David Keith Silby v New Zealand Police

IN THE SUPREME COURT OF NEW ZEALAND

SC 6/2017
[2017] NZSC 46

BETWEEN	DAVID KEITH SILBY Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Elias CJ, William Young and Arnold JJ
Counsel:	Applicant in person C A Brook and S K Jameson for Respondent
Judgment:	7 April 2017

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

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REASONS

The applicant challenges a judgment of the Court of Appeal[1] refusing him leave to appeal against a High Court judgment[2] which dismissed his appeal against his convictions and the sentences imposed on charges of driving too close behind another vehicle and using a mobile phone while driving.[3] He also, in the alternative, seeks leave to appeal directly from the High Court judgment.
[1]Silby v New Zealand Police [2016] NZCA 592 (Cooper, Brewer and Peters JJ) [Silby (CA)].
[2]Silby v New Zealand Police [2016] NZHC 162 (Venning J) [Silby (HC)].
[3]New Zealand Police v Silby [2016] NZDC 25869 (Judge Becroft).
The police officer who witnessed the offending and stopped the applicant was a detective who was not in uniform. Basing himself on ss 113 and 114(1) of the Land Transport Act 1998, the applicant maintains that the detective had not been entitled to stop him. As the High Court and Court of Appeal judgments point out, this argument overlooks s 114(2) which authorised the course the detective took.[4] There is thus no substance in his complaints.
[4]Silby (CA), above n 1, at [15]–[20]; and Silby (HC), above n 2, at [16]–[22].
Under s 213(3) of the Criminal Procedure Act 2011, the judgment of the Court of Appeal dismissing the application for leave to appeal is “final” which precludes an appeal to this Court from that decision. We are not prepared to grant leave for a leap-frog appeal (that is direct from the High Court judgment) given its lack of substance and the non-satisfaction of the criteria in s 14 of the Supreme Court Act 2003.[5]
[5]This provision applies to this application despite the repeal of that Act: Senior Courts Act 2016, sch 5 cl 10.
Accordingly, the application for leave to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

David Keith Silby filed an application in the Supreme Court of New Zealand against the New Zealand Police, seeking leave to appeal against a previous Court of Appeal decision that had dismissed his appeal against his convictions and sentences for driving too close behind another vehicle and using a mobile phone while driving. The applicant argued that the police officer who witnessed his offences and stopped him was not entitled to do so, as the officer was a detective not in uniform. The Court of Appeal and High Court had already dismissed the applicant's argument, as the relevant sections of the Land Transport Act 1998 permitted the detective to take the action he did.

The primary legal issue before the Supreme Court was whether the Court of Appeal's refusal to grant leave to appeal was final, and if the Supreme Court was prepared to grant a leap-frog appeal directly from the High Court judgment. The Court had to determine whether the applicant's appeal had any substance and if it satisfied the criteria for a leap-frog appeal under the Supreme Court Act 2003. The Court also considered whether the finality of the Court of Appeal's judgment precluded an appeal to the Supreme Court.

The Supreme Court dismissed the application for leave to appeal. The Court noted that the Court of Appeal's judgment dismissing the applicant's appeal was final under section 213(3) of the Criminal Procedure Act 2011, precluding an appeal to the Supreme Court from that decision. Additionally, the Court was not prepared to grant a leap-frog appeal from the High Court judgment due to the lack of substance in the applicant's arguments and the failure to satisfy the criteria for such an appeal under the Supreme Court Act 2003.

The Supreme Court dismissed the application for leave to appeal, and no further appeal is permitted in this matter.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established