Kahui v Police [2012] NZHC 103 (9 February 2012)

Last Updated: 28 February 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000236 [2012] NZHC 103

PUKEHAU WILLIAM CHARLES KAHUI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 9 February 2012

Counsel: No Appearance of or on Behalf of the Appellant

L Clancy for the Respondent

Judgment: 9 February 2012

_{(ORAL) JUDGMENT OF DUFFY J}

Solicitors: Meredith Connell P O Box 2213 (DX CP24063) Shortland Street

Auckland 1140 for the Respondent

_{Copy To: P W C Kahui (Appellant) 8/19 Station Road Pukekohe 2120}

KAHUI v POLICE HC AK CRI-2011-404-000236 9 February 2012

[1] This is the fourth time that this appeal has been brought on for hearing.

[2] Mr Kahui was convicted on one charge of male assaulting female, following the entry of a guilty plea. He was sentenced and has served the sentence imposed. Nonetheless, he considers that he did not commit the offence; hence, the appeal against conviction.

[3] When the matter was first called on 19 September 2011, the respondent sought an adjournment in order to obtain a statement from counsel who represented Mr Kahui in the District Court. This was because one of the grounds of appeal was that, in essence, Mr Kahui’s counsel acted contrary to, or without, instructions. Accordingly, the appeal was adjourned until 14 November 2011. On that occasion, the appeal was further adjourned because Mr Kahui could not be present in Court on that date.

[4] The matter then came before me on 15 December 2011. On that occasion, Mr Kahui confirmed to me that he wished to proceed with the appeal against conviction. I pointed out to him that it is very difficult for someone representing himself to pursue an appeal against conviction in circumstances where the conviction was entered following a guilty plea. Nonetheless, Mr Kahui was insistent that he wanted to proceed with challenging the conviction, and he wanted the opportunity to engage legal representation. Therefore, I adjourned the appeal on the basis that it was to be the last adjournment. I noted that the matter would not be called until the New Year and, accordingly, Mr Kahui should have sufficient time to secure legal representation, if he was able to do so.

[5] The matter has now been called today. Mr Kahui would have been notified by the Court that the appeal was to commence at 10.00 am. It is now 12.10 pm. Mr Kahui has not been present in Court today. I have had the Registrar formally call the appeal in the courtroom and call Mr Kahui’s name in the Court precincts, all to no avail. Attempts have been made to telephone Mr Kahui at the telephone number known to the Court and to the respondent; that too was unsuccessful.

[6] I am satisfied, in the circumstances, that Mr Kahui has been given every opportunity to pursue his appeal. Given the nature of the appeal, I consider it may well be that his failure to appear today is due to him reconsidering the purpose of pursuing an appeal against conviction in circumstances where he has been sentenced and served the sentence. Whether that is the reason for his failure to appear today, or not, is really of no matter. The simple fact is that the Court cannot allow its process to be disturbed by the failure of an appellant to appear without excuse, particularly when the appellant has already had the benefit of earlier adjournments. Accordingly, I consider it appropriate to dismiss the appeal.

Duffy J