MITAI v R CA613/2014 [2014] NZCA 603
Because the mandatory notice under s 338(2) was not given, the High Court's dismissal as abandoned was procedurally incorrect; the appropriate remedy was to allow the appeal and remit the matter to the High Court for determination on the merits.
Source-derived case information.
- Citation
- [2014] NZCA 603
- Parties
- Appellant: Hata Mitai; Respondent: The Queen
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 9 December 2014
- Procedural Posture
- Criminal Appeal / Court of Appeal Application for Leave to Appeal (granted)
- Outcome
- Leave to appeal granted; appeal allowed; matter remitted to the High Court for consideration on the merits.
- Legal Topics
- Abandonment of Appeal, Statutory Notice Requirements (s 338(2)), Remittal to High Court, Leave to Appeal
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hata Mitai
Appellant
The Queen
Respondent
Procedural Posture
Criminal Appeal / Court of Appeal Application for Leave to Appeal (granted)
Legal Issues
- 1 Whether the High Court validly dismissed the appeal as abandoned without complying with s 338(2) Criminal Procedure Act 2011
- 2 Whether a judge may treat an appeal as abandoned absent the statutory process in s 337
- 3 Proper remedy where mandatory notice under s 338(2) was not given
Ratio Decidendi
Because the mandatory notice under s 338(2) was not given, the High Court's dismissal as abandoned was procedurally incorrect; the appropriate remedy was to allow the appeal and remit the matter to the High Court for determination on the merits.
Court Disposition
Leave to appeal granted; appeal allowed; matter remitted to the High Court for consideration on the merits.
Orders
- Leave to appeal is granted.
- The appeal is allowed.
Full Case Text
Judgment text and source record
1 paragraphs
MITAI v R CA613/2014 [2014] NZCA 603 [9 December 2014]IN THE COURT OF APPEAL OF NEW ZEALANDCA613/2014[2014] NZCA 603BETWEEN HATA MITAIAppellantAND THE QUEENRespondentCourt: Randerson, Harrison and Stevens JJCounsel: M Dixon for AppellantB F Fenton for RespondentJudgment:(On the papers)9 December 2014 at 3:00 pmJUDGMENT OF THE COURTWith the consent of the respondent:A Leave to appeal is granted.B The appeal is allowed.C The matter is remitted to the High Court for consideration of theappellant's appeal to that Court on the merits.____________________________________________________________________REASONS OF THE COURT(Given by Randerson J)[1] After this application for leave to appeal was filed, I issued a minute on 1 December 2014 inviting the respondent to consent to the application for leave to appeal and to allowing the appeal.[2] I did so on the basis that, in dismissing the appellant's appeal from theDistrict Court as abandoned, the High Court must have been relying on s 338 of the Criminal Procedure Act 2011. The Crown accepts that the mandatory notice under s 338(2) was not given. This requires the Court to give the appellant ten workingdays' notice of its intention to dismiss the appeal under that section. While the Criminal Procedure Act provides a formal process for an appellant to abandon an appeal under s 337, it does not provide for a Judge to treat an appeal as abandoned.[3] In response to the minute of the Court, the Crown has now advised that it consents to the proposal contained therein.[4] Accordingly, with the consent of the respondent:(a) Leave to appeal is granted.(b) The appeal is allowed.(c) The matter is remitted to the High Court for consideration of theappellant's appeal to that Court on the merits.[5] It will be a matter for the High Court to determine whether further evidence may be allowed on the appeal and otherwise to give any directions that may be necessary to progress the appeal.Solicitors:Public Defence Service, Napier for AppellantCrown Law Office, Wellington for Respondent