TE HUIA v R [2019] NZCA 542

TE HUIA v R [2019] NZCA 542 [7 November 2019]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS E, T AND MPROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAMES,ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OFVICTIMS PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT2011 REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA281/2016[2019] NZCA 542BETWEEN MICHAEL TE ARAWAKA TE HUIAAppellantAND THE QUEENRespondentHearing: 29 October 2019Court: Kόs P, Venning and Thomas JJCounsel: P K Hamlin for AppellantA J Ewing for RespondentJudgment: 29 October 2019 at 12.10 pmReasons: 7 November 2019JUDGMENT OF THE COURTA The application for adjournment of the appeal hearing is declined.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)[1] In March 2016, Michael Te Arawaka Te Huia was found guilty by a jury of21 criminal offences, including serious sexual offending and physical violencetowards four former partners over a period of nearly 30 years. He was sentenced to19 years' imprisonment with a minimum period of imprisonment of nine years andsix months.1 In June 2016, he filed a notice of appeal against conviction.[2] The hearing of the appeal took place on 29 October 2019. We dismissedthe appeal. We now give our reasons.Background[3] Mr Te Huia represented himself at his trial, having earlier dismissed hiscounsel. Paul Dacre QC was appointed senior counsel assisting the Court andSam Wimsett (one of Mr Te Huia's former counsel) was appointed junior counselassisting the Court.[4] Following the filing of Mr Te Huia's notice of appeal, on 20 July 2016 French Jdirected Mr Te Huia to file full grounds of appeal by 18 August 2016. On 19 August2016, French J extended the deadline to 2 February 2017, noting there would be nofurther extensions. In September 2016, Quentin Duff, having been appointed counselfor Mr Te Huia, advised the Registry he would endeavour to file particularised groundsof appeal by the end of October 2016. On 8 November 2016, French J directedgrounds of appeal to be filed by 22 December 2016. On 20 January 2017, followingMr Te Huia's correspondence to Legal Aid, Mr Duff advised the Registry he was nolonger acting.[5] On 13 November 2017, following Mr Te Huia's advice to the Court to the effectthat Legal Aid was not corresponding with him but he did want to find his own lawyer,French J directed the appeal be set down for hearing in 2018.1 R v Te Huia [2016] NZHC 1045.[6] On 16 January 2018, the Registry allocated a hearing date of 19 March 2018,requiring submissions from Mr Te Huia to be filed by 26 February 2018.Following involvement of Jonathan Krebs, now acting for Mr Te Huia, the hearingwas adjourned to allow Mr Krebs to advise Mr Te Huia on the merits of the appeal.[7] On 26 July 2018, Mr Krebs sought leave to withdraw on the basis he had beenunable to identify a ground of appeal that could responsibly be advanced. A furthertelephone conference was directed, at which Mr Te Huia was to explain his groundsof appeal.[8] On 22 January 2019, the Registry allocated a hearing date of 8 May 2019,requiring Mr Te Huia's submissions to be filed by 12 April 2019. On 18 April 2019,Mr Hamlin filed a memorandum with the Court explaining he was acting forMr Te Huia on legal aid but was unable to obtain instructions or to identify anygrounds of appeal. He informed the Court that he had advised Mr Te Huia that, unlessMr Te Huia advised the Court of his substantive grounds of appeal, his appeal mightbe dismissed at the hearing on 8 May 2019.[9] On 30 April 2019, Courtney J granted a "final" adjournment of the appealhearing of 8 May 2019. She required Mr Te Huia's submissions to be filed no lessthan 15 working days before the hearing date, putting him on notice that a failure tocomply could result in notice of the Court's intention to dismiss the appeal.[10] On 26 July 2019, the Registry allocated a hearing date of 29 October 2019.Mr Te Huia's submissions were required by 8 October 2019. They were not filed.Instead, the day prior Mr Hamlin sought an adjournment of the hearing date on thebasis he had been unable to obtain instructions or the necessary waivers to enable himto advance grounds for the appeal.2[11] On 8 October 2019, the President directed that no further adjournment wouldbe given prior to scheduled hearing of the appeal, but that the application would beconsidered, if pursued, at that hearing itself. Mr Te Huia should not assumean adjournment would be granted.2 In respect of enquiries of former counsel.[12] On 10 October 2019 the Crown sought dismissal of Mr Te Huia's appeal fornon-compliance.3Hearing 29 October 2019[13] By the time of the hearing date, no grounds of appeal had been filed.Mr Hamlin provided short submissions addressing the Crown's application to dismissthe appeal for non-compliance. He also submitted the refusal of the trial Judge to grantan adjournment of the trial had created a risk a miscarriage of justice had occurred.He sought a further adjournment of the appeal hearing on the basis that more time wasrequired to obtain evidence in support of the appeal.[14] Mr Hamlin explained in his oral submissions that he had been unable to"extract" from Mr Te Huia the grounds of appeal, saying, although Mr Te Huia hadraised issues he would like dealt with, there was "nothing concrete at this stage".Mr Hamlin acknowledged that he was unable to receive instructions but notedMr Te Huia's "deep distrust" of lawyers, saying Mr Te Huia was communicatingbetter with Mr Hamlin than he had three months ago.[15] Mr Hamlin confirmed he was not in a position to advance the appeal.Assessment[16] Mr Te Huia's appeal was filed in June 2016. Over three years later, and despitenumerous orders of this Court and two adjournments of the appeal hearing, no groundsof appeal and no submissions in support of the appeal had been filed. This was despiteat least two warnings from the Court.[17] At least three counsel have been involved in the appeal. Mr Krebs,senior counsel, advised the Court in July 2018 that he was unable to identify a groundof appeal that could responsibly be advanced.3 Criminal Procedure Act 2011, s 338.[18] The complainants gave evidence at trial well over three years ago.They continue to await the outcome of Mr Te Huia's appeal. They are entitled to somefinality.[19] In the circumstances, there were no grounds to justify an adjournment ofthe appeal hearing, and it was declined. No submissions in support of the appeal werethen advanced.[20] We concluded that, despite a number of opportunities to do so, Mr Te Huia hadfailed to prosecute his appeal and for that reason it was dismissed.Result[21] The application for adjournment of the appeal hearing is declined.[22] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent