TAKIAHO v R [2021] NZCA 107

TAKIAHO v R [2021] NZCA 107 [12 April 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA13/2019[2021] NZCA 107BETWEEN DARRYN THOMAS TAKIAHOAppellantAND THE QUEENRespondentCourt: French, Gilbert and Collins JJCounsel: Appellant in PersonCrown Law Office for RespondentJudgment:(On the papers)12 April 2021 at 9 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Takiaho pleaded guilty part way through trial to charges of theft andaggravated assault.1 On 6 November 2018 he was sentenced to a term of imprisonmentof one year and four months.21 R v Takiaho [2018] NZDC 23191 at [1].2 At [23].[2] Mr Takiaho filed a notice of appeal against conviction and sentence on22 January 2019. The stated grounds of appeal were that his original charge had beenamended and the advice he had been given was wrong — namely that hisco-defendants took a deal and he was told to do the same because he "wouldn't standa chance". Mr Takiaho claimed the aggravated assault and theft never happened andsought to apply for leave to call two witnesses who he said would verify his claim.The procedural history of this appeal[3] Following a case management conference, in a minute dated 23 August 2019,Collins J made timetabling directions requiring Mr Takiaho to:3(a) File and serve his waiver of privilege by 27 September 2019.(b) File and serve statements from two witnesses setting out the evidenceMr Takiaho wished to adduce from them by 11 October 2019.(c) File submissions outlining his reasons for appeal by 25 October 2019.[4] A further case management conference was conducted on 28 November 2019.Following this, Collins J issued a minute granting Mr Takiaho extensions to file andserve his waiver of privilege by 9 December 2019 and to produce a witness statementby 13 December 2019.4 Neither document was filed or served.[5] Another telephone conference took place on 4 August 2020 where Collins Jissued a minute directing Mr Takiaho to file an affidavit by 7 September 2020.Mr Takiaho was also directed to file witness statements and the waiver of privilege hehad said he would file.5[6] None of the above matters have ever been actioned. Attempts to arrange atelephone conference call last year and again in February of this year have been3 Takiaho v R CA13/19, 23 August 2019 (Minute of Collins J).4 Takiaho v R CA13/19, 28 November 2019 (Minute of Collins J).5 Takiaho v R CA13/19, 4 August 2020 (Minute of Collins J).unsuccessful due to Mr Takiaho's failure to respond to communications from theRegistry.[7] On 26 February 2021, French J issued a minute vacating the fixture date andgiving Mr Takiaho formal notice that unless he filed an affidavit, waiver of privilegeand witness statements by 16 March 2021, he was at risk of the Court exercising itspowers under s 338(1) of the Criminal Procedure Act 2011 to dismiss the appeal.6[8] Mr Takiaho has not complied with this formal notice and no reasonableexplanation for the failure has been provided.[9] We have therefore decided to dismiss the appeal.Outcome[10] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent6 Takiaho v R CA13/19, 26 February 2021 (Minute of French J).