Radich v New Zealand Police [2017] NZHC 3013

Radich v New Zealand Police [2017] NZHC 3013 [6 December 2017]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI TERENGA PARĀOA ROHECRI-2017-488-000027[2017] NZHC 3013BETWEEN LESTER RADICHAppellantAND NEW ZEALAND POLICERespondentOn the papersAppearances: Appellant, self-representedMB Smith for the RespondentJudgment: 6 December 2017JUDGMENT OF TOOGOOD JThis judgment was delivered by me on 6 December 2017 at 3.00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy Registrar[1] On 8 June 2017, Lester Wayne Radich was convicted by Judge GL Davis inthe District Court at Dargaville on one charge under ss 81A and 82 of the HarassmentAct 1997 of verbal abuse, having already threatened the complainant some monthsearlier. He was also convicted of a charge under s 21 of the Summary OffencesAct 1981 of threatening to injure a complainant knowing that his conduct wasreasonably likely to frighten that person. On the same day, Judge Davis sentencedMr Radich to six months' imprisonment on the charge under the Harassment Act andto a concurrent sentence of one month's imprisonment on the charge under theSummary Offences Act. The Judge imposed standard release conditions and specialrelease conditions which included a non-association order and a direction toparticipate in counselling or treatment programmes as directed by the CommunityProbation Service.[2] Mr Radich filed notice of an appeal against his conviction on 4 July 2017.[3] When the matter was first before this Court at a callover, Moore J set down theappeal for hearing at 11.45 am on 14 September 2017 and made timetable directions.The Judge noted that Mr Radich failed to appear at the callover but was informed bythe Crown Solicitor that Mr Radich had served his sentence and should have beenreleased from custody. Moore J noted that if there was no appearance by Mr Radichon 14 September 2017 the appeal may be treated as abandoned.[4] Mr Radich appeared before Muir J on 14 September 2017, but he had failed tofile and serve his submissions as directed. Mr Radich informed the Court that he hadinstructed counsel. Muir J adjourned the matter to the callover list at 9.00 am on21 September 2017. In the Minute which he issued that day, the Judge put Mr Radichon notice that strict adherence to any future requirements which the Court imposeswill be necessary or his appeal would be struck out.[5] Mr Radich failed to appear at the callover at 9.00 am on 21 September 2017 asdirected by Muir J. He was granted a further indulgence in that the matter wasadjourned to the callover a week later on 28 September 2017. Mr Radich was warnedthat unless he appeared on that date, the appeal would be struck out for want ofprosecution.[6] On 28 September 2017, Mr Radich appeared at the callover and informed theCourt that he had instructed Mr Shepherd as counsel. Timetable directions were madefor the filing of detailed points on appeal; any application for leave to adduce freshevidence; any affidavits in support and submissions in support of the application.Other timetable orders were made and the appeal was set down for a two-hour hearingon 13 February 2018 at 11.00 am. The matter was also listed for callover on Thursday7 December 2017.[7] An order was also made, however, that the matter should be called at 9.00 amon Thursday, 9 November 2017 to address the consequences of any fresh evidenceapplication of a kind which Mr Radich had signalled.[8] Mr Radich failed to appear when the matter was called before Moore J on9 November 2017. The Judge issued a Minute tracing the history of failure byMr Radich to comply with Court orders and the indulgences which he had beengranted. In his Minute issued that day, Moore J said:[8] Section 338 of the Criminal Procedure Act 2011 provides the Courtwith the power to dismiss an appeal for non-compliance with the proceduralorders. However, s 338(2) requires the appeal Court to give the appellant10 working days' notice of its intention to dismiss the appeal before it mayexercise the powers under s 338(1).[9] I propose to invoke the powers under s 338 and I direct that Mr Radichis to comply with the outstanding orders of Toogood J within 10 working daysof this Minute being posted or delivered to him.[10] In the event of non-compliance with this order I direct that the file bereferred to the Whangarei List Judge following the expiration of the period bywhich time, if there remains any non-compliance, I would expect the Court totreat the appeal as abandoned and dismiss it in terms of s 338(1).[11] I direct a copy of this Minute be sent to Mr Radich at both the addressreferred to in his notice of appeal, namely 48 Hospital Road, Te Kopuru andthe address which it appears he nominated during his appearance beforeMuir J, namely P O Box 152, Dargaville. I also direct a copy of this Minutebe sent to Mr Shepherd and I direct that he is to advise the Court whether ornot he has been instructed on this appeal by Mr Radich.[9] It has been confirmed by the Registrar that copies of the Minutes were mailedto Mr Radich at the addresses set out in Moore J's Minute of 9 November 2017.Nothing has been received from Mr Radich.[10] Consistently with his duty as an officer of the Court, Mr Shepherd has filed acourteous memorandum informing the Court that Mr Radich had approachedMr Shepherd to assist him to complete a legal aid application so he could get counselassigned to him in respect of the appeal. Mr Shepherd said he had heard nothingfurther and was not aware whether Mr Radich had counsel assigned to him.Mr Shepherd asked the Court to note that Mr Radich might be in custody on freshcharges before the Dargaville District Court. Mr Shepherd confirmed, however, thathe was not instructed to appear for Mr Radich on the appeal.[11] The Registrar has conducted a search on the database of all courts and confirmsthat there is no active file for Mr Radich in any court.[12] Mr Radich having been notified under s 338(2) of the Court's intention todismiss the appeal for non-compliance with the Court's orders, and Mr Radich havingtaken no further steps in the matter, I treat the appeal as abandoned and dismiss it unders 338(1) of the Criminal Procedure Act............................................Toogood J