New Zealand Case Law: Decisions & Judgments

Topic

Notice of abandonment

Legal area

Court

14 Dec 2022

TAYLOR v R [2022] NZCA 626

Citation

[2022] NZCA 626
Court

Court of Appeal

Notice of abandonment was set aside because the appellant's abandonment was linked to unsatisfactory conduct by the solicitor who handled the appeal steps; however, after considering the merits the Court dismissed the appeal because the appellant failed to establish a miscarriage of justice — trial counsel's tactical decisions (relying on a comprehensive police video interview and concerns about calling the appellant) were reasonable, there was no demonstrable prejudice from not calling the brother and his later affidavit was neither sufficiently credible nor cogent as fresh evidence, and the…
29 Sept 2022

FLETCHER v R [2022] NZCA 456

Citation

[2022] NZCA 456
Court

Court of Appeal

The Court held the abandonment was not informed because trial counsel gave incorrect legal advice about the value of a s 27 report and the prospects of appeal, and exceptional circumstances existed because relevant personal background was not properly considered at sentence; a provisional assessment showed the appeal had some prospects of success, so leave to withdraw the notice of abandonment was granted.
11 May 2022

WARREN v R [2022] NZCA 179

Citation

[2022] NZCA 179
Court

Court of Appeal

The application to withdraw the notice of abandonment was declined because the 2018 abandonment was a deliberate and informed decision (not a nullity) and no exceptional circumstances existed to justify withdrawal; there was no substantial prospect of miscarriage of justice on either conviction (jury directions and self‑defence direction were adequate) or sentence (preventive detention under s 87 was open given risk and lack of engagement); NZ law applies to the appellant, so leave is refused.
28 Apr 2022

DEMARCO v R [2022] NZCA 145

Citation

[2022] NZCA 145
Court

Court of Appeal

Leave to withdraw the notice of abandonment was declined because the Court found the abandonment was both deliberate and informed, motivated by a strategic aim to secure parole which would undermine the integrity of the parole process and public interest in finality, no exceptional circumstances existed to justify setting it aside, and the proposed grounds of appeal did not disclose a real risk of miscarriage.
25 Mar 2022

L (CA326/2018) v R [2022] NZCA 81

Citation

[2022] NZCA 81
Court

Court of Appeal

Application to withdraw the notice of abandonment was declined because the applicant made a deliberate and informed abandonment, no exceptional circumstances justified setting it aside, the MPI was lawfully imposed only on the 15-year determinate sentence, s 84(4) requires aggregation of non-parole periods giving a lawful total of 10 years 4 months, and s 86(4) limits do not apply to statutory non-parole periods for sentences of two years or less.
15 Dec 2021

HITCHCOCK v MURPHY [2021] NZCA 689

Citation

[2021] NZCA 689
Court

Court of Appeal

Application to set aside notice of abandonment was dismissed because the evidence showed the applicant had agreed to abandon the appeal, the caveat had lapsed and could not be reinstated making any appeal futile, and the requisite compelling or exceptional circumstances to displace finality were absent.
9 Jun 2021

ARAMOANA v R [2021] NZCA 241

Citation

[2021] NZCA 241
Court

Court of Appeal

There was no valid abandonment of the sentence appeal because the filed notice abandoned only the conviction appeal and the later informal email confirmations did not satisfy r35(2); accordingly the application to withdraw an abandonment was unnecessary and declined. The Court exercised its discretion to grant an extension of time for the sentence appeal and granted leave to adduce further evidence limited to the filed s27 report.
28 Feb 2019

GLW GROUP LTD (IN LIQ) v LEPIONKA & CO INVESTMENTS LTD [2019] NZCA 24

Citation

[2019] NZCA 24
Court

Court of Appeal

A complying notice of abandonment under r 44 terminates the appeal; a non-party cannot become an appellant merely by filing a memorandum after abandonment and the court will not add appellants to raise issues that were not before the High Court; accordingly the applications for joinder are declined.
21 Nov 2017

HARDING V R [2017] NZCA 538

Citation

[2017] NZCA 538
Court

Court of Appeal

The notice of abandonment was a deliberate and informed decision (signed, witnessed and filed by counsel) and the applicant did not establish exceptional circumstances to reopen the appeal; the sentencing uplift for previous convictions was lawful and did not produce a miscarriage of justice given the relevance and seriousness of prior violent convictions, so leave to withdraw the abandonment was declined.
4 Jun 2014

AVONSIDE HOLDINGS LIMITED V SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED CA520/2013 [2014] NZCA 225

Citation

[2014] NZCA 225
Court

Court of Appeal

Because the delay was short (15 days), there was no prejudice to the respondent, the case on appeal had been filed and the delay resulted from administrative oversight, the Court granted the extension of time, set aside the notice of abandonment and treated the case as filed in accordance with the rules.