T v The King
[2024] NZHC 2129
•31 July 2024
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR
IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2023-441-15 [2024] NZHC 2129
BETWEEN T
Appellant
AND
THE KING
Respondent
On the Papers Appearances:
Appellant in person
L Marshall for the Respondent
Judgment:
31 July 2024
JUDGMENT OF GWYN J
(Dismissal of appeal)
Introduction
[1] T seeks to appeal a decision of Judge Matenga in the Napier District Court convicting him of two counts of indecent assault on a girl aged 13.1 He has already served his sentence and has been released.2
1 Crimes Act 1961, s 134(3). The maximum penalty is seven years’ imprisonment.
2 As recorded in T v R HC Napier CRI-2023-441-015, 21 March 2024 (Minute of Grau J) at [5].
T v R [2024] NZHC 2129 [31 July 2024]
[2] T has failed to take the necessary steps to pursue the appeal as directed by minutes of the Court. The Court is now to deal with an application for dismissal of the appeal on the papers under s 338 of the Criminal Procedure Act 2011.3
The offending
[3] Between 10.00 pm on 12 November 2022 and 7.30 am on 13 November 2022, the complainant was sleeping alone in her grandmother’s bed. She awoke to find T sitting on the bed next to her and groping her buttocks over her clothing, touching her chest and squeezing her breast. While touching her, T was masturbating.
Procedural history
[4] On 19 June 2023 Judge Matenga in the Napier District Court convicted T on both charges following a Judge-alone trial.4 On 18 July 2023 the Judge sentenced T to 13 months’ imprisonment with standard and special post-release conditions.5 As a result T was registered under the Child Protection (Child Sex Offenders Government Agency Registration) Act 2016.
[5] On 31 July 2023 Mr Jefferson (T’s trial counsel) filed a notice of appeal against conviction under s 229 of the Criminal Procedure Act. The appeal states that the evidence given at the Judge alone trial by the complainant was unreliable and insufficient to find the charges proved and also challenges the trial Judge’s decision to decline the grant of a s 106 discharge without conviction. A hearing of the appeal was scheduled for 7 November 2023.
[6] On 5 September 2023 the Registry confirmed the timetabling for the hearing set down for 7 November 2023.
[7] On 19 October 2023 the Court received a memorandum from Mr Jefferson stating that T had raised issues about trial preparation and counsel conduct, thus
3 As directed in T v R HC Napier CRI-2023-441-15, 9 July 2024 (Minute of McQueen J).
4 R v T [2023] NZDC 11279.
5 R v T [2023] NZDC 14909.
requiring alternative counsel to conduct the appeal. Counsel accordingly sought leave to withdraw and vacate the appeal hearing.
[8] On 31 October 2023 Mr Jensen contacted the Registry to advise he had been appointed as T’s new counsel, did not know the details of the case, and accordingly requested an adjournment of the appeal hearing scheduled for 7 November 2023.
[9] Leave for Mr Jefferson to withdraw was not formally granted, but the hearing was rescheduled, after conferring with Mr Jensen. The Registry set down a hearing for the appeal of 12 December 2023.
[10] On 21 November 2023 Mr Jensen indicated6 that appeal grounds may include trial counsel competence and therefore he could not remain counsel on appeal given his relationship with trial counsel, as recorded in a minute of that date by La Hood J. Mr Jensen also advised that he had contacted the Legal Services Agency to have the case reassigned. The Judge adjourned the teleconference to 6 December 2023 to enable new counsel to be assigned.
[11] On 6 December 2023 La Hood J recorded in a minute that local counsel Ms Su’a had been assigned but she also had a conflict given the counsel competence ground of appeal and as such the file was in the process of reassignment to out-of- town counsel. The Judge adjourned the teleconference to 8 February 2024.
[12] On 7 February 2024 Mr Tuck, who had been assigned as counsel in December 2023, advised the Court by way of memorandum that he understood the appeal would be pursued in part on the basis of error by trial counsel, but T had not filed a waiver of legal privilege.
[13] On 8 February 2024 Grice J recorded that Mr Tuck had been assigned for the appellant through Legal Aid and Mr Wang (for Mr Tuck) appeared at the teleconference. The Judge noted that Mr Wang had been trying to seek a trial counsel waiver but he had received no response from T. The Judge directed a waiver to be
6 In a teleconference before La Hood J and by filing a memorandum.
filed by 21 February 2024 and made timetabling directions for the subsequent events, culminating in setting down a hearing on 21 March 2024.
[14] On 20 February 2024 Mr Wang said in a memorandum that T had not responded to any attempts to contact him and therefore counsel had been unable to obtain a signed waiver.
[15] On 21 February 2024 the Crown filed a memorandum inviting the Court to dismiss the appeal for T’s non-compliance with procedural orders including T’s failing to engage with the appeal processes and not providing appeal counsel with instructions.
[16] On 22 February 2024 a minute of Grice J recorded that Mr Wang had been unable to obtain instructions to provide a waiver by the deadline and the Crown sought dismissal of the appeal for T’s non-compliance with procedural orders. The Judge directed that T must file and serve any opposition and submissions in relation to the Crown’s application by 27 February 2024.
[17] On 4 April 2024 Mr Wang filed a memorandum attaching a waiver of legal privilege signed by T relating to discussion, instructions and legal advice with Mr Jefferson. Mr Wang requested that the appeal not be dismissed and for a Clode letter to be delivered to trial counsel the following month.
[18] On 13 March 2024 Grice J recorded in a minute that T would send full written instructions to Mr Wang and directed that the appeal proceed as scheduled on 21 March 2024 and that the application to dismiss the appeal would be heard at that time.
[19] On 21 March 2024 T failed to appear at the appeal hearing before Grau J. The Judge recorded Mr Wang had been unable to contact T and remained without instructions as to how to advance the appeal. The Judge directed that if T does not
take steps to advance his appeal by 8 April 2024 the Court intended to dismiss the appeal under s 338(2) of the Criminal Procedure Act.7
[20] On 18 April 2024 Grice J made timetabling directions for the appeal to proceed, including setting down a hearing for 9 July 2024.
[21]On 23 May 2024 the Crown filed Mr Jefferson’s affidavit.
[22] On 7 June 2024 Mr Wang sought an extension of time for filing T’s affidavit as directed in the minute of 18 April 2024 because he had difficulty obtaining instructions.
[23] On 10 June 2024 Grice J noted in a minute that T’s affidavit was due on 7 June 2024 and it had not been filed. Although reluctant to allow further delay, the Judge granted a short extension until 11 June 2024.
[24] On 11 June 2024 Mr Wang advised by memorandum to the Court that T was in custody in relation to new charges in which his colleague Mr Manera attended to him. An irretrievable breakdown of relations had occurred between Mr Manera and T and Mr Douglas was assigned to act for T on the new charges. Mr Wang said it would not be appropriate for him to continue acting in respect of the appeal and advised that Mr Douglas was content to act for T and Legal Services had been advised of the change, but the new assignment was awaiting confirmation.
[25] On 17 June 2024 Grice J recorded that the matter was delayed due to T’s inability to engage with counsel. The Judge confirmed that the timetable previously set down would remain in place and if the appellant did not file submissions, the Crown would consider its position.
[26] On 21 June 2024 the Crown filed a memorandum inviting the Court to dismiss the appeal given T’s failure to comply with all directions.
7 The Judge considered that the Court needed to give notice of the intention to dismiss the appeal before the application for dismissal could be considered. The substantive application was therefore not determined on 21 March 2024 as Grice J had previously directed.
[27] On 24 June 2024 Mr Forster filed a memorandum stating he had been reassigned T’s appeal file on 20 June 2024. He said he had spoken to T who explained that he has had difficulty maintaining contact with counsel due to being in and out of prison. Mr Forster said T expressed an intention to meet with him that week, but he did not obtain his address or make an appointment.
[28] On 24 June 2024 Grice J issued a minute recording that the Crown seeks an order dismissing the appeal for procedural non-compliance. The Judge confirmed that would be heard on 9 July 2024 and made directions for the filing of submissions.
[29] On 3 July 2024 Mr Forster confirmed by memorandum that he had emailed and texted Grice J’s minute of 24 June 2024 to T. In another memorandum of that date, Mr Forster said he met with T briefly on 1 July 2024 while T was reporting to his Probation Officer in Hastings. T needed to return to his Tauranga address quickly and this had precluded meaningful discussion. T expressed an intention to find a lawyer in Tauranga. Mr Forster said he had contacted T since and T gave him a name of a Tauranga lawyer, who Mr Forster contacted but was unable to take the case. Mr Forster provided T with the name and contact details of another Tauranga lawyer. Mr Forster said he had not received instructions to file submissions or advance the appeal and sought an adjournment to allow T to find alternative counsel. Alternatively,8 Mr Forster sought leave to withdraw.
[30] On 3 July 2024 the Crown filed another memorandum seeking dismissal of the appeal, noting it was still unclear what grounds of appeal T sought to rely on and he had not taken any opportunities afforded to him to progress the appeal including the extension of time and being put on notice of the Court’s intension to dismiss the appeal.
[31] On 3 July 2024 Grice J issued a minute recording that there has been procedural non-compliance and gave notice that if T did not take any steps to advance his appeal by 24 July 2024, the Court intended to dismiss the appeal.
8 Mr Forster’s memorandum at [9] says “Attentively” but I believe this is an error that should read “Alternatively”.
[32] On 9 July 2024 McQueen J recorded in a minute that Mr Forster had received no updated instructions from T despite his efforts to contact him, including sending him the minute of Grice J dated 3 July 2024. Justice McQueen granted Mr Forster leave to withdraw and recorded that the dismissal of the appeal would be set down on the papers on 25 July 2024.
[33] On 24 July 2024 Mr Douglas advised the Court in an email that he is not acting for T but he received a phone call from T earlier that day asking him to pass on to the Court that he wishes to continue to pursue the appeal and is currently attempting to engage new counsel for that purpose.
[34] As directed, on 25 July 2024 the application to dismiss the appeal came to me as Duty Judge to determine on the papers.
Positions of the parties
For the proposed appellant
[35] On 25 July 2025, Mr Galler, an Auckland barrister, advised the Court of Appeal (forwarded to the High Court by the Court of Appeal Registry) by way of email that he is not yet acting for T but he was contacted by him by way of a brief phone call from a private number on 17 July 2024. T asked him if he could assist with the appeal. Mr Galler asked T to email him with his contact details so that he could discuss the matter further, to which T said he would.
[36] After the phone call on 17 July 2024, Mr Forster emailed Mr Galler numerous documents regarding the case including the minute of Grice J dated 3 July 2024 which indicated the Court would consider dismissing the appeal on 25 July 2024 if no steps were taken to advance the appeal by 24 July 2024.
[37] Mr Galler replied to Mr Forster advising that he was not yet acting for T and asked for T’s phone number. Mr Forster did not reply.
[38] Mr Galler said that T emailed him on 25 July 2024 and provided his phone number. Mr Galler made contact with T on that day.
[39] Mr Galler asks for an extension so that he can be assigned to the appeal and act for T.
For the Crown
[40] Ms Marshall, for the Crown, submits that the appeal should be dismissed for procedural non-compliance and opposes any adjournment.
[41] The timetabling orders directed that the appellant file substantive submissions by 21 June 2024. That has not happened. T has not taken the opportunities afforded to him to advance the appeal including an extension of time and being put on notice of the Court’s intention to dismiss the appeal.
[42] The Crown notes that there is merit in the finality of this proceeding given the complainant is a young person who is part of the appellant’s wider family.
[43] In response to the 24 July 2024 communication from T, made via Mr Douglas, Crown counsel advises that the Crown does not consider T has taken any substantive steps to advance the appeal and seeks to have the matter dismissed on the papers.
[44] Further, the Crown considers that the information provided by Mr Galler on 25 July 2024 does not demonstrate T taking substantive steps to dismiss the appeal and maintains its position that the Court should dismiss the appeal. Ms Marshall noted in an email to the Court that Mr Galler has not confirmed he is willing and able to advance the appeal and Legal Aid has not confirmed it is prepared to assign new counsel to the appeal, if an application has been made.
[45] The Crown maintains its position that T has demonstrated a continuing pattern of lack of engagement and his efforts contacting Mr Galler are too little and too late. T has been represented by multiple counsel who have had difficulty obtaining instructions due to his lack of engagement and threatening behaviour towards them. T has had ample opportunity to advance his appeal, including adjournments, extensions and being put on notice of the Court’s intention to dismiss the appeal twice. The interests of justice, particularly those of the young complainant, favour finality.
Relevant law
[46]Section 338 of the Criminal Procedure Act provides:
338 Power of appeal court to dismiss appeal for non-compliance with procedural orders
(1)Despite anything in subparts 2 to 10, an appeal court may dismiss an appeal if the appellant fails to comply with a timetable or other procedural orders fixed for the appeal.
(2)Before dismissing an appeal under subsection (1), the appeal court must give the appellant 10 working days’ notice of its intention to dismiss the appeal.
(3)The appeal court must not dismiss an appeal under subsection (1) if the appellant, after having been given notice under subsection (2), rectifies the non-compliance within the notice period given by the court.
(4)A reference in any enactment other than this section to the abandonment of an appeal under this Act must, unless the context otherwise requires, be read as including a reference to a dismissal under subsection (1).
(5)In this section, appeal includes an application for leave to appeal.
[47] Section 338 empowers the Court to treat the appeal as abandoned if the appellant, after being put on notice, fails to comply with timetabling or procedural requirements.9 The necessary preconditions to dismissal are set out in subss (1)–(3).
[48] Although one instance of non-compliance with the procedural orders can be a sufficient basis for dismissal, the courts are reluctant to dismiss appeals unless the non- compliance has been “serious, repeated and continuing”.10 It is ultimately a discretionary decision, guided by the interests of justice.11
[49] Generally, in providing reasons for dismissal, the court will provide a provisional or high-level assessment of the merits of the proposed appeal.12 However
9 See Matthew Downs (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [CPA338].
10 Rakuraku v R [2016] NZCA 351 at [26].
11 At [26].
12 Bell v New Zealand Police [2023] NZCA 291 at [42].
the Court of Appeal has noted that in some cases that will be difficult when very few steps have been taken to advance the appeal.13
Analysis
Non-compliance with the statutory requirements
[50]All three statutory requirements necessary to dismiss an appeal are satisfied:
(a)The appellant has failed to comply with the timetable and other procedural requirements fixed for the appeal. He has also failed to comply with the requirements when given a time extension.
(b)The appellant has had more than 10 working days’ notice of the Court’s intention to dismiss the appeal if the appellant failed to take further steps to advance his appeal. That indication was given in March 2024.
(c)The appellant has not rectified the non-compliance within the notice period. He has not instructed counsel to file submissions nor been communicative and cooperative with counsel. For completeness, neither has he filed submissions himself.
[51] Considered overall, the appellant has had many opportunities to advance his appeal but has failed to do so on each occasion provided to him.
Merits of the proposed appeal at a high level
[52] Even at a high level, the merits of the proposed appeal are difficult to assess given the non-compliance with the procedural requirements — in particular, no submissions have been filed by the appellant — and T’s failures to communicate with counsel.
[53]The documents filed show that there are three grounds of appeal.
13 At [42].
[54] First, that the complainant and her grandmother were unreliable witnesses who gave inconsistent evidence and therefore the evidence was insufficient to lead to the conviction.14 The alleged evidential insufficiency is a weak argument on its face. The Judge carefully assessed the strength of all evidence. The Judge reminded himself of the burden of proof. The Judge found the complainant to be a reliable and consistent witness, in contrast to the defendant who the Judge found had deliberately lied to the Court and pre-arranged a story with the complainant’s aunt (his partner) to paint the circumstances in a better light. The Judge set the defendant’s evidence aside. The Judge does not appear to have been unfairly prejudiced in his assessment of the evidence after the defendant’s lie was revealed. The Judge applied the correct legal tests and standard and burden of proof. Without any further supporting submissions or evidence about the ground of appeal alleging evidential insufficiency/unreliable witnesses, there can be only a preliminary indication that this ground is likely to be weak.
[55] The second ground of appeal is that the Judge erred in not granting a discharge without conviction under s 106 of the Sentencing Act 2002.15 No information about this ground is available beyond that. I note that the defence written submissions filed in advance of sentencing did not seek a discharge without conviction. If a discharge without conviction was not sought, the argument on appeal that the Judge failed to reach this outcome is inevitably weak.
[56] Finally, the appellant raises a question of trial counsel competence.16 T has not articulated what his complaints with trial counsel are, which makes the merits of this ground difficult to assess even at a high level. I note for the record that trial counsel filed written submissions referring to authorities and the pre-sentence reports and appeared at the trial, making submissions and examining witnesses in accordance with correct trial procedure.
Interests of justice
[57]In my view it is in the interests of justice to dismiss the appeal.
14 Notice of Appeal dated 31 July 2023.
15 Notice of Appeal dated 31 July 2023.
16 Memorandum of Counsel, Scott Jefferson, dated 19 October 2023.
[58] The appellant has served his sentence. Although appeals are an important mechanism of criminal justice, there is no clear basis upon which the appeal would be likely to succeed. Further the appellant has shown no motivation to comply with the procedural requirements necessary to advance that appeal within the 12 months since lodging the appeal.
[59] The victim is still a child, now approximately 15, and finality of the matter is important.
Result
[60]I dismiss the appeal under s 338 of the Criminal Procedure Act 2011.
Name suppression
[61] The appellant’s name is suppressed under s 200(2)(f) of the Criminal Procedure Act 2011 to avoid identification of the complainant, whose name is suppressed under s 203.
Gwyn J
Solicitors:
Crown Solicitor, Napier
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