ALI v R [2023] NZCA 557

ALI v R [2023] NZCA 557 [8 November 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA307/2023[2023] NZCA 557BETWEEN ASHIK ALIApplicantAND THE KINGRespondentCourt: Cooper P, Palmer and Jagose JJCounsel: S Kumar for ApplicantC A Brook for RespondentJudgment:(On the papers)8 November 2023 at 11.00 amJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Palmer J)[1] On 1 February 2022, Mr Ashik Ali, the applicant, pleaded guilty in theDistrict Court to a representative charge of male assaults female.1 He was notconvicted because he indicated his intention to seek a discharge without conviction.On 30 September 2022, with advice from new counsel, Mr Ali applied to vacate hisguilty plea under s 115 of the Criminal Procedure Act 2011 (the Act). On 28 April2023, the District Court declined the application.21 Crimes Act 1961, s 194(b).2 R v Ali [2023] NZDC 7477.[2] Mr Ali now applies for leave to appeal that decision on two questions:(a) whether the Court has a residual discretion to refuse leave to withdrawa guilty plea when the criteria for doing so have been made out; and(b) whether the criteria for withdrawing a guilty plea are made out in ascenario where four factual propositions establish trial counsel error.[3] The appeal is proposed to be brought under s 296 of the Act, which applieswhere a person has been charged with an offence.3 Section 296(2) requires the appealto be "on a question of law against a ruling by the trial court". But neither of Mr Ali'squestions of law satisfy that requirement:(a) The first question does not qualify because the District Court expresslyfound that the criteria for withdrawing a guilty plea had not been madeout on the facts.4(b) The second does not qualify because the District Court expresslyrejected all four factual propositions.5[4] The proposed appeal would be on matters of fact, not issues of law as isrequired. Accordingly, this Court does not have jurisdiction to entertain the proposedappeal under s 296 of the Act.[5] The application for leave to appeal is declined.Solicitors:Sanjay Barristers & Solicitors, AucklandTe Tari Ture o te Karauna | Crown Law Office, Wellington3 Criminal Procedure Act 2011, s 295(1).4 R v Ali, above n 2, at [28]–[29].5 At [18]–[19] and [24]–[26].