Ali v R [2023] NZCA 557 (8 November 2023)

Last Updated: 13 November 2023

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

CA307/2023 [2023] NZCA 557

	BETWEEN	ASHIK ALI Applicant
	AND	THE KING Respondent

Court:	Cooper P, Palmer and Jagose JJ
Counsel:	S Kumar for Applicant C A Brook for Respondent
Judgment: (On the papers)	8 November 2023 at 11.00 am

JUDGMENT OF THE COURT

The application for leave to appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Palmer J)

• [1] On 1 February 2022, Mr Ashik Ali, the applicant, pleaded guilty in the District Court to a representative charge of male assaults female.^[1] He was not convicted because he indicated his intention to seek a discharge without conviction. On 30 September 2022, with advice from new counsel, Mr Ali applied to vacate his guilty plea under s 115 of the Criminal Procedure Act 2011 (the Act). On 28 April 2023, the District Court declined the application.^[2]
• [2] Mr Ali now applies for leave to appeal that decision on two questions:

(a) whether the Court has a residual discretion to refuse leave to withdraw a guilty plea when the criteria for doing so have been made out; and

(b) whether the criteria for withdrawing a guilty plea are made out in a scenario where four factual propositions establish trial counsel error.

• [3] The appeal is proposed to be brought under s 296 of the Act, which applies where a person has been charged with an offence.^[3] Section 296(2) requires the appeal to be “on a question of law against a ruling by the trial court”. But neither of Mr Ali’s questions of law satisfy that requirement:

(a) The first question does not qualify because the District Court expressly found that the criteria for withdrawing a guilty plea had not been made out on the facts.^[4]

(b) The second does not qualify because the District Court expressly rejected all four factual propositions.^[5]

• [4] The proposed appeal would be on matters of fact, not issues of law as is required. Accordingly, this Court does not have jurisdiction to entertain the proposed appeal under s 296 of the Act.
• [5] The application for leave to appeal is declined.

Solicitors:
Sanjay Barristers & Solicitors, Auckland
Te Tari Ture o te Karauna | Crown Law Office, Wellington

---

^[1] Crimes Act 1961, s 194(b).

^[2] R v Ali [2023] NZDC 7477.

^[3] Criminal Procedure Act 2011, s 295(1).

^[4] R v Ali, above n 2, at [28]–[29].

^[5] At [18]–[19] and [24]–[26].