Wikio and Beckham v Attorney-General

[2009] NZCA 221

IN THE COURT OF APPEAL OF NEW ZEALAND

CA486/2008
[2009] NZCA 221

BETWEENKANE WIKIO

First Appellant

ANDBUNNY BECKHAM

Second Appellant

ANDATTORNEY-GENERAL

Respondent

Court:Chambers, O'Regan and Ellen France JJ

Counsel:T Ellis for Appellants

C R Gwyn for Respondent

Judgment:2 June 2009 at 2 pm

(On the papers)

JUDGMENT OF THE COURT

AThe application for an extension of time for filing the case on appeal and for applying for the allocation for fixture is dismissed. 

B        No order as to costs. 

REASONS OF THE COURT

(Given by Chambers J)

[1] On 8 August last year, Kane Wikio and Bunny Beckham, the appellants, appealed against a decision of MacKenzie J in the High Court at Wellington: 8 HRNZ 544.

[2]       Under r 43(1) of the Court of Appeal (Civil) Rules 2005, an appeal is to be treated as having been abandoned if the appellant does not apply for the allocation of a hearing date and file the case on appeal within six months after the appeal is brought.  Subclause (2) provides that this court can grant an extension of the period referred to in subcl (1) on timely application.  Mr Ellis, for the appellants, did apply for an extension in January this year. 

[3]       The application was due to be heard on 7 April.  Mr Ellis sought an adjournment of the hearing.  This court granted it.  The application was set down again, this time for 4 May. 

[4]       Mr Ellis sought a further adjournment.  Again, this court granted one.  The matter was rescheduled to be heard on 2 June. 

[5]       On 12 May, Mr Ellis advised the court that the Legal Aid Review Panel had upheld the Legal Services Agency’s decision to decline legal aid for this appeal.  This effectively means the appeal cannot continue.  The appellants do not have legal aid and Mr Ellis is not minded to continue on a pro bono basis.  In his memorandum, he explains that he has already undertaken on Mr Beckham’s behalf “a 2003 Privy Council pro bono criminal special leave application”, which was unsuccessful.  He adds:

In short, a well informed independent observer would conclude counsel had done more than enough. 

[6]       The Legal Services Act 2000 does provide for an appeal from decisions of the Legal Aid Review Panel to the High Court, but only on questions of law: see s 59.  Mr Ellis has not provided us with a copy of the panel’s decision.  He has not indicated any arguable errors of law in it. 

[7]       In his memorandum, Mr Ellis asked that we deal with his outstanding application on the papers.  Ms Gwyn, for the Attorney-General, the respondent, has consented to that course.  By consent, therefore, the members of the panel designated to hear this application on 2 June have considered the material filed, conferred and agreed upon this judgment. 

[8]       In the circumstances as they have now developed, there is no point in extending the time under r 43(1), as there is no realistic prospect that the appellants will be able to pursue this appeal.

[9]       We also note that each of the appellants has already had the benefit of a full merits appeal to this court.  Each was represented by counsel on his appeal.  As indicated, Mr Beckham also sought leave to appeal to the Privy Council, but that court declined leave. 

[10]     The application is accordingly dismissed.  In accordance with the rules, the appeal is therefore to be treated as having been abandoned. 

Solicitors:
Nat Dunning Law, Wellington, for Appellants
Crown Law Office, Wellington, for Respondent