Tuirirangi v Police

[2017] NZCA 571

IN THE COURT OF APPEAL OF NEW ZEALAND

CA657/2016
[2017] NZCA 571

BETWEEN	DAVID LOGAN TUIRIRANGI Applicant
AND	NEW ZEALAND POLICE Respondent

Court:

Cooper and Winkelmann JJ

Judgment:

(On the papers)

7 December 2017 at 11 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

1. In 2016 Mr Tuirirangi applied for leave to bring a second appeal.  He has, however, failed to take steps necessary to progress that application.  The history of the proceeding is set out in a minute of Winkelmann J dated 18 October 2017 as follows:[1]

   [2]       On 4 December 2015, following guilty pleas to charges of injuring with intent to cause grievous bodily harm and possession of an offensive weapon, Mr Tuirirangi was sentenced by Judge Smith in the District Court at Taihape to two years and six months imprisonment.  On 23 November 2016 in the High Court Williams J dismissed Mr Tuirirangi’s first appeal against conviction but allowed his first appeal against sentence.  Mr Tuirirangi’s sentence was quashed and replaced with a sentence of two years and two months imprisonment.

   [3]       On 19 December 2016 Mr Tuirirangi applied for leave to bring a second appeal against conviction and sentence.  Wild J directed that the application for leave be heard on the papers and that submissions were to be filed by 17 February 2017 by Mr Tuirirangi.  Mr Tuirirangi did not meet that timetable.  His application for legal aid was declined on 20 March 2017.  He took no steps to file submissions in compliance with an extended timetable.

   [4]       On 6 September 2017 Ms Nicolette Levy was appointed as counsel to assist with identifying whether there were any grounds to advance his application, to prepare submissions in respect of that application as he required and to provide such other assistance as he requires.

   [5]       Ms Levy has filed a memorandum in which she reports she met with Mr Tuirirangi on 8 September 2017 and discussed a wide range of matters relating to Mr Tuirirangi’s conviction, sentence, mental health and parole.  Some of the observations he made during that meeting were inconsistent with wishing to continue his application for a second appeal and overall his ability to understand the complex issues was limited.  He was nevertheless willing to speak with her.

   [6]       Following the meeting she sent a letter providing further advice and a notice of abandonment of appeal if Mr Tuirirangi’s decision was that he did not wish to continue with the appeal.  When she next visited Mr Tuirirangi he did not wish to speak with her, but using a prison guard as an intermediary she established that he had received her letter, thrown it out, that he could not remember having a live appeal, that he was not interested in it anyway because he did not have a lawyer and his sentence was nearly up.

   [1]Tuirirangi v R CA657/2016, 18 October 2017 (Minute of Winkelmann J).

2. In that minute Mr Tuirirangi was advised that unless he filed submissions in support of his application for leave to bring a second appeal by 24 November 2017, his application for leave to appeal would be struck out for non-compliance with timetabling orders. 

3. Mr Tuirirangi has not filed any submissions and is in continuing breach of timetable orders.

4. Pursuant to s 338 of the Criminal Procedure Act 2011, this Court has power to dismiss an application for leave to appeal for non-compliance with timetable orders. That is the appropriate step to be taken here.  Given Mr Tuirirangi’s failure to comply with the timetable orders to date, it seems clear he does not wish to proceed with his application.  The application for leave to bring a second appeal is therefore dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent