JAVED v R [2022] NZCA 587

JAVED v R [2022] NZCA 587 [30 November 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA703/2018[2022] NZCA 587BETWEEN ABDUL JAVEDAppellantAND THE KINGRespondentCourt: Brown, Mallon and Downs JJCounsel: No appearance for the AppellantB F Fenton for RespondentJudgment:(On the papers)30 November 2022 at 11.00 amJUDGMENT OF THE COURTThe appeal is dismissed for non-compliance with a procedural order.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Mr Javed's conviction[1] Following a trial by jury in the District Court at Manukau in August 2018,Mr Javed was found guilty of one charge of aggravated burglary. On 11 October 2018he was sentenced by Judge Wharepouri in respect of that charge to three years andnine months' imprisonment.1 Prior to trial he had pleaded guilty to a number of othercharges, namely indecent assault, breach of sentences of community work and1 Police v Javed [2018] NZDC 21691.supervision, and possession of a pipe, utensils, cannabis and methamphetamine.On each of those charges he was sentenced to one month's imprisonment, with allsentences to be served concurrently.The appeal[2] On 19 November 2018 he filed a notice of appeal against his conviction on thecharge of aggravated burglary. The grounds of appeal were:Lack of Evidence.Potential Trial Lawyer Incompetence.[3] Timetabling directions were made for the filing of the affidavits required byr 12A of the Court of Appeal (Criminal) Rules 2001 (the Rules). On 15 January 2019an extension of four weeks for filing affidavits was sought by counsel for Mr Javed,to which the Crown consented.[4] In a minute dated 21 March 2019, Williams J granted Ms Maxwell-Scott leaveto withdraw as counsel for Mr Javed. Mr Foley was instructed as counsel andthe Crown consented to an extension of time until 29 August 2019 in order to reviewthe file.[5] On 20 August 2019 French J granted Mr Foley leave to withdraw as counseland directed that a telephone conference be held on 28 August 2019 to discussthe progress of the appeal. The conference was adjourned to 2 October 2019 to enableMr Javed to communicate with Legal Aid.[6] At a telephone conference on 3 October 2019 Mr Javed advised that, havingmade no progress with Legal Aid, he would represent himself. He agreed to waivesolicitor/client privilege and to file a written statement detailing his grounds of appeal.In the interests of time the Crown agreed that the material relating to trial counsel errorneed not be in the form of a sworn affidavit at that stage. On 24 October 2019 and4 November 2019 letters were received from Mr Javed detailing his concerns.[7] On 10 December 2019 a detailed affidavit was filed of Mr Cooke, counsel forMr Javed at his trial.[8] In a minute dated 25 May 2020, following a telephone conference on that sameday, French J recorded that the hearing of the appeal would necessitatecross-examination of both Mr Javed and Mr Cooke. The appeal was set down for ahalf-day hearing on 23 July 2020 in Auckland.[9] On 22 June 2020 Mr Javed signed and filed a notice of abandonment ofhis appeal. However it appears that his intention was merely to abandon the hearingdate (that is, seek an adjournment) rather than the appeal itself. His application forleave to withdraw the notice of abandonment was granted in a judgment dated13 July 2020.2 The Court directed the registrar to allocate a new hearing date aftermid-September 2020, if possible in Wellington. A new fixture was allocated for23 March 2021 in Wellington. It appears that Mr Javed was released fromManawatu Prison on 2 March 2021.[10] Mr Javed then applied for an adjournment of the March 2021 fixture.The application was granted by Collins J on 1 March 2021. The Judge directed thatMr Javed's submissions were to be filed by 23 April 2021 and that the appeal was tobe set down again for hearing as soon as possible.[11] A number of telephone communications followed between Mr Javed andthe Registry in which he continued to indicate that he would be applying forreconsideration of his request for legal aid. However Legal Aid confirmed on2 August 2022 that no application had been received. Mr Javed had stopped answeringcalls from the Registry. In those circumstances, Collins J directed on 18 August 2022that the appeal be set down for hearing on the papers. Mr Javed was directed to filewritten submissions by 20 September 2022. He did not file any submissions.2 Javed v R [2020] NZCA 282.The s 338 notice[12] Section 338(1) of the Criminal Procedure Act 2011 (CPA) empowers this Courtto dismiss an appeal if an appellant fails to comply with timetable or other proceduralorders fixed for the appeal. Before dismissing an appeal on that basis, this Court mustgive the appellant 10 working days' notice of its intention to dismiss the appeal.3[13] On 13 October 2022 the Court issued a minute summarising the history ofthe appeal and advising that the failure by Mr Javed to file submissions amounted tonon-compliance with a procedural order in terms of s 338(1) of the CPA. The minuteprovided 10 working days' notice of the Court's intention to dismiss the appeal asrequired by s 338(2).4[14] The Court directed the Crown to ask the police to ascertain Mr Javed'swhereabouts so as to serve the notice effectively.5 In a memorandum dated7 November 2022 Ms Fenton, counsel for the Crown, advised that on 14 October 2022police attended Mr Javed's last known address at 698 Pioneer Highway, PalmerstonNorth, which is his address for the purposes of r 42 of the Rules. The occupantinformed the officer that Mr Javed no longer lived in or owned the property.[15] Police then attempted to locate Mr Javed at an address in Hamilton, but theoccupant of that property informed the officer that Mr Javed had moved out inApril 2022 and that they had no new address or details for him. A police officer alsoattempted, without success, to reach Mr Javed on his last known cell phone number.[16] We consider that these efforts sufficed for the giving of notice pursuant tor 42(a) of the Rules. Mr Javed did not rectify his non-compliance with the directionto file submissions within the notice period.63 Criminal Procedure Act 2011, s 338(2).4 Javed v R CA703/2018, 13 October 2022 at [6].5 At [7].6 Criminal Procedure Act, s 338(3).Discussion[17] On the basis of the detailed affidavit of Mr Cooke, it is difficult to see howMr Javed could succeed on either of his nominated grounds of appeal. In his DVDinterview with the police Mr Javed initially denied the burglary. However, wheninformed that his fingerprints were found on a windowsill, he changed his account.He admitted the burglary but claimed that he never actually entered the house.[18] Mr Javed elected to give evidence (a choice confirmed in writing), being awarethat this provided an opportunity to tell the jury his account. The verdict implies thisaccount was rejected which, on the evidence, we think unremarkable.[19] In these circumstances we do not consider that it is arguable that a miscarriageof justice occurred.[20] We note that Mr Javed's appeal was filed in 2018 and has been beset by a seriesof delays since that time. This Court has already made generous allowances, includinggranting Mr Javed's application to withdraw his notice of abandonment. Mr Javednever applied for reconsideration of his legal aid request, despite leading the Court tobelieve he had done so. Lastly, the public has an interest in the finality of these courtproceedings, as does the victim of Mr Javed's offending. This is an appropriate casefor the exercise of this Court's discretion under s 338 of the CPA.Result[21] The appeal is dismissed for non-compliance with a procedural order.Solicitors:Crown Law Office, Wellington for Respondent