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The Queen v Butler [2007] NZCA 250 (20 June 2007)

Last Updated: 27 June 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA42/07
[2007] NZCA 250

THE QUEEN

v

SIMON JOHN HAYES BUTLER

Hearing: 20 June 2007

Court: Hammond, Williams and Wild JJ

Counsel: No appearance for Appellant
K B F Hastie for Crown

Judgment: 20 June 2007 at 10.05 am

JUDGMENT OF THE COURT

The appeal is dismissed for want of prosecution.

REASONS OF THE COURT
(Given by Hammond J)

[1] On 1 December 2006 Mr Butler was convicted by a jury in the District Court at Hamilton on one count of assault and one count of assault using a knife as a weapon. On 19 January 2007 he was sentenced to community work.
[2] On 30 January 2007 Mr Butler lodged with this Court a Notice of Appeal dated 25 January 2007. The notice gave as the ground of appeal that "the verdict was against the weight of evidence". It indicated that submissions would be filed by "the appellant in person".
[3] Nothing further has been forthcoming from the appellant. He has taken no steps at all.
[4] The appellant was advised by the Registrar of this fixture by a letter dated 2 March 2007. He has not appeared today.
[5] The first point to note is that the Notice of Appeal was out of time under s 388 of the Crimes Act 1961. No application for leave to extend the time for appealing has been filed.
[6] The second point is that the appellant has done nothing at all to prosecute the appeal. This creates a difficulty for the Court – if the appeal is not abandoned it remains awkwardly on the Court of Appeal’s books.
[7] The third point is that the appeal has no apparent prospect of success. The particular incident arose out of a man-to-man fight. Both the complainant and Mr Butler gave evidence before the jury, which obviously preferred the complainant’s evidence. The possibilities of the appeal succeeding were, at best, remote.
[8] A fourth point is that we were advised by Ms Hastie that since the trial out of which this appeal arises, the complainant has also been convicted of assault in relation to the same incident, and discharged. It could be that Mr Butler feels that at least a measure of justice has thereby been done, and perhaps that is why he did not communicate further with the Court.
[9] In any event on the application of the Crown, which we think is entirely well founded, the appeal is dismissed for want of prosecution.

Solicitors:
Crown Law Office, Wellington

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[1]	On 1 December 2006 Mr Butler was convicted by a jury in the District Court at Hamilton on one count of assault and one count of assault using a knife as a weapon. On 19 January 2007 he was sentenced to community work.
[2]	On 30 January 2007 Mr Butler lodged with this Court a Notice of Appeal dated 25 January 2007. The notice gave as the ground of appeal that "the verdict was against the weight of evidence". It indicated that submissions would be filed by "the appellant in person".
[3]	Nothing further has been forthcoming from the appellant. He has taken no steps at all.
[4]	The appellant was advised by the Registrar of this fixture by a letter dated 2 March 2007. He has not appeared today.
[5]	The first point to note is that the Notice of Appeal was out of time under s 388 of the Crimes Act 1961. No application for leave to extend the time for appealing has been filed.
[6]	The second point is that the appellant has done nothing at all to prosecute the appeal. This creates a difficulty for the Court – if the appeal is not abandoned it remains awkwardly on the Court of Appeal’s books.
[7]	The third point is that the appeal has no apparent prospect of success. The particular incident arose out of a man-to-man fight. Both the complainant and Mr Butler gave evidence before the jury, which obviously preferred the complainant’s evidence. The possibilities of the appeal succeeding were, at best, remote.
[8]	A fourth point is that we were advised by Ms Hastie that since the trial out of which this appeal arises, the complainant has also been convicted of assault in relation to the same incident, and discharged. It could be that Mr Butler feels that at least a measure of justice has thereby been done, and perhaps that is why he did not communicate further with the Court.
[9]	In any event on the application of the Crown, which we think is entirely well founded, the appeal is dismissed for want of prosecution.