BELL v NEW ZEALAND POLICE [2023] NZCA 291

BELL v NEW ZEALAND POLICE [2023] NZCA 291 [11 July 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA689/2022[2023] NZCA 291BETWEEN SARAH BELLApplicantAND NEW ZEALAND POLICERespondentCourt: Cooper P, Moore, Fitzgerald JJCounsel: Applicant in personH S Cunningham for RespondentJudgment:(On the papers)11 July 2023 at 11.00 amJUDGMENT OF THE COURTThe application for leave to appeal pursuant to s 339 of the Criminal ProcedureAct 2011 is declined.____________________________________________________________________REASONS OF THE COURT(Given by Fitzgerald J)Introduction[1] Following a Judge-alone trial before Judge Rollo in the District Court,Miss Bell was found guilty of two charges of harassment and one charge of resistinga constable acting in the execution of his duty (the verdicts decision).11 Police v Bell [2021] NZDC 17810 [Verdicts decision].[2] The harassment charges arose out of Miss Bell using her personal email andfalse email addresses to send frequent, unsolicited and at times threatening andinsulting emails and text messages to two police employees. The third charge aroseout of the execution of a search warrant at Miss Bell's residential address in July 2020.[3] At trial, Miss Bell denied having sent the relevant text messages and emails.Judge Rollo rejected Miss Bell's evidence as untruthful and unreliable.2 He found thecharges proved beyond reasonable doubt.3 Miss Bell was directed to come up forsentence if called upon and ordered to pay court costs and emotional harm reparationstotalling $1,390.4[4] Miss Bell appealed her convictions to the High Court. The hearing of theappeal was scheduled to take place on 14 December 2022, having been adjournedtwice before to accommodate Miss Bell being unable to obtain legal representationand to ensure she had sufficient time to file written submissions in support of theappeal. Miss Bell was warned by the High Court on 17 October and again on1 December 2022 that if submissions in support of the appeal were not filed in advanceof the December hearing date, the appeal would be dismissed.[5] Miss Bell did not file written submissions in advance of the hearing date.Dunningham J accordingly dismissed the appeal for procedural non-compliance unders 338 of the Criminal Procedure Act 2011 (the Act).5[6] Miss Bell wishes to appeal against Dunningham J's decision to dismiss theappeal. Pursuant to s 339 of the Act, leave to appeal is required. The respondentconfirmed that it opposed leave being granted but that it did not request a separateleave hearing. On 13 February 2023, Clifford J directed that the leave application bedetermined together with the proposed appeal, and that the matter be dealt with on thepapers.2 At [124].3 At [149] and [157]–[158].4 Police v Bell [2021] NZDC 25059 [Sentencing notes] at [21]–[23].5 Bell v R HC Dunedin CRI-2021-412-50, 14 December 2022.Procedural background[7] We set out below the procedural background in some detail because it providesimportant context to Dunningham J's decision to dismiss the appeal, and to Miss Bell'sapplication for leave to appeal to this Court.[8] As noted, Miss Bell faced two charges of harassment and one charge ofresisting a constable acting in the execution of his duty.6 Miss Bell wasself-represented at the District Court trial, which occupied a one-day hearing inmid-May 2021.[9] It is not clear whether Miss Bell was self-represented at trial as a matter ofchoice. The charges were first called in the District Court on 28 July 2020, whenMiss Bell was represented by Mr Noel Rayner. However, he was granted leave towithdraw at an appearance on 10 November 2020. Ms Rhona Daysh was thenassigned as counsel but was granted leave to withdraw on 11 February 2021.7[10] Following the Judge-alone trial, the Judge delivered a lengthy reserveddecision finding all three charges against Miss Bell proved beyond reasonable doubt.8Miss Bell was scheduled to be sentenced on 30 November 2021. Mr Rayner wasreassigned to appear as counsel for Miss Bell at sentencing.[11] Miss Bell then filed three notices of appeal in the High Court. The first appearsto have been filed on 16 November 2021. It was said to be an appeal againstconviction.9 Under the heading "Grounds of the appeal", Miss Bell wrote "I amwriting to you for further consideration to be given because I have come across furtherinformation that wasn't available at the trial".6 Harassment Act 1997, s 8 (maximum penalty of two years' imprisonment); and Summary OffencesAct 1981, s 23(a) (maximum penalty of three months' imprisonment or $2,000 fine).7 It appears another lawyer may have also been assigned to represent Miss Bell at some point in2020. Papers sent by Miss Bell to the High Court Registry included a subsequent complaint byMiss Bell about the lawyer to Legal Aid Services.8 Verdicts decision, above n 1.9 The notice of appeal stated that the appeal was filed out of time, but it was filed prior to Miss Bell'ssentencing and was therefore within time: s 231(2) of the Criminal Procedure Act 2011.[12] On 26 November 2021, Miss Bell filed two more notices of appeal. The firstwas another appeal against conviction. Under the heading "Specify the grounds ofyour appeal", Miss Bell wrote "There is information to be considered that [was not]available at trial. There's quite [a bit] of information". Under the heading "Does yourappeal relate to the admissibility of evidence at trial?", Miss Bell ticked the boxmarked "Yes", stating "There are complexities involved, it's a tricky prosecution".She also stated "There is information Peter Rollo [has not] even got. It's a frighteningexperience". She recorded "I have text messages, and statements from MOJ, MOTand MSD I'd be happy to discuss and scan them to you." Miss Bell requested anoral hearing.[13] The second notice of appeal filed on 26 November 2021 purported to appealagainst sentence. At that time, however, Miss Bell had not yet been sentenced —sentencing being scheduled for 30 November 2021. Similar to the notices of appealagainst conviction, and under the heading "Grounds of the appeal", Miss Bell stated"There is information to be considered that [was not] available at trial". The(premature) notice of appeal against sentence accordingly appears to have also beendirected to an appeal against conviction.[14] Miss Bell appeared for sentencing in the District Court on 30 November 2021.In his sentencing notes, Judge Rollo described Miss Bell's communications to thevictims of the harassment charges as "a barrage of increasingly aggressive emails,particularly with one of the victims, then worrisome and sinister anonymous emailswhich implied threats to those officers and their families' safety and wellbeing."10[15] Prior to sentencing, Miss Bell had written apology letters to the victims.11 TheJudge accepted Mr Rayner's submission that the letters – in which Miss Belldemonstrated an awareness of the legitimate concern the victims would have had fortheir own safety — were "the key" to the sentencing outcome.12 As noted, Miss Bellwas directed to come up for sentencing if called upon within a period of 12 months,and ordered to pay court costs and emotional harm reparations totalling $1,390.1310 Sentencing notes, above n 4, at [5].11 Miss Bell now says that Mr Rayner forced her to write the letters.12 Sentencing notes, above n 4, at [9].13 At [21]–[23].[16] Following Miss Bell filing her notices of appeal in the High Court, theHigh Court Registry advised the parties that the appeal would be heard at theHigh Court at Dunedin on 24 June 2022.[17] It appears that Miss Bell anticipated being represented by counsel at the appealhearing, corresponding with Registry staff about Mr Rayner's contact details.Documents provided by Miss Bell to the Registry also included confirmation fromMr Rayner that a legal aid grant for the appeal had been successful, although limitedto a report to be filed by him on the merits of the appeal.[18] On 1 June 2022, High Court Registry staff emailed the parties reminding themof the forthcoming appeal hearing and the timeframe for filing submissions.Miss Bell's submissions were to be filed no later than 15 working days before thehearing and thus on or before 2 June 2022.14[19] The Registry's communication elicited a response from Mr Rayner, whoconfirmed that as part of a requirement of an interim grant of legal aid, he had reportedto Legal Aid Services on the merits of the appeal. Mr Rayner advised that Miss Bellhad subsequently contacted Legal Aid Services and made a complaint about him.He advised the Registry that he could therefore not take matters concerning the appealany further. Mr Rayner noted that he was not aware whether Miss Bell had beenassigned new counsel and provided the Registry with what he understood to beMiss Bell's current contact details.[20] Communications directly between Miss Bell and High Court Registry stafffollowed. Miss Bell provided the Registry with various documents andcommunications she had had with Legal Aid Services, and on 2 June 2022, advisedthe Registry that she was still awaiting a response from Legal Aid Services about eithernew counsel being assigned for the appeal or her application for legal aid beingdeclined. Separately, Registry staff received confirmation from Legal Aid Services on3 June 2022 that the proposed reassignment was still under assessment. It also appearsfrom materials filed by Miss Bell that by late May 2022, she had separately contactedat least 22 lawyers and law firms seeking assistance in representing her on the appeal.14 Criminal Procedure Rules 2012, r 8.16(1).Only nine had responded and none were willing or available to represent Miss Bell.On 12 June 2022, Miss Bell emailed the Registry noting that she had still not heardfrom Legal Aid Services and requesting "more time, please".[21] Registry staff brought these developments to Dunningham J's attention,proposing that the appeal be adjourned to the next available date in Dunedin,17 October 2022. On 14 June 2022, the Crown confirmed that it did not oppose anadjournment. Later that day, Dunningham J issued a minute stating:In order to allow the appellant further time to obtain new counsel, whetherthrough legal aid or otherwise, the appeal scheduled for 27 June 2022 isadjourned to be heard on 17 October 2022 at 2.15pm.[22] On 8 August 2022, the High Court Registry emailed the parties remindingthem of the 17 October 2022 hearing date, and the requirement for Miss Bell to filewritten submissions in support of the appeal no later than 15 working days before thehearing (namely on or before 23 September 2022).[23] Miss Bell continued to correspond with High Court Registry staff in the leadup to the October 2022 hearing, including in relation to her ongoing efforts to securelegal aid funding or private representation. On 14 October 2022, the Registry emailedMiss Bell reminding her of the hearing on 17 October 2022. That elicited a telephonecall from Miss Bell, in which she was advised she would be required to appear on17 October 2022 despite not being represented by counsel.[24] On 16 October 2022, Miss Bell sent another email to the Registry providingmore information about her attempts to secure representation for the appeal.[25] Miss Bell did not file written submissions in advance of the October 2022hearing. On 17 October 2022, the matter was called before Doogue J. In her minuteissued later that day, the Judge stated:15[3] The appellant is self-represented and wishes to be known as Sarah Bellfor the purposes of this appeal. The appeal grounds, such as the Court is ableto glean, are:(a) the trial did not end truthfully;15 Bell v Police HC Dunedin, CRI-2021-412-50, 17 October 2022.(b) there is fresh evidence that was not available at the time of thetrial; and(c) the Judge came to conclusions that were not reasonable on thefacts.[4] The respondent opposes the appeal.[5] Sarah Bell has been unable to retain the services of a lawyer. It seemsa lawyer (John Rayner) whose services she did manage to retain at an earliertime advised Legal Aid Services there was no merit in Sarah Bell's appeal.Mr Rayner is no longer prepared to act for Sarah Bell.[6] Since then I am satisfied that Sarah Bell has actively been trying toengage the services of another lawyer. Sarah Bell informed the Court that shehas had to look at obtaining the services of a lawyer from another centre as itappears no Dunedin-based lawyer wishes to act in this matter. Sarah Bell hasbeen in contact with an Auckland-based lawyer over the last 72 hours and it ishoped that lawyer will be able to take instructions and file the necessarysubmissions in support of the appeal.[7] Given the nature of the case and the current deficits in compliance withthe requisite rules pertaining to criminal appeals in this Court, I invited CrownCounsel, Mr Bates, to address me on whether or not this appeal should bestruck out on the ground that it has not been prosecuted expeditiously.[8] Mr Bates submitted that in his view fairness and the need to be seen tobe fair meant the appeal should be adjourned today, as it is the first call of thematter and Sarah Bell did appear in person. However, he submitted it shouldbe made very clear that only one more opportunity will be made available forSarah Bell to retain a lawyer and appear at the next call either with them or, inthe absence of a lawyer, to proceed to argue the appeal.[9] Given that Sarah Bell has had since June to retain a lawyer, I considerone more month is long enough for that to occur and for either that lawyer tofile the requisite submissions or for Sarah Bell to do that in the event she isunable to retain a lawyer's services.[10] I have advised Sarah Bell today that unless submissions are filed withinthat period of time the appeal be struck out for want of prosecution.[11] The appeal is to be adjourned to a date no earlier than one month hence.[26] Based on [9] of Doogue J's minute, Miss Bell was to file her submissionswithin one month of 17 October 2022, and accordingly no later than around17 November 2022.1616 It would have been preferable for the minute to specify an actual date by which Miss Bell was tofile her submissions. Nevertheless, the minute was clear as to the need to do so well in advanceof the appeal hearing and the consequences of not doing so.[27] The Registry subsequently advised the parties that the appeal would be heardon 14 December 2022.[28] On 17 November 2022, Registry staff emailed Miss Bell reminding her of herobligation under the Criminal Procedure Rules to file written submissions in supportof the appeal no later than 15 working days before the hearing. This would haverequired Miss Bell's submissions to be filed on or before 23 November 2022, whichwas later than directed by Doogue J. Given the Registry's advice, it was notunreasonable for Miss Bell to proceed on the basis that the time period for filingsubmissions has been extended to 23 November 2022.[29] Miss Bell did not file submissions on or before 23 November 2022, or at anytime prior to the 14 December 2022 hearing.[30] On 29 November 2022, Miss Bell corresponded again with the Registry,updating staff on her continuing attempts to secure a lawyer. Miss Bell's email stated,among other things:For quite some time, I have had every door of communication close on me,leaving me with no way forward with this. No one wants to help me with this,and I have angered quite a few people in the process. No one wants to act asan advocate for me on this matter.[31] On 1 December 2022, the Registry advised the parties of the followingdirections from Dunningham J:This appeal is to be called on 14th December 2022.The appellant is [reminded] that pursuant to [s 338] of the Criminal Procedure[Act] 2011, the appeal will be dismissed at that callover if submissions havenot been filed in advance of the date, as was notified in [Doogue J's] minuteof 17th October 2022.[32] On 12 December 2022, Miss Bell corresponded with counsel appearing for theCrown on the appeal, copying in High Court Registry staff. Miss Bell stated:Since October 2022, when I actually met you, I have taken advice by thehigh court staff, and I have been engaging with a lawyer, who I have beenspeaking with, in Auckland. When you left, I crossed paths with and had aquick chat to a woman, whose eyeliner was perfect. Her words were "starttoday", which I did.When Noel represented me, he wrote to me, please see attached, saying thehigh court had asked how things were progressing. Noel also wrote to mesaying the high court [preferred] that I have a lawyer to act for me.I wrote to legal aid, once again, this morning, for the fifth time, over all, askingthem to please reconsider my reconsideration application to be assigned alawyer at random, I sent the same attachment that I have attached for you here.I explained to legal aid in an email that the high court have said they aresatisfied that I have had difficulty in retaining a lawyer to actually representthis matter for me. Further to that, the high court have allowed the appealapplication to proceed on the basis of fairness and the need to be seen to befair. I am yet to hear back from legal aid, still. The minute I got on 17 October2022 is correct; it appears that no Dunedin based lawyer wishes to act in thismatter. Good news, for the high court, includes, that one lawyer is interestedin the matter, and he is based in Auckland, and has a genuine interest. He toldme, he has questions that the high court would be interested in hearing.He also said that the work needed, involved quite a few hours of looking intothe microscopic finer detail that, he believes, the district court have missed.My lawyer friend has gone through a good chunk of what I got fromRebecca Hill; all the while, sick. The lawyer I have been speaking to, gottento know, and have become quite respectfully fond of, is sick with covid-19.Until he is better, and in a better state, there is simply nothing more I can do.I have achieved what the high court wanted; I have caught someone'sattention. It's just that, [he is] sick, for the time being, with covid-19.Robin, the minute on 17 October 2022 is correct, the reasons I have filed theappeal application, all three of them, are, the trial did not end truthfully, thereis fresh evidence that was not available at the time of the trial, and the judgecame to conclusions that were not reasonable on the facts. I would never havefiled the appeal application if the trial concluded truthfully, and if all evidencewas available at the time of the trial, and the judge came to conclusions thatwere reasonable on the facts. It would have been fair.I spoke to my Auckland lawyer friend this morning, and he has said to me thatI have done what the high court asked me to do, so for [the] time being, hesaid, there is simply nothing more I am able to do. He has told me not topanic, in the meantime.[33] On 14 December 2022, the matter was called before Dunningham J.17 TheJudge issued a minute the same day stating:18[2] The appeal was first scheduled to be heard on 17 October 2022.However, [Miss] Bell had not filed submissions, nor had she managed toarrange the services of a lawyer. Doogue J issued a minute adjourning theappeal to allow [Miss] Bell to have time to retain a lawyer or, in the absenceof a lawyer, to prepare to argue the appeal herself. She directed [Miss] Bellto file submissions in advance of the rescheduled hearing date. She warnedthat if that direction was not complied with, the appeal would be dismissed.17 It is not clear from the papers whether Miss Bell appeared in person at the hearing.18 Bell v R, above n 5.[3] The appeal was rescheduled for hearing today 14 December 2022, andon 1 December 2022, I issued a further minute warning [Miss] Bell that ifsubmissions were not filed in advance of that date, then pursuant to s 338 ofthe Criminal Procedure Act 2011, her appeal would be dismissed. Nosubmissions were filed in advance of today, nor was an explanation for thatomission filed in advance of today. Accordingly, the appeal is dismissed.[34] We pause to note two points:(a) First, Dunningham J's reference to the appeal being first scheduled tobe heard on 17 October 2022 is not correct, given the appeal was firstscheduled to be heard on 24 June 2022.(b) Second, it is not clear whether Dunningham J was aware of Miss Bell'semail to the High Court Registry on 12 December 2022 (see aboveat [32]). That email did not, however, address why Miss Bell had nottaken steps herself to prepare and file submissions in support of theappeal, irrespective of her legal representation.[35] Following the appeal being dismissed, Miss Bell filed a notice of applicationfor leave to appeal with this Court. Under the heading "Is any lawyer now acting foryou?", Miss Bell wrote "Not yet. I keep asking legal aid to please assign me tosomeone. Advise to date is to keep asking legal aid and assign me to someone." Inresponse to the question "Why should the court give you leave to appeal?", Miss Bellwrote:There's a great deal of importance with this application to the Court of Appeal.I have information only a lawyer is able to handle because there has been aterrible miscarriage of justice. I have told the courts already things have beensaid that simply are not true. A judgment has been made that is, also, simplynot true. There is, also, information that [was not] available at the trial, thatcourt will be interested in. The Ministry of justice have provided their supportfor this matter too[.]Legal principlesDismissal of an appeal for procedural non-compliance[36] The power to dismiss an appeal for procedural non-compliance is contained ins 338 of the Act. It 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 otherprocedural orders fixed for the appeal.(2) Before dismissing an appeal under subsection (1), the appeal court mustgive the appellant 10 working days' notice of its intention to dismiss theappeal.(3) The appeal court must not dismiss an appeal under subsection (1) if theappellant, after having been given notice under subsection (2), rectifiesthe non-compliance within the notice period given by the court.(4) A reference in any enactment other than this section to the abandonmentof an appeal under this Act must, unless the context otherwise requires,be read as including a reference to a dismissal under subsection (1).(5) In this section, appeal includes an application for leave to appeal.[37] Section 338 accordingly applies if three pre-requisites are met:(a) first, the appellant has failed to comply with a procedural order ortimetable;19(b) second, the appeal court gave the appellant 10 working days' notice ofits intention to dismiss the appeal;20 and(c) third, the appellant failed to rectify the non-compliance within thatperiod.2119 Section 338(1).20 Section 338(2).21 Section 338(3).[38] In Mitchell v Police, this Court explained that in circumstances where the threepre-requisites of s 338 are met:22[29] The appeal court then has a discretion to dismiss the appeal for non-compliance under s 338. The discretion is guided by the interests of justice,balancing the right of appeal affirmed by s 25(h) of the New Zealand Bill ofRights Act 1990 (NZBORA) with Parliament's intention when enacting s 338.In other words, the right to appeal is not untrammelled. Finality, particularlyfor victims, is also important.[30] These principles were discussed by this Court in Rakuraku v R. Inconsidering the limits of the right affirmed by s 25(h) of the NZBORA, thisCourt observed that the power to dismiss an appeal for non-compliancerecognises that there are countervailing considerations relevant to the interestsof justice including the Crown's legitimate expectation that it should beprovided with adequate particulars of the grounds of appeal to enable a properresponse and the public interest in the finality of court proceedings. Theorderly and efficient administration of the court is also a relevantconsideration although an appeal would not normally be dismissed unders 338 unless there had been serious, repeated and continuing non-compliancewith the court's directions.[39] The Court also emphasised that s 338 requires a separate judicial considerationfollowing the act or acts of non-compliance.23 Finally, the Court addressed the correctprocess to be followed by an appeal court when making the final decision to dismissan appeal for non-compliance, and in particular, whether a further hearing for thatpurpose is required. The Court did not consider that to be necessary, stating:24[42] In our view, given the scheme and purpose of the legislation asdiscussed in Rakuraku a further hearing is not necessarily required but thatoption would be available to a court if considered appropriate in thecircumstances.[43] As already mentioned, what is however required is a separate judicialdetermination. The Judge should consider the extent of the non-complianceand any other material relevant to the exercise of the Court's discretion unders 338 including any reasons for non-compliance. The decision should then berecorded in the form of a brief judgment with reasons.22 Mitchell v Police [2019] NZCA 497 (footnotes omitted).23 At [41].24 At [42]–[43].Appeal against dismissal of appeal for procedural non-compliance[40] Section 339 of the Act provides a right of appeal (with leave) against a decisionto dismiss an appeal under s 338:339 Appeal against dismissal under section 338(1) An appellant may, with the leave of the relevant appeal court, appeal tothat 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 an appealunder that section by the District Court; or(b) the Court of Appeal, if the appeal is against the dismissal of anappeal 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 a noticeof application for leave to appeal in the relevant appeal court.(4) A notice of application for leave to appeal must be filed within20 working days after the date of the dismissal appealed against.(5) The relevant appeal court may, at any time, extend the time allowed forfiling 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 court appealedfrom with any directions it considers appropriate.(7) The determination of an appeal by the relevant appeal court under thissection is final.[41] The proper approach to an appeal pursuant to s 339 was also addressed inMitchell. This Court summarised the relevant principles as follows:25(a) It is for the applicant to establish that leave to appeal should begranted.(b) Leave to appeal under s 339 involves a challenge to a discretionarydecision (except when the applicant can show that one of the threestatutory pre-requisites was absent). Thus, leave to appeal requires25 At [32] (footnotes omitted).the 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.(c) It is not enough for an applicant to simply establish that the dismissedappeal may have merit. It is the decision to dismiss for non-compliance, and not the conviction and/or sentence, which ischallenged.(d) Therefore, to obtain leave, the applicant must establish an arguablecase that the discretion under s 338 was wrongly exercised.[42] It is helpful to elaborate on the point made at (c) above. As this Court observedin Rakuraku v R, prior to the introduction of the Act an appeal court had no power todismiss an appeal without consideration of the merits.26 Section 338 of the Actchanges that approach, in that an appeal can be dismissed merely for proceduralnon-compliance. That said, we would expect that in most cases where a court isconsidering dismissing an appeal for procedural non-compliance, it will undertake aprovisional or high-level assessment of the merits of the proposed appeal. Forexample, in Rakuraku, and despite observing that s 338 empowers a court to dismissan appeal without considering the merits, this Court nevertheless endeavoured to makesome assessment of the prospects of success of the appeal.27 We accept however, thatas in this case, the procedural non-compliance may make an assessment of the merits,even on a preliminary basis, difficult.SubmissionsMiss Bell's submissions[43] Miss Bell filed a four-page document which we take to be her submissions insupport of the application for leave to appeal (and appeal).[44] Miss Bell explains the difficulties she faced in representing herself in theDistrict Court trial and states that she did as she was asked to do by the High Court,namely to take steps to secure representation by a lawyer. Miss Bell further states:I have made a promise to court that the appeal is necessary to be heard. A highcourt judge believed that the trial did not end truthfully, there is information26 Rakuraku v R [2016] NZCA 351 at [25], referring to Petryszick v R [2010] NZSC 105, [2011] 1NZLR 153.27 At [30].that was not available at the time of the trial, and the district court came toconclusions that were not reasonable on the facts.[45] Miss Bell submits that to be granted the opportunity to argue the appeal "wouldbe beneficial in the names of fairness and the right to be heard". She records that shehas more recently received legal advice from two lawyers, though there is nosuggestion they are prepared to act for Miss Bell on the proposed appeal. Miss Bellreiterates the difficulties in representing herself in the District Court and the view that"the proper legal processes of investigation, as noted by sources, were not actuallycarried out properly or correctly. Court and I appear to have conflicting information."One example of this is said to be differences between the formal statements theDistrict Court had and those Miss Bell had. Miss Bell also relies on a communicationbetween herself and GS (one of the victims on the harassment charges) on1 December 2022 (in what Miss Bell says was GS's "professional capacity"), aboutwhat Miss Bell describes as "a family harm scenario I had tended to".The respondent's submissions[46] Counsel for the respondent, Mr Cunningham, submits the three prerequisitesto dismissing an appeal pursuant to s 338 were met and Dunningham J therefore hadjurisdiction to dismiss the appeal:(a) Miss Bell failed to comply with Doogue J's procedural order to filesubmissions within a month of 17 October 2022.(b) After the one month expired, the High Court gave Miss Bell more time.Dunningham J reminded Miss Bell she needed to file submissions orelse have the appeal dismissed ahead of the 14 December 2022 fixture.(c) Miss Bell did not file submissions in time, and no submissions haveever been filed.[47] Mr Cunningham further submits that Dunningham J did not err in exercisingher discretion to dismiss the appeal, in that Miss Bell was given multiple extensionsof time, totalling approximately five months, to comply with procedural directions.Mr Cunningham emphasises that Miss Bell was directed by two separate courtminutes of the need to file submissions and advised of the consequences of not doingso, but has not explained on the current application why the decision to dismiss theappeal in those circumstances was wrong. Mr Cunningham further submits thatMiss Bell was plainly capable of filing submissions, as she is able to write clearly andlogically when minded to do so. Mr Cunningham says that nothing in the voluminousmaterials filed by Miss Bell in support of the application for leave, which tend torepeat matters covered at trial, answers these points.[48] In terms of the merits of the proposed appeal, Mr Cunningham submits thatthere is no basis for the suggestion the Judge's verdicts were unreasonable, noting thatthe verdicts decision carefully and fully traversed the evidence given at trial. Further,Mr Cunningham notes that Miss Bell appeared to acknowledge her guilt in the apologyletters provided to the Judge ahead of sentencing, one of which stated, " I am deeplysorry for what you have dealt with, and the impact emails, of a violent nature, can haveon a family".Discussion[49] We are not satisfied that leave to appeal ought to be granted. We have reachedthis conclusion for the following reasons.[50] First, we are satisfied the three statutory prerequisites to dismissing the appealunder s 338 were met. Miss Bell failed to comply with the requirement to file writtensubmissions in advance of the original appeal hearing in June 2022. This led to theadjournment of the hearing until October 2022. Miss Bell failed to comply with therequirement to file written submissions in advance of the October 2022 hearing. Thisled to the adjournment of the hearing until December 2022. We appreciate that duringthis time Miss Bell was trying to obtain the services of a lawyer to assist in handlingher appeal. We do not consider those procedural failures alone would have warrantedthe dismissal of the appeal.[51] However, on 17 October 2022, Miss Bell was given a further opportunity toprepare and file written submissions on the appeal. They were to be filed within onemonth of Doogue J's minute of 17 October 2022. Miss Bell did not comply with thatdirection. Nor did she comply with the Registry direction of 17 November 2022 whicheffectively gave Miss Bell further time to file submissions.[52] Turning to the requirement to give an appellant 10 working days' notice of theappeal court's intention to dismiss the appeal, excluding 14 December 2022 itself,Dunningham J's minute of 1 December 2022 was issued only nine working days priorto the appeal being dismissed. However, this must be viewed in the context ofDoogue J's earlier direction of 17 October 2022 that if Miss Bell did not file hersubmissions within one month, the appeal would be struck out for want of prosecution.While Doogue J's minute did not refer to s 338, Miss Bell had significantly more than10 working days' notice of the High Court's intention to dismiss the appeal in the eventsubmissions were not filed.[53] Finally, there is no dispute that Miss Bell did not remedy the procedural defaultby filing submissions prior to 14 December 2022.[54] Dunningham J accordingly had jurisdiction to dismiss Miss Bell's appeal.While the Judge's reasons for doing so are brief (and do not reflect therecommendation in Mitchell that a short judgment be prepared),28 the basis for herreasoning is clear enough and we do not consider she erred in exercising her discretion.The combined effect of Miss Bell's procedural defaults referred to at [50]–[51] abovewere serious and ongoing — they led to the abandonment of two substantive fixtures,and it is inevitable that the 14 December 2022 fixture would also have had to beadjourned even if the appeal had not been dismissed. It would have been quite unfairto have required the respondent to participate in the appeal without any clarity as tothe grounds of Miss Bell's appeal or the benefit of any written submissions in supportof it. In the context of successive abandonments of scarce court hearing time, theorderly and efficient administration of the High Court is also relevant to thediscretionary exercise.[55] We agree with the Judge that there was no satisfactory explanation providedby Miss Bell for her ongoing procedural default. As noted, it is not clear if the Judgewas provided with copies of all Miss Bell's communications with the Registry,28 Mitchell v Police, above n 22, at [43].including her email of 12 December 2022. Nevertheless, the Judge was plainly awarethat Miss Bell remained unrepresented, and the difficulties in obtaining representationdid not excuse the ongoing failure to file written submissions in any event. Miss Bellwas also on clear notice from two High Court judges of the need to file writtensubmissions prior to the December 2022 hearing irrespective of her representation,and of the consequences of not doing so.[56] The Judge did not consider the merits of Miss Bell's appeal. For the reasonsexplained earlier, that itself does not amount to error. We have neverthelessendeavoured to assess, at a high level, the prospects of success of the appeal.[57] Despite the further information Miss Bell has filed with this Court, it remainsdifficult to discern the basis upon which she says the Judge was wrong to reach theverdicts he did. The Judge's verdicts decision contains a detailed analysis of theevidence given at trial. A key issue for determination was whether Miss Bell sent theemails in question. Miss Bell denied that she did, but the Judge dismissed her evidenceas untruthful and unreliable.29 An appeal court is hesitant to interfere with a trialjudge's assessment of credibility.30 Further, the Judge accepted the prosecution'sexpert evidence as to the authorship of the emails,31 which traced the emails back to alaptop found in Miss Bell's possession at the time the search warrant was executed.Miss Bell suggested at trial that it was possible that, unbeknownst to her, some otherperson had hacked the laptop to send the emails to the complainants of the harassmentcharges. The Judge found that there was no evidential foundation for such apossibility.32[58] We have also considered the further matters raised by Miss Bell and the variousdocuments she has filed. It is unclear how much of that material relates to theapplication for leave, or to the appeal. We apprehend, however, at least three matterswhich Miss Bell would want to advance before the High Court were her applicationfor leave to appeal and appeal to this Court to be granted.29 Verdicts decision, above n 1, at [124].30 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [31].31 Given by a New Zealand Police digital forensics analyst.32 Verdicts decision, above n 1, at [80].[59] First, Miss Bell says that some of the prosecution's formal statements areuntruthful. She refers to GS's formal statement in which he said "I spoke with my[diversity liaison officer] at the time about [Miss Bell] and I was informed to treadcarefully as [Miss Bell] did not have a good reputation with the LGBTQ [community]and was typically going against what the community was trying to achieve". Asevidence that this statement is untrue, Miss Bell refers to:(a) an email from the team leader of the Criminal Records Unit of theMinistry of Justice, confirming that Miss Bell had contacted theCriminal Records Unit on several occasions from September 2020about the limited gender options on the "Request your own criminalconviction history check" form, and that in April 2021, the Ministryhad added a gender option to the form; and(b) a letter from the Ministry of Social Development | Te ManatūWhakahiato Ora dated 15 August 2019, thanking Miss Bell for"advocating for changes to our systems".[60] These matters do not mean GS was untruthful in his formal statement. Whathe recorded may well have been what he was told by his diversity liaison officer. Inaddition, Miss Bell had every opportunity to challenge GS's evidence on this issue attrial. The Judge also referred to evidence that Miss Bell had interacted successfullywith other government departments about gender identity and diversity in any event.33[61] Miss Bell also appears to take issue with the formal statement of a senior policeinspector in which she suggests that from a certain point in 2020, Miss Bell did notcontinue to engage with a police sergeant who had been nominated as a single pointof contact for her. We cannot see how this is relevant to the issues that arose fordetermination at trial, and again Miss Bell was able to cross-examine the witness onthis point in any event.[62] The second matter Miss Bell raises is that the prosecution computer analysisevidence that attributed the emails to her was not tested at trial by a defence expert.33 At [30].While that is correct, Miss Bell had the opportunity to call evidence on that topic, andnothing has been put before us, or the High Court, to suggest that the prosecutionexpert evidence might be wrong. Further, in the apology letters written to the victimsfor the purposes of sentencing, Miss Bell appears to acknowledge responsibility forsending the emails.[63] Third, Miss Bell refers to a communication said to have taken place betweenher and GS on 1 December 2022.34 We presume she refers to this (and othercommunications between herself and the Police after the trial concluded, whichMiss Bell characterises as being "professional" and "work related") to call intoquestion whether she was the author of the emails that were the subject of theharassment charges. While communications such as these were not available at thetime of trial, they are not cogent, in terms of demonstrating that Miss Bell could nothave been the author of the earlier emails.[64] Finally, Miss Bell states in her submissions that a High Court Judge has agreedthat the District Court trial "did not end truthfully".35 This appears to be a referenceto Doogue J's minute of 17 October 2022. That is not a correct characterisation of theJudge's minute. Doogue J was simply recording Miss Bell's position that the trial hadended untruthfully.[65] Standing back, and assessing the matter as best we can in the circumstances,we do not discern any real merit to Miss Bell's proposed appeal.[66] We are therefore satisfied that Dunningham J did not err in dismissing theappeal pursuant to s 338(1) of the Act.Result[67] The application for leave to appeal pursuant to s 339 of the Criminal ProcedureAct 2011 is declined.34 See above at [45].35 See above at [45].Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent