SALEEM v R [2016] NZCA 425

SALEEM v R [2016] NZCA 425 [8 September 2016]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA114/2016[2016] NZCA 425BETWEEN SAJID SALEEMAppellantAND THE QUEENRespondentHearing: 30 August 2016Court: Wild, Courtney and Woodhouse JJCounsel: No appearance for AppellantT A Simmonds for RespondentJudgment: 8 September 2016 at 2.30 pmJUDGMENT OF THE COURTThe appeal, which is against both conviction and sentence, is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Wild J)[1] On 17 March 2016 Mr Saleem appealed against his conviction and sentence. He had been convicted on 19 January 2016 on one charge of indecent assault following a two day trial in the Auckland District Court. Mr Saleem had indecently assaulted a female passenger who he was transporting home in his taxi on the evening of 31 July 2015.[2] Judge Ronayne sentenced Mr Saleem to six months imprisonment.1 In doing so, the Judge granted Mr Saleem leave to apply for substitution of a sentence of home detention if he were able to provide a suitable address.2[3] Subsequently, Mr Saleem did provide a suitable address and his sentence was commuted to one of six months home detention. He completed serving that sentence on 18 June.[4] Mr Saleem's notice of appeal stated his grounds as follows:1 Re conviction — against weight of evidence. Additional evidence of car mirror not produced.2 Re sentence — manifestly excessive by not ordered CD/HD appendix expectation of community based sentence.[5] In a minute dated 12 August, Wild J granted Ms Green's application filed on27 July seeking leave to withdraw as counsel for Mr Saleem. Ms Green sought leave to withdraw because Mr Saleem declined to accept her advice that there was nothing she could responsibly advance in support of the appeal.[6] In his 12 August minute, Wild J suggested to Mr Saleem that pursuing an appeal against sentence was pointless, given that Mr Saleem had completed serving the commuted sentence of six months home detention.3 But Wild J added:However, if Mr Saleem does wish to pursue an appeal against sentence he should be at Court on 30 August ready to present oral submissions in support of his appeal against sentence.[7] Should Mr Saleem wish to pursue his appeal against conviction, Wild J directed that Mr Saleem needed, urgently, to file and serve with the Court and the Crown brief written submissions explaining why he says his conviction was against the weight of the evidence the jury heard. Similarly, he needed to file and serve anaffidavit or at least a statement setting out the "additional evidence of car mirror" hemaintains was not produced at his trial.1 R v Saleem [2016] NZDC 3174.2 At [21].3 Saleem v R CA114/2016, 12 August 2016 (Minute and Directions of Wild J).[8] On 17 August, the Case Manager handling this appeal sent Mr Saleem an email advising:The above appeal is set down for hearing on 30 August 2016 in the Criminal Appeal Division at the Court of Appeal, Auckland Hearing Centre, Level 11, 280 Queen Street, Auckland.Your matter is scheduled to start at 2:15pm. You will need to attend Court 15 minutes prior to that time.If there are any further questions please do not hesitate to contact me.[9] When the Case Manager received no reply to this email, she attempted to telephone Mr Saleem on 25 August. There was no answer. The Case Manager telephoned Mr Saleem again on 26 August, this time leaving a message for Mr Saleem to call her back. On the morning of 30 August, the Case Manager again telephoned Mr Saleem. In the course of this call the Case Manager made it clear to Mr Saleem that the hearing would go ahead at 2.15 pm and that Mr Saleem would need to make any request for an adjournment to the Court at that hearing.[10] This appeal was duly called at 2.15 pm on 30 August. There was no appearance by or for Mr Saleem. Mr Simmonds, appearing for the Crown, invited the Court to dismiss the appeal. Mr Simmonds had previously filed written submissions outlining why the Crown submitted the appeal should be dismissed.[11] The Court indicated to Mr Simmonds that it intended dismissing the appeal but would do so in a written judgment giving its reasons.[12] At 2.28 pm on 30 August, this Court's Case Manager received an email fromMr Saleem in the following terms:I am writing this with great distress that I have been waiting for the legal representation all this long and I am still optimistic that I will get this much needed legal aid to represent my matter before Judge Wild in court of Appeal.I had very poor representation and no defence was prepared and presented in District court.The ministry didn't have my application for reconsideration of full grant of legal Aid, which they have now.I will be very grateful for the consideration of my request to grant me extension of time, please.[13] Mr Saleem attached to that email a copy of an application by him for reconsideration/reassessment of legal aid, date stamped as received by the Waitakere Legal Aid Office on 8 August 2016.[14] The Court's decision is to dismiss this appeal. There are two reasons for doing that. First, it was made abundantly clear to Mr Saleem that the hearing of this appeal was at 2.15 pm on 30 August. If he wanted to pursue the appeal, or wanted to seek an adjournment of the hearing, he would need to be at Court at that time to do so. He was not there.[15] Secondly, the Court is satisfied that the appeal is without merit. Counsel assigned to assist Mr Saleem was of that view. That is unsurprising, since the Crown case was overwhelming. The jury heard the evidence of the female passenger Mr Saleem indecently assaulted. It also had a series of stills taken from the footage from the CCTV camera installed in the taxi. These showed Mr Saleem touching the complainant until something was placed over the camera lens obscuring it for approximately five minutes.4 The next pictures show a hand up near the camera lens and then Mr Saleem seated in the driver's seat of his taxi with the passenger seatempty.[16] In short, Mr Saleem did not appear at the scheduled hearing time to pursue an appeal that is meritless.Result[17] The appeal, which is against both conviction and sentence, is dismissed.Solicitors:Crown Law Office, Wellington for Respondent4 From 22.13.55 to 22.19.01 on the CCTV camera clock.