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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Spiers v Police

Details

AGLC: Spiers v Police [2019] NZHC 641
Case: [2019] NZHC 641
Decision Date: 1 April 2019

CaseChat Overview and Summary

In the case of Spiers v Police, the appellant, Luke Benedict Speirs, was appealing a conviction for male assaults female, with a non-custodial sentence. The appeal was dismissed for want of prosecution after Speirs chose not to appear at the hearing, despite being directed to do so twice. The court had to determine whether it had the inherent power to dismiss an appeal for want of prosecution when the appellant chooses not to appear, and whether such dismissal was appropriate in this case. The court found that while the Criminal Procedure Act 2011 does not explicitly provide for dismissal of an appeal for non-appearance, the court does have inherent power to do so, provided it is exercised appropriately.

The court considered the importance of a defendant's right to appeal and related criminal jeopardy. The court also noted the precedent of other cases where appeals were dismissed for want of prosecution due to the appellant's non-appearance. In this case, the court found that Speirs knew of the hearing date and his obligation to attend, but chose not to. His attendance was necessary due to the conflict between his testimony and that of trial counsel, and the centrality of counsel competence to the appeal. The court concluded that the interests of justice required the appeal's dismissal for want of prosecution, considering the unhappy chronology and the lack of engagement with the appellant's counsel.

The court granted the Crown's request to dismiss the appeal for want of prosecution. The appellant's counsel had sought to withdraw due to the breakdown in the relationship with the appellant and the appellant's non-engagement in the appeal process. The court found that the dismissal was appropriate under the circumstances, and the appeal was dismissed.

Orders