Criminal Procedure Act 2011, ss 338-339 – dismissal of appeal for procedural non-compliance (failure to file written submissions) – statutory pre-requisites – discretion to dismiss – whether further hearing is required – requirement for separate judicial consideration following acts of non-compliance – whether High Court must consider merits of the appeal – proper approach to appeal against dismissal under s 338 – relevant principles

Bell v New Zealand Police [2023] NZCA 291.

After a judge-alone trial in the District Court, Sarah Bell was found guilty of two charges of harassment and one charge of resisting a constable acting in the execution of his duty.

She appealed her convictions to the High Court. Her hearing was adjourned twice due to her inability to obtain legal representation and to ensure sufficient time for her to file written submissions. Bell was warned twice that if submissions in support of the appeal were not filed in advance, the appeal would be dismissed. Her hearing was scheduled for 14 December 2022.

Bell failed to file submissions ahead of the hearing. The High Court accordingly dismissed the appeal for procedural non-compliance pursuant to s 338 of the Criminal Procedure Act 2011 (CPA). The High Court did not consider the merits of the appeal in making this decision.

Bell sought leave to appeal the High Court’s dismissal decision pursuant to s 339 of the CPA. A direction was then made that the leave application be heard together with the proposed appeal, on the papers.

Section 338 applies if the appellant has failed to comply with a procedural order or timetable, the appeal court gave the appellant 10 working days’ notice of its intention to dismiss their appeal, and the appellant failed to rectify the non-compliance within that period.

Where an appellant wants to appeal against dismissal under s 338, they must:

• Establish that leave to appeal should be granted;
• show the judge erred in principle, gave weight to extraneous or irrelevant matters, failed to give sufficient weight to relevant considerations, or was plainly wrong; and
• establish an arguable case that the s 338 discretion was wrongly exercised, for it is the decision to dismiss for non-compliance – and not the conviction and/or sentence – that is challenged.

Applicable principles: CPA, ss 338-339 – dismissal of appeal for procedural non-compliance – statutory pre-requisites – where pre-requisites met, court has discretion to dismiss under s 338 – whether further hearing is required – requirement for separate judicial consideration following act of non-compliance – whether the High Court must consider the merits of the appeal – expectation of high-level assessment of merits of proposed appeal in most cases – relevance of orderly and efficient administration of the High Court – proper approach to appeal against dismissal under s 338 – relevant principles – burden on applicant – whether judge erred in principle, gave weight to irrelevant matters, failed to give weight to relevant matters or was plainly wrong – not sufficient for applicant to simply establish dismissed appeal may have merit – applicant must establish arguable case that s 338 discretion wrongly exercised.

Held: Application for leave to appeal dismissed. The three statutory pre-requisites under s 338 CPA were met and there was no error by the High Court in exercising its discretion.

The court did consider the substantive issues Bell sought to raise, and did not discern any real merit to the proposal appeal.

Bell v New Zealand Police [2023] NZCA 291.