MITCHELL v NEW ZEALAND POLICE [2019] NZCA 497

MITCHELL v NEW ZEALAND POLICE [2019] NZCA 497 [16 October 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA210/2019[2019] NZCA 497BETWEEN NEVILLE MORGAN MITCHELLAppellantAND NEW ZEALAND POLICERespondentHearing: 29 July 2019Court: French, Mallon and Moore JJCounsel: T Aickin for AppellantA J Ewing for RespondentJudgment: 16 October 2019 at 2.30 pmJUDGMENT OF THE COURTA The application for an extension of time for filing the leave application isgranted.B The application for leave to appeal is granted.C The appeal is allowed. The decision of the High Court is quashed for wantof jurisdiction.D The matter is remitted back to the High Court for reconsideration.E The High Court is directed to reconsider whether the appellant's appeal inthat Court should be dismissed for non-compliance with procedural ordersunder s 338 of the Criminal Procedure Act 2011, in light of the matters setout in this judgment.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Introduction[1] The appellant, Neville Morgan Mitchell, was convicted of assault followinga judge-alone trial in May 2018.[2] He appealed his conviction and sentence but failed to meet various timetablingdirections requiring him to file his grounds of appeal.[3] In the High Court, his appeals were dismissed for procedural non-complianceunder s 338 of the Criminal Procedure Act 2011 (CPA).1[4] Mr Mitchell seeks leave to appeal that decision.2 This is opposed by theCrown.[5] Because Mr Mitchell's application for leave was filed out of time he requiresan extension of time for filing.3 Given the circumstances we grant the extension.The conviction[6] It is alleged that on 8 June 2017 Mr Mitchell went to a physiotherapy clinic inWānaka to make a complaint against one of the staff. The owner of the practice invitedhim into the tearoom to talk. Things apparently became heated. A physiotherapist,Mr Jenkins, attempted to escort Mr Mitchell out of the building. Mr Mitchell allegedlypushed Mr Jenkins three times. On the last occasion it is said the push was sufficientlyhard to cause Mr Jenkins to lose his balance. The police were called.[7] Mr Mitchell was interviewed by the police and the interview was recorded onDVD. He admitted pushing Mr Jenkins but said Mr Jenkins had been using stand overtactics like a bouncer. Mr Mitchell was charged with common assault.41 Mitchell v Police [2019] NZHC 178 at [47].2 Criminal Procedure Act 2011, s 339(1)3 Section 339(5).4 Summary Offences Act 1981, s 9; the maximum penalty is six months' imprisonment or a fine notexceeding $4,000.[8] At the judge-alone trial before Judge Garland in the Queenstown DistrictCourt, staff from the physiotherapist's clinic gave evidence.5 Mr Mitchell elected notto give or call evidence.6 However, the DVD of his interview with the police wasplayed.7[9] On 9 May 2018 the Judge convicted Mr Mitchell,8 and sentenced him to40 hours' community work and nine months' supervision.9Procedural background[10] We set out below the procedural background in some detail because it providesimportant context.[11] On 5 June 2018 Mr Mitchell filed an appeal against both his conviction andsentence in the High Court at Invercargill, alleging errors of fact and law. The noticeof appeal was filed by Ms S Vidal. Ms Vidal had not represented Mr Mitchell inthe District Court.[12] On 26 September 2018 the High Court advised Mr Mitchell, care of Ms Vidal,that the appeal would be heard in the High Court at Invercargill on 23 October 2018.[13] Four days before the scheduled hearing, on 19 October 2018, Ms Vidal fileda memorandum. She advised she had received a provisional grant of legal aid to assesswhether there was a proper basis to advance Mr Mitchell's appeal. She said she hadreviewed the conviction and sentence decisions and was unable to discern a properbasis on which to advance the appeal. She reported that Mr Mitchell had raisedseparate issues regarding the competence of trial counsel as well as a procedural matterwhich was not apparent on the decisions of the Court. She said she had explained toMr Mitchell the need to obtain a waiver of legal professional privilege andthe requirement to file evidence. She sought leave to withdraw and asked for5 Police v Mitchell [2018] NZDC 14582 at [4] and [12].6 At [28].7 At [22].8 At [43].9 Police v Mitchell [2018] NZDC 14581.an adjournment of the appeal to enable Mr Mitchell to file the necessary documentsas he would be representing himself.[14] On 23 October 2018 Dunningham J issued a minute. She directed Mr Mitchellto file points on appeal and a waiver of privilege (if required) by 2 November 2018.She set the appeal down for hearing on 11 December 2018. Ms Vidal was grantedleave to withdraw.[15] On 31 October 2018, two days before the deadline, Mr Mitchell wrote tothe Court seeking an extension of time to file the documents. He explained healthissues which affected his ability to comply within the stipulated time.[16] On 5 November 2018 Dunningham J issued a further minute grantingMr Mitchell's application for an extension of time to 30 November 2018. She alsodirected:As this appeal has been on foot for some time, and both statutory and Court-ordered timetabling directions have not been complied with by the appellant,I direct that if the direction [to file points on appeal] is not complied by30 November 2018 the appeal is hereby dismissed pursuant to s 338 ofthe Criminal Procedure Act 2011.[17] The High Court's record confirms that a copy of the minute was sent toMr Mitchell at the address he had been using in his correspondence with the Court.[18] On 8 November 2018, the Court sent Mr Mitchell notice of the new date ofhearing, being 4 February 2019.[19] Then, on 27 November 2018, the Court sent Mr Mitchell a letter referring toDunningham J's first minute of 23 October 2018. This letter also recorded that ifthe Court's timetabling directions were not complied with by 30 November 2018the appeal would be dismissed.[20] Mr Mitchell did not file his points on appeal by 30 November 2018. As notedbelow he did not do so for another two months. However, it appears that inthe meantime there were discussions between him and Registry staff which includedadvice that Mr Mitchell needed to file his submissions. For example, on 17 December2018, he emailed Registry staff and asked the Court to send him a number ofdocuments. It appears court staff did not raise with him his failure to file his points onappeal by 30 November 2018 or the consequence of any failure to do so.[21] On 8 January 2019, the Registry sent Mr Mitchell copies of documents whichwere considered relevant to his appeal. These included the notes of evidence,particulars of witnesses, a transcript of his police evidential interview, a copy of JudgeGarland's conviction decision and a copy of the sentencing notes. Plainly, as far asthe Registry and Mr Mitchell were concerned, the appeal was still live.[22] On 25 January 2019, Mr Mitchell filed a 17 paragraph document setting outthe matters he wished to advance on his appeal. Although the document describeditself as "points on appeal" it appears to have been deficient in a number of materialrespects. Furthermore, no submissions were filed.[23] Curiously, despite Dunningham J's directions and Mr Mitchell'snon-compliance, the appeal was listed on 4 February 2019 before Nation J.Mr Mitchell appeared. When the case was called both Mr Mitchell and Crown counselindicated that, given what was included in the points on appeal, neither was ina position to proceed. Nation J stood the matter down presumably for the parties toconsider their positions and address him on what basis the appeal might proceedhaving regard to Dunningham J's directions.[24] When Nation J returned to Court, Mr Mitchell listed the issues he wished topursue on appeal. These can be summarised as:(a) the police's failure to disclose Mr Jenkins' criminal record forviolence;10(b) the police DVD interview was edited without his consent;1110 Mr Jenkins' criminal history reveals only one conviction for being in a bar while under age.11 It does not appear the DVD was edited and, in any event, that would be unusual in a judge-alonetrial.(c) trial counsel, Mr Mooney, did not ask Mr Mitchell if there were otherwitnesses who could have supported his account; and(d) Mr Mooney failed to seek instructions in respect of a ruling madeduring a chambers hearing.[25] These and other issues which appear to have been traversed at some length arerecorded in Nation J's detailed judgment of 15 February 2019.12 The Judge recordedthat Mr Mitchell's appeal had been dismissed pursuant to s 338(4) as directed byDunningham J.13 Nation J also recorded Mr Mitchell's right under s 339 to apply tothis Court for leave to appeal against the dismissal adding that by virtue of the delay,Mr Mitchell would have to seek an extension of time to file the application.14Presumably, Nation J understood the date of dismissal to have been 30 November2018 or shortly thereafter, as opposed to the date of his own decision.[26] On 15 May 2019 Mr Mitchell applied to this Court for leave to extend timeand leave to appeal the dismissal of his appeal in the High Court.Legal principles[27] The power to dismiss an appeal for non-compliance is contained in s 338 ofthe CPA. This provides:338 Power of appeal court to dismiss appeal for non-compliance withprocedural orders(1) Despite anything in subparts 2 to 10, an appeal court may dismiss anappeal if the appellant fails to comply with a timetable or other proceduralorders fixed for the appeal.(2) Before dismissing an appeal under subsection (1), the appeal courtmust give the appellant 10 working days' notice of its intention to dismiss theappeal.(3) The appeal court must not dismiss an appeal under subsection (1) ifthe appellant, after having been given notice under subsection (2), rectifies thenon-compliance within the notice period given by the court.12 Mitchell v Police, above n 1..13 At [47].14 At [48].(4) A reference in any enactment other than this section tothe abandonment of an appeal under this Act must, unless the contextotherwise requires, be read as including a reference to a dismissal undersubsection (1).(5) In this section, appeal includes an application for leave to appeal.[28] Section 338 applies if three pre-requisites are met. These are:(a) the appellant failed to comply with a procedural order or timetable;15(b) the appeal Court gave the appellant 10 working days' notice of itsintention to dismiss the appeal;16 and(c) the appellant failed to rectify the non-compliance within that period.17[29] The appeal court then has a discretion to dismiss the appeal for non-complianceunder s 338. The discretion is guided by the interests of justice, balancing the right ofappeal affirmed by s 25(h) of the New Zealand Bill of Rights Act 1990 (NZBORA)with Parliament's intention when enacting s 338. In other words, the right to appealis not untrammelled. Finality, particularly for victims, is also important.[30] These principles were discussed by this Court in Rakuraku v R.18In considering the limits of the right affirmed by s 25(h) of NZBORA, this Courtobserved that the power to dismiss an appeal for non-compliance recognises that thereare countervailing considerations relevant to the interests of justice includingthe Crown's legitimate expectation that it should be provided with adequateparticulars of the grounds of appeal to enable a proper response and the public interestin the finality of court proceedings. The orderly and efficient administration ofthe court is also a relevant consideration although an appeal would not normally bedismissed under s 338 unless there had been serious, repeated and continuingnon-compliance with the court's directions.15 Criminal Procedure Act, s 338(1).16 Section 338(2).17 Section 338(3).18 Rakuraku v R [2016] NZCA 351 at [26].[31] Section 339 of the CPA provides for the right to appeal a court's decision todismiss an appeal for non-compliance. Relevantly it provides:"339 Appeal against dismissal under section 338(1) An appellant may, with the leave of the relevant appeal court, appealto that court against a dismissal of an appeal under section 338.(2) The relevant appeal court is—(a) the High Court, if the appeal is against the dismissal of anappeal under that section by the District Court; or(b) the Court of Appeal, if the appeal is against the dismissal ofan appeal under that section by the High Court; or(c) the Supreme Court, if the appeal is against the dismissal of anappeal under that section by the Court of Appeal.(3) An appellant commences an appeal under this section by filing anotice of application for leave to appeal in the relevant appeal court.(4) A notice of application for leave to appeal must be filed within 20working days after the date of the dismissal appealed against.(5) The relevant appeal court may, at any time, extend the time allowedfor filing a notice of application for leave to appeal.(6) The relevant appeal court must determine an appeal under this sectionby either—(a) dismissing the appeal; or(b) allowing the appeal and remitting the matter to the courtappealed from with any directions it considers appropriate.(7) The determination of an appeal by the relevant appeal court under thissection is final."[32] Where an applicant seeks leave under s 339, we agree with Ms Ewing forthe Crown that the following principles are engaged:(a) It is for the applicant to establish that leave to appeal should begranted.19(b) Leave to appeal under s 339 involves a challenge to a discretionarydecision (except when the applicant can show that one of the three19 R v Leonard [2007] NZCA 452, [2008] 2 NZLR 218 at [12].statutory pre-requisites was absent). Thus, leave to appeal requiresthe applicant to show that the Judge erred in principle, gave weight toextraneous or irrelevant matters, failed to give sufficient weight torelevant considerations, or was plainly wrong.20(c) It is not enough for an applicant to simply establish that the dismissedappeal may have merit.21 It is the decision to dismiss fornon-compliance, and not the conviction and/or sentence, which ischallenged.(d) Therefore, to obtain leave, the applicant must establish an arguable casethat the discretion under s 338 was wrongly exercised.SubmissionsAppellant[33] Ms Aickin, who now acts for Mr Mitchell, submitted this Court should grantleave under s 339 having regard to the following factors:(a) At all material times in the High Court, Mr Mitchell was unrepresentedand in poor health. This was conveyed to the Court by Mr Mitchellwhen he sought an extension to the original timetabling directions.(b) No inquiries appear to have been made by the Court as to whether itwould be appropriate to appoint counsel to assist.(c) Any non-compliance was not prolonged and is explicable having regardto Mr Mitchell's personal circumstances and the late delivery of centralCourt documents which he did not receive until early January 2019.(d) Mr Mitchell and the Court/Registry through their conduct appear tohave believed the appeal remained on foot despite non-compliance20 At [14](e); and R v Reid [2007] NZSC 90, [2008] 1 NZLR 575 at [23].21 Indeed, s 338 was enacted to enable the Court to dismiss an appeal on this basis without anyconsideration of its merits: Rakuraku v R, above n 18, at [25].following Dunningham J's minute. Examples include discussionsMr Mitchell had with Registry staff about documentation, the Courtsending Mr Mitchell parts of the District Court record in early Januaryand the listing of the appeal for hearing on 4 February 2019.(e) The Court was advised by Ms Vidal that she did not believe there wasany proper basis to advance an appeal. This may have wronglyinfluenced the Court in its decision.(f) Mr Mitchell does not appear to have been advised of his right to seekfurther representation through legal aid. Relatedly, on the question ofeffective access to justice, Mr Mitchell lives in Wānaka, Ms Vidal wasbased in Dunedin and the appeal was being brought in the High Courtat Invercargill.(g) It does not appear there were any telephone conferences convened orsteps taken by the Court to bring home to Mr Mitchell what theconsequences for his appeal might be in the event of non-compliancewith timetabling orders.(h) It would be contrary to the interests of justice if the backgroundcircumstances which explain the reasons for non-compliance were nottaken into account.(i) Mr Mitchell is now represented by counsel and the appeal is beingpresented efficiently and with minimum delay.(j) Mr Mitchell has fully instructed counsel as to the matters he wishes toadvance on appeal. Legal professional privilege has been waived.Mr Mitchell has sworn an affidavit setting out his principal grounds ofappeal. This has been served on the Crown. Mr Mooney has beencontacted and is in a position to make an affidavit.[34] For these same reasons, Ms Aickin also submitted this Court should allowthe appeal and remit the matter back to the High Court.Crown[35] Ms Ewing submitted that because Mr Mitchell does not dispute the statutorypre-requisites under s 338 of the CPA were met he must therefore establish an arguablecase that Dunningham J erred in a qualifying way when dismissing his appeal.[36] She submitted he has not done so. Mr Mitchell's affidavit evidence filed insupport of his application under s 339 explains his non-compliance by reason of healthproblems, lack of legal representation and unfamiliarity with appeal procedures.Ms Ewing submitted that all of these matters would have been apparent whenthe appeal was dismissed. Moreover, Mr Mitchell elected to continue unrepresentedwhen his lawyer decided not to advance his chosen grounds. All litigants, representedor otherwise, have a responsibility to comply with court-imposed timetabling orders.[37] Furthermore, Ms Ewing submitted that the material filed in this Court does notestablish an error in Dunningham J's decision. The appeal was dismissed for repeatednon-compliance and, absent clear error in that decision, Mr Mitchell cannot simplypoint to the merits of the substantive appeal in order to obtain leave to appeal itsdismissal[38] Finally, if this Court was prepared to consider the new material advanced insupport, Mr Mitchell's proposed appeal in the High Court is wholly lacking in merit.Discussion[39] In this Court, the oral submissions evolved somewhat differently fromcounsel's written submissions. The focus was on whether Dunningham J's minute of5 November 2018 on which Nation J relied had in fact been effective to bringproceedings to an end.[40] We do not think it was and therefore consider that a meritorious issue ofjurisdiction arises warranting the granting of leave to appeal. Section 338(2) requiresthe appeal court to give the appellant 10 working days' notice of its intention todismiss the appeal. If there is non-compliance, at the expiration of that period,the court may exercise its discretion to dismiss the appeal. However, that was notwhat was done in this case. There was no separate judicial act following the expiry ofthe 10 working day period. Instead, Dunningham J's direction was, in effect,prospective; she directed that if the points on appeal were not filed by 30 November2018 the appeal would automatically be dismissed.[41] In our view s 338 requires a separate judicial consideration following the actor acts of non-compliance. In this case that should have occurred when the 10 workingday period expired on 30 November 2018. Only at that time would the High Courthave been in a position to make a proper assessment of all the circumstances whichmight justify dismissing the appeal for non-compliance. That did not occur.We consider this was an error which justifies remitting the matter back tothe High Court, so it can reconsider whether to dismiss Mr Mitchell's appeal fornon-compliance.[42] We discussed with counsel the correct process to be followed by a court (inthis case the High Court) when making the final decision whether to dismiss an appealfor non-compliance and in particular whether a further hearing for that purpose isrequired. In our view, given the scheme and purpose of the legislation as discussed inRakuraku a further hearing is not necessarily required but that option would beavaliable to a court if considered appropriate in the circumstances.[43] As already mentioned, what is however required is a separate judicialdetermination. The Judge should consider the extent of the non-compliance and anyother material relevant to the exercise of the Court's discretion under s 338 includingany reasons for non-compliance. The decision should then be recorded in the form ofa brief judgment with reasons.[44] For completeness, we have also considered whether Nation J's judgmentamounted to a dismissal of the appeal in terms of s 338. We do not believe that it did.That decision found that Mr Mitchell's appeal had been dismissed whenthe 10 working day period expired. It simply purported to confirm the dismissal.[45] We have concluded the High Court could not have dismissed Mr Mitchell'sappeal under s 338 without separate judicial consideration. The matter will now beremitted back to the High Court. It is not for us to determine whether,upon reconsideration under s 338, Mr Mitchell's appeal should or should not bedismissed. We do, however, note the following points:(a) Although Mr Mitchell did not file his points on appeal by 30 November2018 he did engage in discussions with High Court Registry staff withina few weeks of that deadline. Plainly neither he nor Registry staffregarded his appeal as having been dismissed or abandoned and hisfailure to file his points by 30 November 2018 was not discussed withhim. It is reasonable to assume from that, and his subsequentbehaviour, that Mr Mitchell believed his appeal was still live.(b) This belief would have been reinforced when the Registry, on 8 January2019, sent Mr Mitchell copies of documents which were consideredrelevant to his appeal. Again, he was not advised his appeal had beendismissed.(c) Just over a fortnight after receiving these papers he filed the documentwhich purported to be his points on appeal.(d) The High Court set the appeal down for hearing on 4 February 2019 —at which time both Mr Mitchell and counsel for the Crown appeared.(e) Throughout, Mr Mitchell was unrepresented and did not appear tounderstand that he could re-apply for legal aid followingthe withdrawal of Ms Vidal.(f) The non-compliance was not prolonged having regard to Mr Mitchell'sparticular circumstances.(g) Now Mr Mitchell is represented by counsel the appeal is capable ofbeing pursued in a timely and orderly fashion.Result[46] The application for an extension of time for filing the leave application isgranted.[47] The application for leave to appeal is granted.[48] The appeal is allowed. The decision of the High Court is quashed for want ofjurisdiction.[49] The matter is remitted back to the High Court for reconsideration.[50] The High Court is directed to reconsider whether the appellant's appeal in thatCourt should be dismissed for non-compliance with procedural orders under s 338 ofthe CPA, in light of the matters set out in this judgment.Solicitor:Crown Law Office, Wellington for Respondent