MANGU v R CA514/2014 [2015] NZCA 151

MANGU v R CA514/2014 [2015] NZCA 151 [6 May 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA514/2014[2015] NZCA 151BETWEEN ROBERT-WAYNE MANGUAppellantAND THE QUEENRespondentCourt: Wild, Clifford and Dobson JJCounsel: Appellant in personJ E L Carruthers for RespondentJudgment:(On the papers)6 May 2015 at 11.30 amJUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] Mr Mangu has applied for leave to bring a second appeal. He was convicted in the Invercargill District Court on 21 November 2013 on charges of refusing to supply a blood specimen, driving whilst forbidden and failing to give his full name and address. On the conviction for refusing to supply a blood specimen, he was disqualified for eight months and fined $750 plus Court costs. On the driving whilst forbidden conviction, he was fined $400 plus Court costs. On the third conviction, for failing to give his full name and address, he was discharged.11 Police v Mangu DC Invercargill CRI-2013-025-1473, 21 November 2013 [Notes of Judge C L Cook on Sentencing].[2] Mr Mangu appealed to the High Court. In circumstances described at [8]below, hearings for his appeal were adjourned twice and the appeal was eventually dismissed when Mr Mangu failed to appear on 25 August 2014.[3] On that date, Lang J dismissed the appeal in the following terms:2[2] On 19 July 2014, a police officer served Mr Mangu with a notice advising him that his appeal would be heard in this Court today. When the appeal was called, however, there was no appearance by or on Mr Mangu's behalf. The appeal against conviction and sentence is accordingly dismissed.[4] Mr Mangu has not disputed receiving prior notice of the date for hearing.[5] Mr Mangu has subsequently sought leave to bring a second appeal. He requested that the application for leave be determined on the papers, and the Crown has consented to that course. The ground of his appeal, if leave were given, is thathe was not given the 10 working days' notice of dismissal of his appeal, as stipulated in s 338(2) of the Criminal Procedure Act 2011 (CPA). That section provides as follows:338 Power of appeal court to dismiss appeal for non-compliance with procedural orders(1) Despite anything in subparts 2 to 10, an appeal court may dismiss an appeal if the appellant fails to comply with a timetable or other procedural orders 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 the appeal.(3) The appeal court must not dismiss an appeal under subsection (1) if the appellant, after having been given notice under subsection (2), rectifies the non-compliance within the notice period given by the court.[][6] As can be seen from [3] above, Lang J did not rely on s 338, and there was no issue of non-compliance with "a timetable or other procedural orders". Instead, theappeal was dismissed as the entirely conventional outcome following from non-2 Mangu v Police HC Invercargill CRI-2013-425-44 and CRI-2013-425-45, 25 August 2014 [Minute of Lang J on dismissal of appeal].appearance of the appellant or counsel on his behalf to advance the appeal at the hearing — of which he accepts he had notice.[7] It follows that Mr Mangu's assertion that there had been material non-compliance with the requirements of s 338(2) of CPA is misconceived. Accordingly, the application for leave to bring a second appeal is governed by s 223(3) of the CPA, requiring the applicant for leave to satisfy this Court that the appeal involves a matter of general or public importance, or that a miscarriage of justice may have occurred, or may occur unless the appeal is heard.[8] Mr Mangu has not made out either of those pre-conditions to a second appeal. The appeal had originally been set down for hearing in the High Court on 6 May 2014 and advice of that was posted to Mr Mangu at his home address. He failed to appear on that day. Instead of dismissing the appeal for want of an appearance, on that occasion Mander J adjourned the appeal to 30 June 2014.3Notification of that date was not conveyed by the Registry to Mr Mangu and on 2 July 2014 the appeal was further adjourned to 25 August 2014.4 The adjournment was on terms that Mr Mangu be put on notice that if he failed to appear on 25 August 2014, his appeal would be dismissed on that day. When Mr Mangu failed to appear on 25 August 2014, the appeal was dismissed by Lang J.[9] The notes of Judge C L Cook on sentencing Mr Mangu in the District Court on 21 November 2013 record that Mr Mangu had been in Court the previous daywhen the prosecution proved the elements of the charges to the Judge's satisfaction,and was again in the back of the Court during the sentencing the following day.5Mr Mangu acknowledged being the author of affidavits and correspondence on the Court file, but maintained he was not the defendant. The Judge accepted the evidence of two officers who identified Mr Mangu as the same person as the defendant in the charging documents and the person who was the driver of the vehicle when the alleged incidents occurred.3 Mangu v Police HC Invercargill CRI-2013-425-44, May 2014 [Minute of Mander J].4 Mangu v Police HC Invercargill CRI-2013-425-44 and CRI-2013-425-45, 2 July 2014 [Minute of Dunningham J].5 Notes of Judge C L Cook on Sentencing, above n 1, at [2] and [4].[10] The sentencing notes also record an orthodox analysis of the evidence offered on formal proof by the prosecution, and which was sufficient to satisfy the Judge that the elements of each of the charges were made out. The Judge's reasoning forfinding the elements of the charges proven was articulated in Mr Mangu's presence,and the notes record him being given an opportunity to comment, which he declined.6[11] In those circumstances, neither Judge Cook's handling of the matter in thetrial Court, nor Lang J's handling of the matter on first appeal to the High Court, gives rise to a matter of general or public importance. Nor is there any possibility of a miscarriage of justice.[12] Accordingly, the application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent6 At [19]–[25],