Takiaho v The Queen

[2021] NZCA 107

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA13/2019
 [2021] NZCA 107

BETWEEN	DARRYN THOMAS TAKIAHO Appellant
AND	THE QUEEN Respondent

Court:	French, Gilbert and Collins JJ
Counsel:	Appellant in Person Crown Law Office for Respondent
Judgment: (On the papers)	12 April 2021 at 9 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

1. Mr Takiaho pleaded guilty part way through trial to charges of theft and aggravated assault.[1]  On 6 November 2018 he was sentenced to a term of imprisonment of one year and four months.[2] 

   [1]R v Takiaho [2018] NZDC 23191 at [1].

   [2]At [23].

2. Mr Takiaho filed a notice of appeal against conviction and sentence on 22 January 2019.  The stated grounds of appeal were that his original charge had been amended and the advice he had been given was wrong — namely that his co‑defendants took a deal and he was told to do the same because he “wouldn’t stand a chance”.  Mr Takiaho claimed the aggravated assault and theft never happened and sought to apply for leave to call two witnesses who he said would verify his claim.

The procedural history of this appeal

1. Following a case management conference, in a minute dated 23 August 2019, Collins J made timetabling directions requiring Mr Takiaho to:[3]

   (a)File and serve his waiver of privilege by 27 September 2019.

   (b)File and serve statements from two witnesses setting out the evidence Mr Takiaho wished to adduce from them by 11 October 2019.

   (c)File submissions outlining his reasons for appeal by 25 October 2019.

   [3]Takiaho v R CA13/19, 23 August 2019 (Minute of Collins J).

2. A further case management conference was conducted on 28 November 2019. Following this, Collins J issued a minute granting Mr Takiaho extensions to file and serve his waiver of privilege by 9 December 2019 and to produce a witness statement by 13 December 2019.[4]  Neither document was filed or served.

   [4]Takiaho v R CA13/19, 28 November 2019 (Minute of Collins J).

3. Another telephone conference took place on 4 August 2020 where Collins J issued a minute directing Mr Takiaho to file an affidavit by 7 September 2020.  Mr Takiaho was also directed to file witness statements and the waiver of privilege he had said he would file.[5]

   [5]Takiaho v R CA13/19, 4 August 2020 (Minute of Collins J).

4. None of the above matters have ever been actioned.  Attempts to arrange a telephone conference call last year and again in February of this year have been unsuccessful due to Mr Takiaho’s failure to respond to communications from the Registry.

5. On 26 February 2021, French J issued a minute vacating the fixture date and giving Mr Takiaho formal notice that unless he filed an affidavit, waiver of privilege and witness statements by 16 March 2021, he was at risk of the Court exercising its powers under s 338(1) of the Criminal Procedure Act 2011 to dismiss the appeal.[6]

   [6]Takiaho v R CA13/19, 26 February 2021 (Minute of French J).

6. Mr Takiaho has not complied with this formal notice and no reasonable explanation for the failure has been provided.

7. We have therefore decided to dismiss the appeal. 

Outcome

1. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent