When the matter was first before this Court at a callover, Moore J set down the appeal for hearing at 11.45 am on 14 September 2017 and made timetable directions. The Judge noted that Mr Radich failed to appear at the callover but was informed by the Crown Solicitor that Mr Radich had served his sentence and should have been released from custody.  Moore J noted that if there was no appearance by Mr Radich on 14 September 2017 the appeal may be treated as abandoned.

[4]      Mr Radich appeared before Muir J on 14 September 2017, but he had failed to file and serve his submissions as directed.  Mr Radich informed the Court that he had instructed counsel.   Muir J adjourned the matter to the callover list at 9.00 am on

21 September 2017. In the Minute which he issued that day, the Judge put Mr Radich on notice that strict adherence to any future requirements which the Court imposes will be necessary or his appeal would be struck out.

[5]      Mr Radich failed to appear at the callover at 9.00 am on 21 September 2017 as directed by Muir J.   He was granted a further indulgence in that the matter was adjourned to the callover a week later on 28 September 2017. Mr Radich was warned that unless he appeared on that date, the appeal would be struck out for want of prosecution.

[6]      On 28 September 2017, Mr Radich appeared at the callover and informed the Court that he had instructed Mr Shepherd as counsel. Timetable directions were made for the filing of detailed points on appeal; any application for leave to adduce fresh evidence; any affidavits in support and submissions in support of the application. Other timetable orders were made and the appeal was set down for a two-hour hearing on 13 February 2018 at 11.00 am. The matter was also listed for callover on Thursday

7 December 2017.

[7]      An order was also made, however, that the matter should be called at 9.00 am on Thursday, 9 November 2017 to address the consequences of any fresh evidence application of a kind which Mr Radich had signalled.

[8]      Mr Radich failed to appear when the matter was called before Moore J on

9 November 2017.   The Judge issued a Minute tracing the history of failure by

Mr Radich to comply with Court orders and the indulgences which he had been granted.  In his Minute issued that day, Moore J said:

[8]       Section 338 of the Criminal Procedure Act 2011 provides the Court with the power to dismiss an appeal for non-compliance with the procedural orders.   However, s 338(2) requires the appeal Court to give the appellant

10 working days’ notice of its intention to dismiss the appeal before it may exercise the powers under s 338(1).

[9]       I propose to invoke the powers under s 338 and I direct that Mr Radich is to comply with the outstanding orders of Toogood J within 10 working days of this Minute being posted or delivered to him.

[10]      In the event of non-compliance with this order I direct that the file be referred to the Whangarei List Judge following the expiration of the period by which time, if there remains any non-compliance, I would expect the Court to treat the appeal as abandoned and dismiss it in terms of s 338(1).

[11]      I direct a copy of this Minute be sent to Mr Radich at both the address referred to in his notice of appeal, namely 48 Hospital Road, Te Kopuru and the address which it appears he nominated during his appearance before Muir J, namely P O Box 152, Dargaville.  I also direct a copy of this Minute be sent to Mr Shepherd and I direct that he is to advise the Court whether or not he has been instructed on this appeal by Mr Radich.

[9]      It has been confirmed by the Registrar that copies of the Minutes were mailed to Mr Radich at the addresses set out in Moore J’s Minute of 9 November 2017. Nothing has been received from Mr Radich.

[10]     Consistently with his duty as an officer of the Court, Mr Shepherd has filed a courteous  memorandum  informing  the  Court  that  Mr Radich  had  approached

Mr Shepherd to assist him to complete a legal aid application so he could get counsel assigned to him in respect of the appeal.   Mr Shepherd said he had heard nothing further  and  was  not  aware  whether  Mr Radich  had  counsel  assigned  to  him.

Mr Shepherd asked the Court to note that Mr Radich might be in custody on fresh charges before the Dargaville District Court.  Mr Shepherd confirmed, however, that he was not instructed to appear for Mr Radich on the appeal.

[11]     The Registrar has conducted a search on the database of all courts and confirms that there is no active file for Mr Radich in any court.

[12]     Mr Radich having been notified under s 338(2) of the Court’s intention to dismiss the appeal for non-compliance with the Court’s orders, and Mr Radich having taken no further steps in the matter, I treat the appeal as abandoned and dismiss it under s 338(1) of the Criminal Procedure Act.

...........................................

Toogood J