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…

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 Gebbie v Police

Details

AGLC: Gebbie v Police [2025] NZHC 135
Case: [2025] NZHC 135
Decision Date: 12 February 2025

CaseChat Overview and Summary

The case of Gebbie v Police concerns Brent Gebbie's challenge against a speeding infringement notice issued by the New Zealand Police. Gebbie was issued an infringement notice for speeding on Transmission Gully Road on 28 August 2023, where he was allegedly travelling at 123 km/h, exceeding the 100 km/h limit. The infringement notice imposed a $170 fine and 35 demerit points. Gebbie requested a hearing, which was held on 2 October 2024 before two Justices of the Peace, who found him guilty and ordered him to pay the fine and court costs. Gebbie appealed this decision, but his appeal was dismissed by Judge Nicholls on 11 December 2024. Gebbie now seeks leave to bring a second appeal under section 237 of the Criminal Procedure Act 2011, arguing that a miscarriage of justice may have occurred due to the exclusion of his dashcam video evidence.

The central legal issue in this case is whether Gebbie's exclusion from presenting his dashcam video evidence at the first instance hearing and subsequent appeal amounted to a miscarriage of justice, warranting a second appeal under section 237 of the Criminal Procedure Act 2011. Gebbie argues that the exclusion of his video evidence, which he believes shows another vehicle being picked up by the police laser device instead of his own vehicle, deprived him of a fair opportunity to defend himself and led to an unfair outcome. The Court must determine if the exclusion of this evidence was a failure of process that undermines fundamental values of the criminal trial process.

The High Court, in granting Gebbie leave to bring a second appeal, found that while none of the issues raised involved matters of general or public importance, there was a potential miscarriage of justice. The Court was persuaded that the exclusion of Gebbie's dashcam video evidence deprived him of the ability to develop his defence and adequately close his case. The Court acknowledged that the Justices of the Peace may have been frustrated by the technical difficulties, but held that more effort should have been made to ensure Gebbie could present his evidence. The Court granted Gebbie leave to bring a second appeal, allowed his appeal, set aside the order for payment of the fine and court costs, and remitted the matter to the District Court for a full rehearing.

The final orders of the Court include granting Gebbie leave to bring a second appeal, allowing his appeal and setting aside the order for payment of the fine and court costs, and remitting the matter to the District Court for a full rehearing. Gebbie is also required to cooperate fully with Court staff to avoid any chance of the mishap recurring, ensuring his video is tightly edited and tested in advance if possible.

Orders