HWANG v NEW ZEALAND POLICE [2018] NZCA 391

HWANG v NEW ZEALAND POLICE [2018] NZCA 391 [27 September 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA687/2017[2018] NZCA 391BETWEEN JIMIN HWANGApplicantAND NEW ZEALAND POLICERespondentHearing: 30 August 2018Court: Winkelmann, Duffy and Peters JJCounsel: Applicant in personH G Max and J A Eng for RespondentJudgment: 27 September 2018 at 11.30 amJUDGMENT OF THE COURTLeave to appeal is granted.____________________________________________________________________REASONS OF THE COURT(Given by Duffy J)[1] Jimin Hwang applies for leave to bring a second appeal against conviction.[2] Following a defended hearing in the District Court at North Shore on8 May 2017, Judge Maude found Mr Hwang guilty and convicted him of the theft ofa Compaq laptop valued at $290.11 Police v Hwang [2017] NZDC 12372.[3] Mr Hwang was not present in the courtroom when his appeal was called forhearing in the High Court and so it was dealt with on the papers. Mr Hwang explainedto us that he attended the High Court on the day of the appeal hearing with the intentionof representing himself, legal aid having been declined. The appeal was listed to beheard before Brewer J at 2.15 pm on 31 October 2017.[4] Mr Hwang said he was unfamiliar with the courthouse and for that reason hewas elsewhere in the building when his appeal was first called. When Mr Hwangfailed to appear at the first call Brewer J had Mr Hwang's name called outside thecourtroom. There was still no appearance. The Judge seemingly adjourned the appealat that time and left the courtroom.[5] Some 10 or so minutes after 2.15 pm, Mr Hwang sought help from the Courtstaff and was directed to the relevant courtroom but found it locked. Mr Hwang saidnothing further to us about what he next did, but we assume the Judge was not advisedthat Mr Hwang was present and ready to pursue his appeal.[6] In a written judgment delivered the same day the Judge stated that he wassatisfied from his reading of the evidence and the written submissions available to himthat there was no merit in Mr Hwang's appeal, and so the appeal was dismissed.2[7] It seems, however, that Brewer J did not have all relevant material before him.Because Mr Hwang was self-represented he was given the opportunity by Lang J on1 September 2017 to file the points he wished to advance in a document.3 By the timeof the appeal hearing Mr Hwang had in fact filed two such documents. One, whichwas dated 20 January 2017, raised concerns about the complainant Mr Kang "framing"Mr Hwang for the theft of the laptop. This document was seen by the Judge becausehe refers to it in the decision dismissing the appeal.4 The other document, which wasdated 16 October 2017, raised arguments about the sufficiency of the evidence beforeJudge Maude. It seems Brewer J did not see this document because he does notmention it in the judgment.2 Hwang v Police [2017] NZHC 1171 at [13].3 Hwang v Police HC Auckland CRI-2017-404-226, 1 September 2017.4 At [10]–[12].[8] When Mr Hwang appeared before us it became clear that he has particulardisadvantages which impact upon his ability to represent himself in the criminal justicesystem. English is his second language and, from hearing him, it is apparent that hiscommand of the language is limited. He suffers from post-traumatic stress disorderand has Asperger syndrome. He is someone who, in our view, would struggle topresent his appeal to the Court. Nonetheless, Mr Hwang made a good effort of puttingbefore us fresh evidence which, on one view, would go some way to support hisdefence.5[9] Mr Hwang is now faced with having to meet the requirements to bring a secondappeal, for which leave is required.6Leave to bring a second appeal[10] Section 237 of the Criminal Procedure Act 2011 provides:237 Right of appeal against determination of first appeal court(1) A convicted person may, with the leave of the second appeal court,appeal to that court against the determination of the person's firstappeal under this subpart.(2) The High Court or the Court of Appeal must not give leave for asecond appeal under this subpart unless satisfied that—(a) the appeal involves a matter of general or public importance;or(b) a miscarriage of justice may have occurred, or may occurunless the appeal is heard.[11] A matter of general or public importance is one that raises an importantquestion of law having broad application beyond the circumstances of the particularcase.7 In relation to a first appeal against conviction, a miscarriage of justice is definedas any error or irregularity that has created a real risk that the outcome was affected.85 Mr Hwang provided us with copies of a text message which allegedly was sent to him by Mr Kangafter the trial. The text states that Mr Kang still has the stolen laptop in his possession. Mr Kangdenies the authenticity of this text.6 Criminal Procedure Act 2011, s 237.7 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].8 Criminal Procedure Act, s 232(4)(a).This Court has noted that this definition is relevant to an application for leave to bringa second appeal against conviction.9[12] Through an innocent mistake on his part, Mr Hwang lost the opportunity to beheard in his first appeal. Mangu v R is a case where an appellant sought leave to bringa second appeal to this Court after his appeal to the High Court was dismissed fornon-appearance.10 However, two earlier appeal hearings in the High Court had alreadybeen adjourned when Mr Mangu then failed to appear. The appeal was only dismissedon his third non-appearance.11[13] In the present case, Mr Hwang was given no chance to explain hisnon-appearance. Until then he had appeared at call-overs and complied with thetimetable direction imposed by Lang J for filing written argument in support of theappeal. Accordingly, there was no cause to believe Mr Hwang did not want to pursuehis appeal or that he was being dilatory in its pursuit. Nonetheless, no enquiry wasmade to see if there was a proper excuse for Mr Hwang's non-appearance on31 October 2017.[14] The loss of the opportunity for Mr Hwang to be heard on his appeal and to raiseall the points set out in the documents, which were correctly filed on time, raises aquestion of whether a miscarriage of justice may have occurred.[15] Accordingly, we are satisfied that leave to appeal should be granted toMr Hwang.[16] We observe that his appeal involves complex legal issues which may not beable to be adequately dealt with by a lay litigant. We understand from Mr Hwang thathe was declined legal aid for this application. He should reapply in the light of thegrant of leave.9 McAllister v R, above n 7, at [38].10 Mangu v R [2015] NZCA 151.11 At [2].Result[17] Leave to appeal is granted.Solicitors:Crown Law Office, Wellington for Respondent