New Zealand Case Law: Decisions & Judgments

Topic

Section 338 criminal procedure act 2011

Legal area

Court

11 Jul 2023

BELL v NEW ZEALAND POLICE [2023] NZCA 291

Citation

[2023] NZCA 291
Court

Court of Appeal

Leave to appeal was declined because the statutory pre-requisites of s 338 were satisfied, the applicant repeatedly failed to comply with clear procedural directions despite multiple extensions and warnings, she did not rectify the default within the notice period, there was no satisfactory explanation for ongoing non-compliance, and no arguable merit was demonstrated to show the Judge erred in exercising discretion to dismiss.
30 Nov 2022

JAVED v R [2022] NZCA 587

Citation

[2022] NZCA 587
Court

Court of Appeal

The appeal was dismissed because the appellant failed to comply with a procedural direction to file written submissions, the Court complied with s 338 by giving 10 working days' notice and making reasonable attempts at service, and the appeal lacked an arguable prospect of success on its nominated grounds, so dismissal under s 338 was an appropriate exercise of discretion.
30 Aug 2022

SAVAGE v R [2022] NZCA 406

Citation

[2022] NZCA 406
Court

Court of Appeal

All statutory prerequisites of s338 were satisfied (failure to prosecute, adequate notice, failure to rectify) and the Court, exercising its discretion in light of the appellant's inaction over almost two years and the public and victims' interest in finality, properly dismissed the appeal against conviction and sentence.
19 Jul 2018

JOHNSON v NEW ZEALAND POLICE [2018] NZHC 1790

Citation

[2018] NZHC 1790
Court

High Court

Leave to pursue the out‑of‑time appeal was granted in the interests of justice, but because the appellant had repeatedly failed to provide necessary instructions and a waiver to consult former counsel and thereby risked abuse of process, the Court exercised its powers under s 338 to impose strict deadlines for an affidavit and a written waiver and warned that non‑compliance would lead to dismissal of the appeal without further appearances.
11 Apr 2017

EMMERSON v R [2017] NZCA 101

Citation

[2017] NZCA 101
Court

Court of Appeal

The appeal was dismissed under s 338(1) of the Criminal Procedure Act 2011 because the appellant repeatedly and egregiously failed to comply with multiple court directions to file particularised grounds despite ample opportunities and notice, and because the claimed grounds showed no evident merit; the interests of justice did not require preservation of an abandoned, meritless appeal.

New Zealand Case Law

BELL v NEW ZEALAND POLICE [2023] NZCA 291

JAVED v R [2022] NZCA 587

SAVAGE v R [2022] NZCA 406

JOHNSON v NEW ZEALAND POLICE [2018] NZHC 1790

EMMERSON v R [2017] NZCA 101