SPEIRS v POLICE [2019] NZHC 641

SPEIRS v POLICE [2019] NZHC 641 [1 April 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2018-419-000002[2019] NZHC 641BETWEEN LUKE BENEDICT SPEIRSAppellantAND NEW ZEALAND POLICERespondentHearing: 26 March 2019Counsel: JE Tarrant for AppellantBT Vaili for RespondentJudgment: 1 April 2019JUDGMENT OF DOWNS JThis judgment was delivered by me on Monday, 1 April 2019 at 11 am.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Hamilton.JE Tarrant, Hamilton.This case[1] Mr Luke Speirs chose not to appear at the hearing of his conviction appeal,having (twice) been directed he must. I dismissed the appeal for want of prosecution.I said I would give my reasons later. Hence this judgment.Principle[2] The Criminal Procedure Act 2011 contains no explicit power for a criminalappeal Court to dismiss an appeal when the appellant does not appear. That Act does,however, provide for dismissal of an appeal when the appellant has not complied withprocedural orders and been warned of the risk of dismissal for continued non-compliance.1 So, may a criminal appeal Court dismiss an appeal when the appellantchooses not to appear?[3] The short answer is yes, through exercise of inherent power. But, only whenappropriate.[4] In Haslam v Police, Mr Haslam failed to appear at his sentence appeal.2 Heknew of the hearing. Mr Haslam had not filed submissions, despite a reminder. Therehad been several adjournments. Wylie J dismissed the appeal for "want ofprosecution".3 Venning J noted the availability of the power in Sarandovs v Police4and Cole v Police,5 but declined to exercise it on either occasion. In Chand v PoliceLang J did, observing Mr Chand had not filed submissions or appeared.6 Otherexamples are identified by Mr Shane Campbell in "Procedural non-compliance andwant of prosecution in criminal appeals",7 including Mangu v R.8 The decision isimportant.1 Criminal Procedure Act 2011, s 338. The provision was incorporated to address the decision ofthe Supreme Court in Petryszick v R [2010] NZSC 105, [2011] 1 NZLR 153. Petryszick was notabout an appellant who failed to appear, but one who failed to comply with timetable orders of theappeal Court. Petryszick's discussion of the requirement for adjudication on the merits needs tobe understood in this context.2 Haslam v Police [2015] NZHC 249.3 At [9].4 Sarandovs v Police [2014] NZHC 927.5 Cole v Police [2013] NZHC 68.6 Chand v Police [2014] NZHC 2853.7 Shane Campbell Procedural non-compliance and want of prosecution in criminal appeals [2015]NZLJ 349.8 Mangu v R [2015] NZCA 151.[5] Mr Mangu was convicted of drink-drive offences. He appealed conviction andsentence to the High Court, but twice failed to appear to argue his appeal. Lang Jdismissed the appeal for want of prosecution. Mr Mangu sought permission to appealto the Court of Appeal. Mr Mangu argued the High Court failed to give him10 working days' notice of its intention to dismiss the appeal—a proceduralrequirement of the provision mentioned at [2]—so his appeal had been wronglydismissed.[6] The Court rejected this argument as "misconceived".9 It noted Lang J had notrelied on the statute; rather, inherent power. Lang J's dismissal of the appeal was "theentirely conventional outcome following non-appearance of the appellant orcounsel on his behalf to advance the appeal at the hearing".10 Consequently, the Courtdid not permit Mr Mangu to bring his proposed appeal.[7] Mr Campbell argues the existence of a statutory power to dismiss an appeal forprocedural non-compliance means "the threshold for dismissal ought be increased"in relation to "the want of prosecution jurisdiction". It is unnecessary to address thiscontention. It is sufficient to observe inherent power must be exercised with care,especially given the importance of a defendant's appeal rights and related criminaljeopardy.11The chronology[8] Mr Speirs was found guilty of male assaults female on 22 November 2017. Hereceived a non-custodial sentence.[9] Mr Speirs filed this appeal on 4 January 2018. 14 March 2018 was fixed tohear it. Toogood J granted an adjournment as the appeal was not ready to proceed.7 May 2018 was fixed. Van Bohemen J granted an adjournment as Mr Speirs' counselhad "only recently been appointed to represent Mr Speirs".12 29 June 2018 wasfixed. Whata J granted a further adjournment as anticipated scientific examination9 Mangu v R, above n 8, at [7].10 At [6].11 A defendant's right of appeal is affirmed by s 25(h) of the New Zealand Bill of Rights Act 1990.12 Speirs v Police HC Hamilton CRI-2018-419-000002, 3 May 2018 at [2] (Minute).remained incomplete. 7 September 2018 was fixed. Katz J granted anotheradjournment to facilitate Mr Speirs' change of representation. 17 December 1918 wasfixed. Brewer J granted yet another adjournment as Mr Speirs did not come to court.To be clear, he had not then been directed to. 28 February 2019 was fixed.[10] On 31 January 2019, the Crown filed and served a cross-examination notice inrelation to Mr Speirs. By then, trial counsel competence was central. Mr Speirs hadsworn an affidavit criticising trial counsel—and waived legal professional privilege.Trial counsel responded with an affidavit contesting Mr Speirs' allegations.On 8 February 2019, the High Court issued a notice directing Mr Speirs to attend thehearing on 28 February. So too his sister, who had sworn an affidavit in support of theappeal.[11] At 1.15 pm on 28 February, Jagose J adjourned the appeal. Jagose J was toldMr Speirs' flight from Nelson had been "delayed, with no expectation he will beavailable by 2.15 pm". The Judge recorded he had "no choice but to adjourn the appealto a date to be set by the Registry". 26 March was fixed, before me.[12] On 15 March 2019, the Registrar sent an email to the parties' lawyers,reminding them of the hearing. Mr Philip Hamlin had been acting for Mr Speirs, onlegal aid, since August the preceding year. Mr Hamlin replied that afternoon, sayinghe was having "... difficulty in obtaining instructions and shortly will let you know ifI will be still acting on the appeal date".[13] On 21 March, I heard a telephone conference. Mr Hamlin sought permissionto withdraw. Mr Hamlin said he had not been able to obtain instructions fromMr Speirs since December 2018, even though he and Mr Speirs remained in contact.Mr Hamlin said Mr Speirs had not responded to his requests for information relevantto the appeal. Mr Hamlin said he wrote to Mr Speirs on 11 March, explaining hewould seek leave to withdraw on 20 March if Mr Speirs did not engage with him bythen. Mr Hamlin said he conveyed the same advice orally to Mr Speirs on 15 March.Mr Hamlin said Mr Speirs had not engaged. Finally, Mr Hamlin said Mr Speirs' sisterhad twice travelled from Christchurch for the appeal, and she had told him she wouldnot do so a third time.[14] I asked Mr Hamlin about Mr Speirs' attendance at hearings. Mr Hamlin saidhe arranged for Mr Speirs to attend court on 17 December, but Mr Speirs did not. Inrelation to 28 February, Mr Hamlin said Mr Speirs "missed" his flight from Nelson;not his plane had been delayed.[15] I granted Mr Hamlin permission to withdraw on the basis his relationship withMr Speirs had broken down. I issued a Minute that day capturing developments,adding:13I direct:(a) The appeal will proceed on Tuesday (26 March 2019).(b) Mr Speirs must attend the hearing.(c) A copy of this Minute is to be sent by the Registrar to Mr Speirs.The hearing on 26 March[16] Mr Speirs did not attend. Neither did his sister. Trial counsel did. So tooMs Jessica Tarrant, who said the Legal Services Agency had recently instructed her toact for Mr Speirs.[17] Ms Tarrant said she not heard from Mr Speirs "at all", but Mr Hamlin hadcalled her at approximately 9.50 that morning. Mr Hamlin told her he had givenMr Speirs her contact details. Mr Hamlin also told her Mr Speirs "would not becoming to court" as Mr Speirs was "in the bush in Otaki".[18] The Crown asked me to dismiss the appeal for want of prosecution. Ms Tarrantsaid she "could not resist the application". I granted it.Reasoning[19] I concluded Mr Speirs:(a) Knew of the hearing date, and his obligation to attend.1413 Minute of 21 March 2019 at [6] (emphasis in original).14 At the conference, Mr Hamlin said he too would send Mr Speirs a copy of my Minute, by email.(b) Had chosen not to.(c) Had also chosen not to contact Ms Tarrant, whose details he had fromMr Hamlin.[20] I also concluded:(a) Mr Speirs' attendance was necessary because of the conflict betweenhis testimony and that of trial counsel, and the centrality of counselcompetence to the appeal.15(b) Given all this—including the unhappy chronology—the interests ofjustice required the appeal's dismissal for want of prosecution...Downs J15 Mr Speirs' sister's evidence was not as important. But, her absence was not helpful.