Gebbie v Police

[2025] NZHC 135

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2024-485-83

[2025] NZHC 135

BETWEEN

BRENT GAYTHORNE GEBBIE

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	11 February 2025
Appearances:	B G Gebbie in person (by phone) V E Squires for Respondent
Judgment:	12 February 2025

JUDGMENT OF McHERRON J

[1]    On 28 August 2023, Brent Gebbie received an infringement notice for speeding on Transmission Gully.1 His alleged speed was 123 km/h, in excess of the 100 km/h posted limit. The infringement fee payable was $170, and 35 demerit points were to be recorded.2

[2]    Mr Gebbie requested a hearing. On 2 October 2024, two Justices of the Peace found that the infringement offence was proven beyond reasonable doubt. They ordered Mr Gebbie to pay $170 plus $33 court costs.3

[3]    Mr Gebbie appealed. Judge Nicholls dismissed his appeal on 11 December 2024.4

1      Land Transport Act 1998, s 40; Land Transport (Road User) Rule 2004, r 5.1.

2      Land Transport (Offences and Penalties) Regulations 1999, regs 4(2)(a), 6; sch 1B, pt 2; sch 2, pt 2.

3      New Zealand Police v Gebbie District Court, Porirua CRI-2023-091-002139 (oral judgment of Justices of the Peace C Ludford and E Kalafatelis), 2 October 2024.

4      Gebbie v New Zealand Police [2024] NZDC 31037.

GEBBIE v NEW ZEALAND POLICE [2025] NZHC 135 [12 February 2025]

[4]    Mr Gebbie now seeks leave under s 237 of the Criminal Procedure Act 2011 to bring a second appeal. That section provides:

237    Right of appeal against determination of first appeal court

(1)A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.

(2)The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a)      the appeal involves a matter of general or public importance; or

(b)      a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[5]    None of the matters raised by Mr Gebbie in his notice of application for leave to appeal, or his written and oral submissions, involve a matter of general or public importance under s 237(2)(a). However, I consider that a miscarriage of justice may have occurred at the stage of the first instance determination by the Justices of the Peace (s 237(2)(b)).

[6]    At his first appearance hearing on 7 February 2024, Mr Gebbie entered a not guilty plea. Mr Gebbie advised the Justices of the Peace presiding that he wished to play a video at the hearing. The record of hearing states, “Court to notify which media he can use” for his video.

[7]    At the next mention of the matter on 6 March 2024, also before two Justices of the Peace, Mr Gebbie reported that the Court had not advised him which media he could use for his video. The hearing notes record the Justices “[a]dvised – DVD format is suitable … Court to supply DVD player for the hearing”. They adjourned the hearing until 17 April 2024, which was then rescheduled to 15 May 2024. On that date, Mr Gebbie attended with his evidence but the record of appearance states that it was “in a format not supported” and that “he needed to speak to Manager of Porirua Court today to find out how he can ensure he brings evidence in a DVD/USB format that can be played.”

[8]    Mr Gebbie told me that he spoke with the Court manager who checked his video and found that it was playable. Despite this, “[i]ssues with technology” meant

a further hearing scheduled for 24 July 2024 could not proceed. On that date, the Justices of the Peace expressed concerns about the length of the video that Mr Gebbie wished to produce. They adjourned the hearing again until 2 October 2024. The notes of evidence on that date record there were “tech issues with evidence”. On this occasion the Court determined that it would proceed without Mr Gebbie’s video evidence. The decision of the Justices of the Peace dated 2 October 2024 does not mention the  video  evidence  at  all.  Neither  does  the  decision  on  appeal  dated 11 December 2024 though, in fairness to Judge Nicholls, the absence of the video evidence does not appear have been the main focus of Mr Gebbie’s first appeal.

[9]    I gave Mr Gebbie an opportunity to supply this Court with a copy of his video evidence, which he declined. However, he made the valid point that his argument in support of bringing a further appeal rests on the unfairness of the initial hearing in excluding the video evidence. When I asked him to explain the content of the video, Mr Gebbie said that it is his dashcam video. It records a vehicle travelling in front of him that he considers may have been picked up by the police laser device, rather than his own vehicle. I questioned Mr Gebbie about why he did not put that proposition to Sergeant Smith when he cross-examined him on 2 October 2024. Mr Gebbie said that without his video evidence the strength of this line of questioning was diminished so he decided not to pursue it.

[10]   Of course, not having seen the video, I am unsure whether it would have affected the result. Instinctively, I doubt it, but that does not govern whether there has been a miscarriage of justice. The question is whether there has been a failure of process that tends to undermine values fundamental to the criminal trial process itself and which are so “irreducible that their compromise will be fatal irrespective of the strength of the rest of the prosecution case”.5 Examples in the cases include a lack of legal representation, failure by counsel to follow instructions on fundamental issues such as plea or the giving of evidence, or deprivation of an accused’s right to an adequate closing address.6

5      Ogden v R [2016] NZCA 214 at [36].

6      At [36], citing Wiley v R [2016] NZCA 28 at [40], Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [77]; Hall v R [2015] NZCA 403; and Kaka v R [2015] NZCA 532.

[11]   Here, Mr Gebbie’s inability to play the relevant excerpts from his dashcam video in Court and to cross-examine the police officer in relation to that has deprived him of the ability to develop his defence and close his case adequately. This has resulted in a miscarriage of justice that has undermined his first instance hearing and the subsequent appeal. For these reasons, he should have a further opportunity to defend himself.

[12]   However, I emphasise that Mr Gebbie will need to do his part to cooperate fully with Court staff to avoid any chance of this mishap recurring. He will need to ensure his video is tightly edited so that only the relevant portion (which I imagine is the period after the police laser allegedly locked onto Mr Gebbie’s vehicle) is produced as evidence. This will avoid taking up valuable Court time with irrelevant material.7 Mr Gebbie will also need to arrange with Court staff to test the relevant Court equipment in advance, if possible, to ensure that the video can be played in Court and taken into evidence.

[13]   I appreciate that the Justices of the Peace may have become frustrated after numerous unsuccessful attempts to play the video. They elected to proceed with the hearing having given Mr Gebbie what they thought were adequate opportunities to resolve technological issues. However, on balance I am persuaded that more effort needed to be made by the Court and Mr Gebbie to overcome these difficulties. That would have allowed Mr Gebbie to produce what he considers to be important and relevant evidence and for that evidence to be considered in the hearing and determination of the alleged infringement.

Result

[14]For the above reasons, I:

(a)grant Mr Gebbie leave to bring a second appeal;

(b)allow Mr Gebbie’s appeal and set aside the order that he pay a fine and Court costs;

7      Evidence Act 2006, s 8(1)(b).

(c)remit the matter to the District Court for a full rehearing.

McHerron J

Solicitors:

Crown Solicitor, Wellington for Respondent