Ellis v R [2013] NZCA 185 (30 May 2013)

Last Updated: 20 June 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA720/2011 [2013] NZCA 185
BETWEEN	AARON PATRICK JOHN ELLIS Appellant
AND	THE QUEEN Respondent

Court:	Randerson, Harrison and Stevens JJ
Counsel:	Appellant in person Crown Law Office for Respondent
Judgment: (On the papers)	30 May 2013 at 10.15 am

JUDGMENT OF THE COURT

The appeal is dismissed for non-compliance with procedural orders.
____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] The appellant, Aaron Patrick John Ellis, pleaded guilty in the District Court to a charge of threatening to kill his brother Shayne Ellis contrary to s 306 of the Crimes Act 1961. On 26 September 2011 he was sentenced by Judge McKegg by being convicted and discharged.^[1] The appellant filed an appeal against conviction on 28 October 2011.
[2] As shown by the outline that follows, there has been a lengthy history of noncompliance by the appellant with procedural orders. The issue for the Court is whether this is an appropriate case to exercise the statutory power under s 338 of the Criminal Procedure Act 2011 to dismiss the appeal for non-compliance with procedural orders.

Background

[3] The grounds of appeal included a ground concerning the conduct of the appellant’s counsel and a suggestion that further evidence had become available since the District Court hearing. These grounds resulted in the standard directions being given under r 12A(1) and r 12A(2) and r 12B(1) and r 12B(2) of the Court of Appeal (Criminal) Rules 2001 by minute dated 29 November 2011. The appellant was directed to comply with such directions on or before 3 February 2012.^[2] The directions were not complied with.
[4] The file was referred by the Registry to a Judge for further case management in early October 2012. A follow-up minute was issued on 9 October 2012. By that stage, the appellant had failed for some 10 months to comply with directions. Because he was self-represented a further extended time for compliance with the earlier directions was allowed.^[3] The appellant was told that any failure to comply with the latest directions could result in a final warning being given under s 338 of the Criminal Procedure Act. Again, the directions were not complied with.
[5] Two further minutes were issued giving the appellant procedural directions.^[4] The directions given in these minutes have not been complied with. The final minute of 16 April 2013 contained the following warning:

[4] It is now appropriate for the Court to invoke the power in s 338 of the Criminal Procedure Act 2011. I propose to dismiss the appeal because the appellant has on three occasions failed to comply with procedural orders fixed for the appeal.

[5] Accordingly the appellant is given notice that, unless the appellant rectifies the default and complies with the orders to provide the information required by rr 12A(1) and (2) and rr 12B(1) and (2) of the Court of Appeal (Criminal) Rules no later than 2 May 2013, the appeal will be dismissed pursuant to s 338(1) of the Civil Procedure Act.

[6] Some of the delays may be explained by the fact that the appellant is selfrepresented. For example, following the first minute of 29 November 2011 the appellant sent the following communication to the Registry:

In regards to my Court of Appeal application relating to [other] charges, I am writing to request an extension period subject to Rule 12B of the Court of Appeal Rules. I have spoken to the lawyers that you forwarded me in regards to seeking representation in this matter, and have had no success in finding Counsel that is willing to represent me in this area. I am therefore forced to seek Counsel outside the area and this will take me some time.

[7] The Registry invited counsel for the respondent to comment on the request for extension of time. Crown counsel responded as follows:

We abide by the decision of the Court regarding an extension being given for the filing of the Rule 12B materials. We would request that a fixture date not be given for this matter until all the relevant Rule 12B material has been filed by the appellant who is self represented.

[8] As the appellant was self-represented a generous amount of time was allowed in the minute of 9 October 2012 (until 14 December 2012) to comply with the outstanding procedural orders.
[9] Non-compliance continued and on 5 February 2013 a further minute was issued giving directions to the appellant. It is apparent from the Court file that the appellant received this minute. In an email to the Registry on 5 February 2013 he acknowledged this was the case. The procedural orders given in that minute have not been complied with.
[10] On 4 April 2012 the Registry received a communication from the appellant in which he stated:

The Court has always known that the postal address for service was 19 The Avenue, Levin 5510. ... The email address has always been c/ [e-mail].

[11] The physical address was the same as that given in the notice of appeal dated 20 October 2011.
[12] The final minute of 16 April 2013 repeated the full text of the minute of 5 February 2013. The minute also gave the warning set out at [5] above. The Registry sent the minute to both the postal address and the email address provided by the appellant. The procedural orders set out in the minute of 16 April 2013 have not been complied with.
[13] The Registry has confirmed that copies of each of the four minutes were posted and emailed to the appellant on the day the minute was issued.

The appellant’s position

[14] On 20 May 2013 the appellant telephoned the Registry and claimed that he had not received any of the minutes that had been issued as he was no longer on speaking terms with the woman whose address he had been using. On the same day the appellant sent an email to the Registry:

Hi kymberley i did just read the judgs minut and it says in that if i dident respond 2 may it would be dismissed i do hope is not the case

regards aaron ellis

[15] We note that these communications are at odds with the email confirmation sent from the email address of [e-mail] confirming that the appellant had at the very least received the minute of 5 February 2013.
[16] Between 22 and 23 May 2013 the appellant had further extensive communication with the Registry. Much of it related to text messages and emails about the address for service he had provided, as well as the email address where he could be contacted.

Applicable statutory provision

[17] The power of an appeal court to dismiss an appeal for non-compliance with procedural orders is set out in s 338(1) of the Criminal Procedure Act. The same section makes it plain that appropriate notice must be given to an appellant before an appeal is so dismissed. Subsections 338(2) and (3) provide:

(2) Before dismissing an appeal under subsection (1), the appeal court must give the appellant 10 working days’ notice of its intention to dismiss the appeal.

(3) The appeal court must not dismiss an appeal under subsection (1) if the appellant, after having been given notice under subsection (2), rectifies the non-compliance within the notice period given by the court.

Discussion

[18] We are satisfied from the procedural history described above that the appellant has had adequate notice of the procedural orders made in the four minutes issued on 29 November 2011, 9 October 2012, 5 February 2013 and 16 April 2013. Given the steps taken by the Registry to serve the minutes we do not accept that the appellant was unaware of the minutes.
[19] There is no doubt that the appellant was clearly warned about the possible application of the provisions of s 338 in the minute of 9 October 2012. Moreover, in the subsequent minutes even more specific notice of intention to use the provisions in s 338 was given.
[20] We are also satisfied that the appellant has not, as of the date of this judgment, rectified the non-compliance within the notice period given by way of the minute of 16 April 2013. This latter minute required compliance with the procedural orders “no later than 2 May 2013”.
[21] The response of the appellant to the Registry on 20 May 2013 and subsequently is wholly inadequate. It does not even come close to rectifying noncompliance. We appreciate that the appellant is self-represented. However, more than adequate allowance has been made for the fact of his self-representation by virtue of the very generous time allowances for compliance that have been made in the course of the procedural history of this appeal. While we accept that an appeal court should be cautious about exercising a power to bring an appeal to an end, the non-compliance exhibited in this case is the very type of non-compliance that we consider the provisions of s 338 of the Criminal Procedure Act were designed to cover.
[22] With respect to the merits of the appeal, we note that the appellant had pleaded guilty to the charge following a sentence indication in the District Court. The grounds of appeal are not easy to follow. Any concerns about counsel conduct and fresh evidence were the subject of the procedural orders already discussed. These have produced no clarity from the appellant. Another ground was that the appellant was allegedly told that if he “didn’t take the guilty plea [he] would be given the maximum sentence”. This suggestion is negatived by the Judge’s comments in the sentencing notes which show that, by the date of sentencing, the appellant had spent 10 months in custody. The Judge found that “time served” would be a sufficient penalty. The appellant’s guilty plea was entered after he had taken advice from his counsel. He was then convicted and discharged.
[23] Other grounds included an allegation of “inconsistencies and illegalities undertaken by the police to create a charge against me” and a claim that “the evidence Crown submitted against me was tampered with [and] was inadmissible”. No particulars are provided to substantiate such claims.
[24] From our review of the grounds put forward, none appear to have any merit.

Result

[25] The appeal dated 28 October 2011 by the appellant against his conviction for the offence of threatening to kill is hereby dismissed pursuant to the provisions of s 338(1) of the Criminal Procedure Act.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Ellis DC Wellington CRI-2010-031-1161, 26 September 2011.

^[2] Minute of Stevens J dated 29 November 2011.

^[3] Minute of Stevens J dated 9 October 2012, in which the time for compliance was extended to 14 December 2012.

^[4] Minutes of Stevens J dated 5 February 2013 and 16 April 2013 respectively.