COE v R [2022] NZCA 631

COE v R [2022] NZCA 631 [16 December 2022]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA28/2021[2022] NZCA 631BETWEEN DANIEL COEAppellantAND THE KINGRespondentCourt: French, Courtney and Collins JJCounsel: Appellant in PersonMRL Davie for RespondentJudgment:(On the papers)16 December 2022 at 10 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)[1] In January 2021 Daniel Coe filed a notice of appeal against conviction andsentence. Mr Coe was represented by Mr Fairley. The notice of appeal indicated thatthe grounds of appeal were that the verdicts were against the weight of the evidence,and that the verdicts were inconsistent. Mr Fairley subsequently ceased acting forMr Coe. Mr Coe applied for legal aid.[2] In April 2021 Mr Pyke was assigned to act for Mr Coe. He filed amemorandum on 26 May 2021 indicating that trial counsel error was being consideredas a ground of appeal. On 31 May 2021 Courtney J directed that particulars of thisground of appeal be provided and that any application to adduce further evidence wasto be filed by 15 July 2021. That direction was not complied with. Courtney Jsubsequently directed that the particularised grounds of appeal be filed by 20 August2021, and that counsel were to advise by that date whether further evidence orparticulars were needed. That direction was not complied with.[3] In September 2021 Mr Pyke was granted leave to withdraw. Mr Simperinghamwas assigned to act for Mr Coe. A new timetable was agreed: a particularised noticeof appeal was to be filed by 3 December 2021 and counsel was to advise whetherevidence from trial counsel would be needed. That direction was not complied with.[4] On 3 December 2021 Mr Simperingham advised that Mr Coe wished toterminate his engagement. By July 2022 there had been no indication of new counselhaving been assigned. Upon inquiry, Legal Services advised that it had not receiveda request for reassignment.[5] There was a telephone conference on 1 November 2022, which Mr Coeattended in person. He advised that he had been unable to find a solicitor to act forhim and queried whether he could advance the appeal in person. As recorded inCourtney J's minute of 3 November 2022, Mr Coe was advised that he could advancethe appeal in person, but that he would need to specifically identify the grounds of theappeal, and that it was an appeal that would be more effectively advanced with theassistance of counsel.[6] Mr Coe was directed to file a particularised notice of appeal by 22 November2022. Further, because of the lack of progress over more than 18 months, Mr Coe wasput on notice under s 338(1) of the Criminal Procedure Act 2011 that if this directionwas not complied with the Court intended to dismiss the appeal.[7] Mr Coe has not filed particularised grounds of appeal. He has not contactedthe Court with an explanation as to why the direction was not complied with. He hasnot taken any other steps to advance the appeal. With no progress at all in nearly twoyears, and no sign of any progress being made, we consider that the appropriate courseis to dismiss the appeal.[8] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent