By Anna Longdill
Dismissal of appeal against conviction and sentence for non-compliance with procedural orders – Criminal Procedure Act 2011, s 338 – New Zealand Bill of Rights Act 1990, s 25(h) – serious, repeated and continuing non-compliance with Court’s timetable directions – dismissal of appeal is in the interests of justice
Green-Hiroti v Police [2024] NZHC 3436 per McQueen J
Peter Green-Hiroti pleaded guilty to a charge of assaulting a police officer. When he was arrested and handcuffed, he swung his head and headbutted the officer in the face, causing a minor injury to their eye. On 14 June 2024, Judge Krebs sentenced Green-Hiroti to three weeks’ imprisonment with no release conditions.
On 10 July 2024, Green-Hiroti filed a notice of appeal against conviction and sentence on the grounds that his case was not defended, a lawyer did not represent him in court and witnesses were not called.
At a judicial teleconference on 12 August 2024, Green-Hiroti advised the High Court that he intended to apply for legal aid but had not had a chance to do so. The teleconference was adjourned to 9 September 2024. It was then further adjourned at Green-Hiroti’s request.
On 23 September 2024, Green-Hiroti advised the court that he had been unable to apply for legal aid due to other commitments but still wished to continue with the appeal. The court set his appeal down for hearing on 8 November 2024 and made timetable orders requiring Green-Hiroti to file and serve a waiver of privilege (relating to counsel who represented him in the District Court), any application for leave to adduce further evidence, any further evidence, detailed grounds of appeal, submissions and authorities.
The court’s minute specifically recorded that if he did not progress the matter, consideration may be given to dismissing the appeal under s 338 Criminal Procedure Act 2011.
Green-Hiroti failed to comply with any aspect of the directions given.
On 16 October 2024, the Police sought to have the appeal dismissed under s 338 of the Act on the basis of non-compliance with procedural orders.
On 29 October 2024, the court issued a further minute, repeating the earlier warning that if Green-Hiroti did not progress the matter, consideration may be given to dismissing the appeal under s 338 of the Act.
The minute directed Green-Hiroti to provide a current address for service (including an email address) for the appeal and gave him until 13 November 2024 to rectify his non-compliance.
On 8 November 2024, at a further conference, Green-Hiroti apologised for not complying with any of the timetable directions, said he had an appointment to visit a lawyer who he intended to instruct for the appeal and sought a further extension of time to comply with the earlier directions.
The court gave Green-Hiroti one last chance, scheduled a conference for 14 November 2024, and stated that unless Green-Hiroti had complied with all of the earlier directions, the appeal would be struck out under s 338 of the Act.
On 13 November 2024, Green-Hiroti filed two handwritten documents. One criticised his lawyer in the District Court, the other described his account of the events underpinning the charge. The documents did not fulfil what was required under the timetable orders.
At the conference on 14 November 2024, Green-Hiroti stated he didn’t know what was required of him, was unable to obtain legal aid and the lawyer he spoke to was unable to help. He confirmed his goal was to vacate his guilty plea. The Police emphasised that no waiver of privilege had been provided, and this was critical.
Applicable principles: Criminal Procedure Act 2011, s 338; New Zealand Bill of Rights Act 1990, s 25(h) – are the statutory pre-conditions to dismiss the appeal under s 338 met? (yes, Green-Hiroti has not complied with the timetable orders, and he has been given more than 10 working days’ notice) – provisional or high-level assessment of the merits of the proposed appeal (appeal against conviction following entry of guilty plea only allowed in exceptional circumstances. In the circumstances, it is not likely the guilty plea has produced a miscarriage of justice) – is dismissal of the appeal in the interests of justice? (yes, non-compliance has been serious, repeated and continuing, failures run counter to public interest in finality of court proceedings and orderly and efficient administration of the court).
Held: The appeal against conviction and sentence is dismissed pursuant to s 338 Criminal Procedure Act 2011.
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