Andrews v Police
[2017] NZCA 111
•5 April 2017 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA514/2016 [2017] NZCA 111 |
| BETWEEN | RONALD FALCON ANDREWS |
| AND | NEW ZEALAND POLICE |
| Hearing: | 7 March 2017 |
Court: | Kós P, Courtney and Williams JJ |
Counsel: | Appellant in person |
Judgment: | 5 April 2017 at 2.30 pm |
JUDGMENT OF THE COURT
AThe application for special leave to appeal is dismissed.
BThe application for name suppression is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
In September 2012, Ronald Andrews was working as a bus driver in Christchurch. He was then 65 years old and had been driving for Red Bus for some three years. At about 5 pm he was involved in a minor accident. He wanted to turn left from Athelstan Street into Barrington Street. The left turning lane was not moving so he drove into an incorrect lane to make a left turn around the stationary traffic. As he rounded the corner he found that he needed to pull left to avoid oncoming traffic on Barrington Street and, in doing so, collided with the rear of a vehicle travelling in the same direction. No one was injured. If there was damage (and Mr Andrews says there was none) it must have been very minor.
In October 2012 Mr Andrews appeared in the District Court before two Justices of the Peace and pleaded guilty to operating a vehicle carelessly. He was convicted and fined $300 with costs of $132.89. Although this was a standard penalty for the admitted offending, Mr Andrews is aggrieved because he understood from what the police told him that if he pleaded guilty he would only be fined and did not realise that he would receive a conviction. In April 2014 he applied unsuccessfully for a rehearing in the District Court. In February 2015 he appealed unsuccessfully to the High Court.[1] In September 2016 he applied unsuccessfully for leave to appeal to this Court.[2] He now applies to this Court for special leave to appeal.
[1]Andrews v New Zealand Police [2015] NZHC 211.
[2]Andrews v New Zealand Police [2016] NZHC 2231.
The application falls to be considered under s 144(3) of the Summary Proceedings Act 1957. The prerequisites for special leave to appeal under that provision are those described by this Court in R v Slater. There must be a question of law; the question of law must be one that ought to be submitted to this Court by reason of its general or public importance or for some other reason; and this Court must be of the opinion that it ought to be submitted.[3] This Court went on to make the following comments about the approach to be taken on an application for special leave:[4]
Section 114 was not intended to provide a second tier of appeal from decisions of the District Court in proceedings under the Summary Proceedings Act. Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions as were specified in subsections (2) and (3) are met and leave to appeal is granted. Neither the determination of what comprises a question of law, nor whether that point of law raises a question of general or public importance, are to be diluted.
[3]R v Slater [1997] 1 NZLR 211 (CA) at 215.
[4]At 212.
For the reasons that follow we are satisfied no question of law arises that justifies the granting of special leave.
Decision of Brown J
In the High Court, Brown J started from the position that he had jurisdiction to set aside a conviction.[5] He acknowledged the Crown submission that, following a guilty plea, an appeal against conviction will be entertained only in exceptional circumstances and that an appellant must show that a miscarriage of justice will result if the conviction is not overturned.[6] However, having considered the further evidence (for which leave to adduce had been granted) and with the benefit of seeing and hearing Mr Andrews during the appeal hearing, Brown J considered that Mr Andrews could conceivably have formed the view (albeit wrongly) that a conviction would not be entered against him.[7] For that reason, he heard the appeal on the basis of the approach in Austin Nichols & Co Inc v Stitchting Lodestar,[8] and proceeded to make his own assessment of the evidence.
[5]Andrews v New Zealand Police, above n 1, at [7] under the Summary Proceedings Act 1957, s 121(2).
[6]R v Merrilees [2009] NZCA 59, at [4].
[7]Andrews v New Zealand Police, above n 1, at [12].
[8]Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141, at [16].
Brown J reviewed the summary of facts to which Mr Andrews had pleaded guilty, footage of Mr Andrews’ manoeuvres taken through the front window of the bus (which did not capture the actual collision) and footage of a police interview during which Mr Andrews acknowledged that he had “made a bad decision” and used the right turning lane in Athelstan Street to get into the right turning lane in Barrington Street but then pulled the bus to the left “sooner than I should have”. On his account the bus touched the right rear bumper of the vehicle, he got out and established that there had been no damage to the other vehicle then suggested that he and the other vehicle owner move to the side of the road but the other driver refused to do so. Mr Andrews therefore intended to reverse a small distance but in doing so (according to the other driver) touched the other car a second time.
Brown J carefully considered whether the circumstances that emerged from the evidence satisfied the charge of careless use of a vehicle and found that they did.[9] Brown J then went on to consider whether the circumstances of the case would have justified a discharge without conviction under s 106 of the Sentencing Act 2002, which is subject to the limitations imposed by s 107 that:
The Court must not discharge an offender without conviction unless the Court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[9]Andrews v New Zealand Police, above n 1, at [35].
The only information that Brown J had before him as to the consequences of the conviction came from Mr Andrews’ own assertions that:[10]
30. As a result of the malicious and false claims made against him, the appellant lost his job and has lost about $70,000 in income as a result.
31. The appellant is suffering financial hardship and has also used up his Kiwisaver funds and other savings, totalling $23,000 and has no other savings available.
32. The appellant has suffered unfair stress and has trouble sleeping because of the ongoing injustice.
[10]At [38].
The “false claims” apparently related to references in the statement of facts to the bus having collided with the car and the complainant’s statements about the extent of damage to his vehicle. The Judge concluded that:
[43] I do not have before me information as to the appellant’s employment history or the process which was engaged in [sic] which led to his loss of employment. Nor do I have evidence of the appellant’s financial situation. I ascertain that he is in receipt of superannuation, he being 67 years old. I am mindful that the appellant claims to have suffered stress in what he regards as an “ongoing injustice”.
[44] Any legitimate concern which he has in that regard relates to the conduct of the complainant after the incident and the appellant’s treatment by his employer. However, the current appeal concerns the charge that the appellant drove carelessly. On that question there is no escaping the fact that the appellant’s driving was demonstrably careless, a fact which he acknowledged in his interview with the Police. I find that he is guilty of that offence. In the circumstances and on the evidence which has been placed before me I am not satisfied that the direct and indirect consequences of a conviction for careless driving in relation to this incident would be out of all proportion to the gravity of the offence.
Leave to appeal
In a document filed with his application Mr Andrews posed 20 questions that he maintained would justify leave to appeal. The questions are framed as questions of law but in reality seek to relitigate the factual basis of the conviction and advance claims of loss caused by the conviction. They follow two central themes. The first is of alleged police misconduct in securing a conviction by deceiving Mr Andrews into thinking that the only consequence of pleading guilty would be a fine and by misrepresenting the circumstances of the accident in the summary of facts and to the court. The second theme is the financial loss that Mr Andrews claims to have suffered as a result of the conviction. The questions do not arise from any error in Brown J’s approach or his conclusions and are not of such general or public importance that would justify leave to appeal being granted. In submissions filed for the purposes of the hearing Mr Andrews made 24 discrete, though overlapping, assertions of misconduct by the police. None of these raised questions of law.
On the evidence ultimately put before the High Court there can be no doubt that, even if there had been no damage to any other car, the manner in which Mr Andrews drove that day would, inevitably, have resulted in a conviction. At best, Mr Andrews would have had the opportunity to apply for discharge without conviction. Indeed, he approached the appeal before Brown J on the basis that he might be given that opportunity, asserting adverse consequences as a result of the conviction which were out of proportion to the gravity of the offence. Brown J accommodated Mr Andrews by considering whether, on the information before him, such an application could succeed.
But even though Mr Andrews had come to the High Court advancing an argument that his conviction ought to be quashed because the consequences of it were out of proportion to the gravity of the offending, he made no effort to provide adequate evidence of those consequences. In particular, he did not put before the Judge any documentation relating to the circumstances of his dismissal (which appears to have preceded his conviction) or the extent of his loss of income following it. There was, therefore, insufficient information on which Brown J could accurately identify the consequences of the conviction or conclude that those consequences were out of proportion to the gravity of the offending. The obligation to furnish such information to the Court was on Mr Andrews not just because he was the applicant but also because he alone had access to it. In light of the case Mr Andrews presented, the Judge did not make any error, much less an error of law.
The application for special leave to appeal is therefore dismissed.
Application for name suppression
At the hearing before Brown J, Mr Andrews made an oral application for name suppression which the Judge declined. Mr Andrews did not appeal that decision. In his updating letter to this Court, however, he signalled his intention to seek name suppression. Assuming that he intended to do so as a fresh application (rather than seeking leave to appeal against Brown J’s decision) Mr Andrews would need to show that he would suffer “extreme hardship” if his name was not suppressed.[11]
[11]Criminal Procedure Act 2011, s 200(2)(a); and Holland v R [2016] NZCA 621.
Mr Andrews did not offer any explanation as to how publication of this name would cause him extreme hardship. Moreover, this matter has now been in the public arena since 2012. There is no basis now on which to grant an order suppressing Mr Andrews’ name.
Result
The application for special leave to appeal is declined.
The application for name suppression is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
4
0