Spiers v Police

[2019] NZHC 641

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-000002

[2019] NZHC 641

BETWEEN

LUKE BENEDICT SPEIRS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	26 March 2019
Counsel:	JE Tarrant for Appellant BT Vaili for Respondent
Judgment:	1 April 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 1 April 2019 at 11 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Hamilton. JE Tarrant, Hamilton.

SPEIRS v POLICE [2019] NZHC 641 [1 April 2019]

This case

[1]                 Mr Luke Speirs chose not to appear at the hearing of his conviction appeal, having (twice) been directed he must. I dismissed the appeal for want of prosecution. I said I would give my reasons later. Hence this judgment.

Principle

[2]                 The Criminal Procedure Act 2011 contains no explicit power for a criminal appeal Court to dismiss an appeal when the appellant does not appear. That Act does, however, provide for dismissal of an appeal when the appellant has not complied with procedural orders and been warned of the risk of dismissal for continued non- compliance.1 So, may a criminal appeal Court dismiss an appeal when the appellant chooses not to appear?

[3]                 The short answer is yes, through exercise of inherent power. But, only when appropriate.

[4]                 In Haslam v Police, Mr Haslam failed to appear at his sentence appeal.2 He knew of the hearing. Mr Haslam had not filed submissions, despite a reminder. There had been several adjournments. Wylie J dismissed the appeal for “want of prosecution”.3 Venning J noted the availability of the power in Sarandovs v Police4 and Cole v Police,5 but declined to exercise it on either occasion. In Chand v Police Lang J did, observing Mr Chand had not filed submissions or appeared.6 Other examples are identified by Mr Shane Campbell in “Procedural non-compliance and want of prosecution in criminal appeals”,7 including Mangu v R.8 The decision is important.

1      Criminal Procedure Act 2011, s 338. The provision was incorporated to address the decision of the Supreme Court in Petryszick v R [2010] NZSC 105, [2011] 1 NZLR 153. Petryszick was not about an appellant who failed to appear, but one who failed to comply with timetable orders of the appeal Court. Petryszick’s discussion of the requirement for adjudication on the merits needs to be understood in this context.

2      Haslam v Police [2015] NZHC 249.

3 At [9].

4      Sarandovs v Police [2014] NZHC 927.

5      Cole v Police [2013] NZHC 68.

6      Chand v Police [2014] NZHC 2853.

7      Shane Campbell Procedural non-compliance and want of prosecution in criminal appeals [2015] NZLJ 349.

8      Mangu v R [2015] NZCA 151.

[5]                 Mr Mangu was convicted of drink-drive offences. He appealed conviction and sentence to the High Court, but twice failed to appear to argue his appeal. Lang J dismissed the appeal for want of prosecution. Mr Mangu sought permission to appeal to the Court  of Appeal.  Mr  Mangu  argued  the  High  Court  failed  to  give  him 10 working days’ notice of its intention to dismiss the appeal—a procedural requirement of the provision mentioned at [2]—so his appeal had been wrongly dismissed.

[6]                 The Court rejected this argument as “misconceived”.9 It noted Lang J had not relied on the statute; rather, inherent power. Lang J’s dismissal of the appeal was “the entirely conventional outcome following … non-appearance of the appellant or counsel on his behalf to advance the appeal at the hearing”.10 Consequently, the Court did not permit Mr Mangu to bring his proposed appeal.

[7]                 Mr Campbell argues the existence of a statutory power to dismiss an appeal for procedural non-compliance means “the threshold for dismissal ought … be increased” in relation to “the want of prosecution jurisdiction”. It is unnecessary to address this contention. It is sufficient to observe inherent power must be exercised with care, especially given the importance of a defendant’s appeal rights and related criminal jeopardy.11

The chronology

[8]                 Mr Speirs was found guilty of male assaults female on 22 November 2017. He received a non-custodial sentence.

[9]                 Mr Speirs filed this appeal on 4 January 2018. 14 March 2018 was fixed to hear it. Toogood  J  granted an adjournment as the appeal was not ready to proceed.  7 May 2018 was fixed. Van Bohemen J granted an adjournment as Mr Speirs’ counsel had “only recently been appointed to represent Mr Speirs”.12 29 June 2018  was fixed. Whata J granted a further adjournment as anticipated scientific examination

9      Mangu v R, above n 8, at [7].

10 At [6].

11     A defendant’s right of appeal is affirmed by s 25(h) of the New Zealand Bill of Rights Act 1990.

12     Speirs v Police HC Hamilton CRI-2018-419-000002, 3 May 2018 at [2] (Minute).

remained incomplete. 7 September 2018 was fixed. Katz J granted another adjournment to facilitate Mr Speirs’ change of representation. 17 December 1918 was fixed. Brewer J granted yet another adjournment as Mr Speirs did not come to court. To be clear, he had not then been directed to. 28 February 2019 was fixed.

[10]              On 31 January 2019, the Crown filed and served a cross-examination notice in relation to Mr Speirs. By then, trial counsel competence was central. Mr Speirs had sworn an affidavit criticising trial counsel—and waived legal professional privilege. Trial  counsel  responded  with  an  affidavit  contesting  Mr  Speirs’  allegations.   On 8 February 2019, the High Court issued a notice directing Mr Speirs to attend the hearing on 28 February. So too his sister, who had sworn an affidavit in support of the appeal.

[11]              At 1.15 pm on 28 February, Jagose J adjourned the appeal. Jagose J was told Mr Speirs’ flight from Nelson had been “delayed, with no expectation he will be available by 2.15 pm”. The Judge recorded he had “no choice but to adjourn the appeal to a date to be set by the Registry”. 26 March was fixed, before me.

[12]              On 15 March 2019, the Registrar sent an email to the parties’ lawyers, reminding them of the hearing. Mr Philip Hamlin had been acting for Mr Speirs, on legal aid, since August the preceding year. Mr Hamlin replied that afternoon, saying he was having “... difficulty in obtaining instructions and shortly will let you know if I will be still acting on the appeal date”.

[13]              On 21 March, I heard a telephone conference. Mr Hamlin sought permission to withdraw.    Mr Hamlin said he had  not been able to  obtain instructions from    Mr Speirs since December 2018, even though he and Mr Speirs remained in contact. Mr Hamlin said Mr Speirs had not responded to his requests for information relevant to the appeal. Mr Hamlin said he wrote to Mr Speirs on 11 March, explaining he would seek leave to withdraw on 20 March if Mr Speirs did not engage with him by then. Mr Hamlin said he conveyed the same advice orally to Mr Speirs on 15 March. Mr Hamlin said Mr Speirs had not engaged. Finally, Mr Hamlin said Mr Speirs’ sister had twice travelled from Christchurch for the appeal, and she had told him she would not do so a third time.

[14]              I asked Mr Hamlin about Mr Speirs’ attendance at hearings. Mr Hamlin said he arranged for Mr Speirs to attend court on 17 December, but Mr Speirs did not. In relation to 28 February, Mr Hamlin said Mr Speirs “missed” his flight from Nelson; not his plane had been delayed.

[15]              I granted Mr Hamlin permission to withdraw on the basis his relationship with Mr Speirs had broken down. I issued a Minute that day capturing developments, adding:13

I direct:

(a)The appeal will proceed on Tuesday (26 March 2019).

(b)Mr Speirs must attend the hearing.

(c)A copy of this Minute is to be sent by the Registrar to Mr Speirs.

The hearing on 26 March

[16]              Mr Speirs did not attend.  Neither did his sister.  Trial  counsel did.  So too  Ms Jessica Tarrant, who said the Legal Services Agency had recently instructed her to act for Mr Speirs.

[17]              Ms Tarrant said she not heard from Mr Speirs “at all”, but Mr Hamlin had called her at approximately 9.50 that morning.   Mr Hamlin told her he had given   Mr Speirs her contact details. Mr Hamlin also told her Mr Speirs “would not be coming to court” as Mr Speirs was “in the bush in Otaki”.

[18]              The Crown asked me to dismiss the appeal for want of prosecution. Ms Tarrant said she “could not resist the application”. I granted it.

Reasoning

[19]I concluded Mr Speirs:

(a)Knew of the hearing date, and his obligation to attend.14

13     Minute of 21 March 2019 at [6] (emphasis in original).

14     At the conference, Mr Hamlin said he too would send Mr Speirs a copy of my Minute, by email.

(b)Had chosen not to.

(c)Had also chosen not to contact Ms Tarrant, whose details he had from Mr Hamlin.

[20]I also concluded:

(a)Mr Speirs’ attendance was necessary because of the conflict between his testimony and that of trial counsel, and the centrality of counsel competence to the appeal.15

(b)Given all this—including the unhappy chronology—the interests of justice required the appeal’s dismissal for want of prosecution.

……………………………..

Downs J

15     Mr Speirs’ sister’s evidence was not as important. But, her absence was not helpful.