Anderson v The Queen - [2019] NZCA 145

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA585/2018
[2019] NZCA 145

BETWEEN	MATTHEW IAN ANDERSON Appellant
AND	THE QUEEN Respondent

Hearing:	On the papers
Court:	Gilbert, Wylie and Thomas JJ
Counsel:	T J Jackson for Appellant K L Kensington for Respondent
Judgment:	7 May 2019 at 11 am

JUDGMENT OF THE COURT

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

____________________________________________________________________

REASONS OF THE COURT

(Given by Thomas J)

In June 2018, Matthew Anderson was convicted at a Judge-alone trial of one charge of dangerous driving on the evening of 1 August 2017.[1] He appealed his conviction and sentence to the High Court. His appeal was dismissed in September 2018.[2] Mr Anderson now seeks leave to bring a second appeal against conviction on the basis that a miscarriage of justice has occurred, or may occur, if leave is not granted. The Crown opposes the application.

Background

[1]Police v Anderson [2018[ NZDC 12928.

[2]Anderson v Police [2018] NZHC 2408.

Frustrated by vehicles driving down the rural road in which he lived, sounding their air horns late at night or in the early hours of the morning, Mr Anderson decided to follow a Nissan ute he thought was involved in order to obtain its registration number. The ute was driven by a Mr Quantock. Ms Little was his passenger.
The two vehicles travelled a distance of approximately 43 kilometres from Te Moana Road, near Geraldine, towards Timaru. Mr Quantock did not give evidence at the District Court trial but Ms Little did. Her evidence was that Mr Anderson followed them closely with his headlights on full beam, at times right on their bumper, while they were travelling at approximately 120 kilometres per hour. She described Mr Anderson’s car coming out to pass the ute and then cutting in front of it, requiring Mr Quantock to take evasive action. As they left Geraldine, Ms Little called the police to report Mr Anderson’s driving. They were instructed to keep driving and meet the police in Timaru.
Ms Little’s evidence was that Mr Anderson continued at high speed, travelling closely behind the ute, at one stage coming up to pass but getting so close to its side that Ms Little said it would not have been possible to open the driver’s door. She said Mr Anderson tried to push them off the road. The ute then stayed in the centre of the passing lane to prevent Mr Anderson overtaking but he continued to swerve, trying to pass. Eventually he did, again trying to force the ute off the road. Ms Little said, when the police lights became visible, Mr Anderson’s car disappeared.
An independent witness, Mr Atkinson, was driving through Winchester when he saw two cars travelling very close together at high speed. He described Mr Anderson’s driving as aggressive because he was following closely at high speed and the ute had its hazard lights on. Mr Atkinson decided to follow the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anderson v The Queen

Details

AGLC: Anderson v The Queen [2019] NZCA 145
Case: [2019] NZCA 145
Decision Date: 7 May 2019 at 11 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application from Matthew Ian Anderson for leave to bring a second appeal against his conviction for dangerous driving. The Court dismissed the application, finding that a miscarriage of justice had not occurred or was unlikely to occur. The appellant had been convicted of dangerous driving following an incident where he pursued another vehicle at high speed and in a dangerous manner. The appellant appealed his conviction to the High Court, but the appeal was dismissed. The appellant now sought leave for a second appeal on the grounds that a miscarriage of justice had occurred or may occur if leave was not granted. The Crown opposed the application.

The Court of Appeal held that the application did not involve a matter of general or public importance or a miscarriage of justice. The Court held that the test for whether a second appeal is warranted on the grounds a miscarriage of justice may have occurred is a high one. Leave will generally be declined where the application raises issues in the nature of a factual assessment specific to the circumstances of the case. The proposed appeal fell into this category as both the District and High Courts had comprehensively considered the evidence and there was no basis to interfere with their assessment of it.

The Court also held that the same grounds of appeal were before the High Court at the first appeal and were addressed and correctly dealt with. The grounds had insufficient prospects of success and did not justify the granting of leave for a second appeal. The Court was not satisfied a miscarriage of justice had occurred or may occur if leave for a second appeal was not granted. The application for leave to appeal was accordingly declined.

The Court of Appeal dismissed the application for leave to bring a second appeal against the conviction for dangerous driving.

Orders