BALAJADIA v R [2021] NZCA 3

BALAJADIA v R [2021] NZCA 3 [3 February 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA368/2020[2021] NZCA 3BETWEEN LUISITO BALAJADIAApplicantAND THE QUEENRespondentHearing: 1 December 2020Court: Goddard, Lang and Hinton JJCounsel: No appearance for ApplicantE J Hoskin for RespondentJudgment: 3 February 2021 at 11.00 amJUDGMENT OF THE COURTThe application for leave to appeal out of time is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)[1] On 29 September 2017 Mr Balajadia was convicted in the District Court atAuckland of four offences against the Immigration Act 2009: two offences ofexploitation of a temporary worker contrary to s 351(1)(a)(ii), and two offencesinvolving provision of false and misleading information to Immigration New Zealandcontrary to s 342.[2] On 8 February 2018 he was sentenced to eight months' home detention.1[3] On 10 July 2020 Mr Balajadia filed an application for leave to appeal out oftime against his conviction for these offences.[4] Mr Balajadia was originally represented by Mr Goodwin. By memorandumdated 12 November 2020 Mr Goodwin advised this Court that he could not responsiblyargue the grounds of appeal set out in Mr Balajadia's notice of appeal. This Courtissued a minute dated 16 November 2020 excusing Mr Goodwin from furtherattendance. The minute advised Mr Balajadia that if he failed to take steps to prosecutehis appeal on the date of hearing, he would be at risk of his appeal being dismissed forwant of prosecution.[5] Mr Balajadia's appeal against conviction was set down to be heard on1 December 2020. He was required to file his written submissions by10 November 2020 under r 27(3) of the Court of Appeal (Criminal) Rules 2001(Rules). No submissions were filed by or on behalf of Mr Balajadia.[6] Mr Balajadia's appeal was called before this Court on 1 December 2020.There was no appearance by or on behalf of Mr Balajadia.[7] On 1 December 2020 this Court issued a further minute recording that in thesecircumstances s 338 of the Criminal Procedure Act 2011 applied. This Court notifiedMr Balajadia that if he did not rectify his non-compliance with the Rules requiringhim to file submissions, and file submissions within 10 working days of the date ofthe minute, the Court intended to dismiss his appeal.2[8] Mr Balajadia has not rectified his non-compliance with the Rules requiring himto file submissions. The Court has not received any other communication fromMr Balajadia.1 Police v 3 Kings Food Distributors Ltd [2018] NZDC 2173 at [16].2 Criminal Procedure Act 2011, s 338(2).[9] In these circumstances, we exercise the power under s 338(1) of theCriminal Procedure Act to dismiss Mr Balajadia's application for leave to appeal outof time.Result[10] The application for leave to appeal out of time is dismissed.Solicitors:Crown Law Office, Wellington for Respondent