Balajadia v R [2021] NZCA 3 (3 February 2021)

Last Updated: 16 February 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA368/2020 [2021] NZCA 3

	BETWEEN	LUISITO BALAJADIA Applicant
	AND	THE QUEEN Respondent

Hearing:	1 December 2020
Court:	Goddard, Lang and Hinton JJ
Counsel:	No appearance for Applicant E J Hoskin for Respondent
Judgment:	3 February 2021 at 11.00 am

JUDGMENT OF THE COURT

The application for leave to appeal out of time is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

• [1] On 29 September 2017 Mr Balajadia was convicted in the District Court at Auckland of four offences against the Immigration Act 2009: two offences of exploitation of a temporary worker contrary to s 351(1)(a)(ii), and two offences involving provision of false and misleading information to Immigration New Zealand contrary to s 342.
• [2] On 8 February 2018 he was sentenced to eight months’ home detention.^[1]
• [3] On 10 July 2020 Mr Balajadia filed an application for leave to appeal out of time against his conviction for these offences.
• [4] Mr Balajadia was originally represented by Mr Goodwin. By memorandum dated 12 November 2020 Mr Goodwin advised this Court that he could not responsibly argue the grounds of appeal set out in Mr Balajadia’s notice of appeal. This Court issued a minute dated 16 November 2020 excusing Mr Goodwin from further attendance. The minute advised Mr Balajadia that if he failed to take steps to prosecute his appeal on the date of hearing, he would be at risk of his appeal being dismissed for want of prosecution.
• [5] Mr Balajadia’s appeal against conviction was set down to be heard on 1 December 2020. He was required to file his written submissions by 10 November 2020 under r 27(3) of the Court of Appeal (Criminal) Rules 2001 (Rules). No submissions were filed by or on behalf of Mr Balajadia.
• [6] Mr Balajadia’s appeal was called before this Court on 1 December 2020. There was no appearance by or on behalf of Mr Balajadia.
• [7] On 1 December 2020 this Court issued a further minute recording that in these circumstances s 338 of the Criminal Procedure Act 2011 applied. This Court notified Mr Balajadia that if he did not rectify his non-compliance with the Rules requiring him to file submissions, and file submissions within 10 working days of the date of the minute, the Court intended to dismiss his appeal.^[2]
• [8] Mr Balajadia has not rectified his non-compliance with the Rules requiring him to file submissions. The Court has not received any other communication from Mr Balajadia.
• [9] In these circumstances, we exercise the power under s 338(1) of the Criminal Procedure Act to dismiss Mr Balajadia’s application for leave to appeal out of time.

Result

• [10] The application for leave to appeal out of time is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Police v 3 Kings Food Distributors Ltd [2018] NZDC 2173 at [16].

^[2] Criminal Procedure Act 2011, s 338(2).