TUA v R [2022] NZCA 521

TUA v R [2022] NZCA 521 [3 November 2022]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA617/2021[2022] NZCA 521BETWEEN BARRETT TUAAppellantAND THE KINGRespondentCourt: French, Brown and Gilbert JJCounsel: Appellant in personJ A Eng for RespondentJudgment:(On the papers)3 November 2022 at 3 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Following a trial by jury in the District Court at Whangārei in May 2021,Mr Tua was found guilty of offending against two female complainants, then aged 13and 11 respectively — one charge of rape, one charge of sexual conduct with a youngperson, one charge of threatening to kill, five charges of sexual conduct with a childunder 12, one charge of assault with intent to injure and one charge of assault ona child. Mr Tua was sentenced on 24 September 2021 to 12 years, six months'imprisonment and ordered to serve a minimum period imprisonment of five years.1[2] Mr Tua filed a notice of appeal against conviction on 14 October 2021.Trial counsel error was identified as a possible appeal ground.[3] In a minute dated 3 December 2021, Clifford J noted that the date forcompliance with rr 12A and 12B of the Court of Appeal (Criminal) Rules 2001had passed. He reminded counsel of their professional obligations as detailed inHall v R2 and directed Mr Tua to advise the Court by 17 December 2021 whether trialcounsel error was to be pursued and whether he wished to adduce further evidence onappeal.[4] Clifford J subsequently granted counsel's request for an extension of time until21 December 2021.[5] Counsel for Mr Tua was granted leave to withdraw on 15 February 2022.[6] In a telephone conference on 22 June 2022, Mr Tua said he needed more timeto engage replacement counsel to assist him with his appeal. A further extension oftime of one month was granted but Mr Tua was advised that he needed to make promptprogress.[7] At a follow-up telephone conference held on 26 July 2022, Mr Tua advisedthat he was having difficulty progressing his application for legal aid. An extensionof time of three weeks was granted.[8] A further telephone conference was held on 25 August 2022. Mr Tua advisedthat he wanted more time to consider whether to pursue his appeal. A further extensionof time of one month was allowed for this purpose. Mr Tua was directed, no later than16 September 2022, to either sign a notice of abandonment of appeal or file properly1 R v Tua [2021] NZDC 19171.2 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26.particularised grounds of appeal. Mr Tua was warned that if he did not comply withthis direction, his appeal may be dismissed.[9] Mr Tua failed to comply with this direction.[10] Section 338(1) of the Criminal Procedure Act 2011 empowers this Court todismiss an appeal if an appellant fails to comply with timetable or other proceduralorders fixed for the appeal. Before dismissing an appeal on this basis, this Court mustgive the appellant 10 working days' notice of its intention to dismiss the appeal.3[11] On 23 September 2022, Gilbert J issued a minute summarising the backgroundand advising Mr Tua that if he did not file properly particularised grounds of his appealby 21 October 2022, this Court intended to dismiss his appeal.[12] No grounds of appeal have been filed. In the circumstances, it is appropriatethat the appeal be dismissed.Result[13] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent3 Criminal Procedure Act 2011, s 338(2).