Hartley v Police
[2020] NZCA 334
•7 August 2020 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA107/2019 [2020] NZCA 334 |
| BETWEEN | CORY HARTLEY |
| AND | NEW ZEALAND POLICE |
| Court: | French, Woolford and Dunningham JJ |
Counsel: | Applicant in person |
Judgment: | 7 August 2020 at 10 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
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REASONS OF THE COURT
(Given by Dunningham J)
The applicant, Mr Hartley, was convicted in the District Court at Palmerston North of two charges of careless driving causing injury.[1] He was sentenced to 80 hours’ community work and six months’ disqualification from holding or obtaining a driver licence.
[1]Police v Hartley [2018] NZDC 17735.
He appealed both his conviction and sentence to the High Court, but his appeal was dismissed.[2] He now seeks leave from this Court to bring a second appeal against conviction and sentence.
Background
The offending
[2]Hartley v Police [2019] NZHC 385.
In March 2017, Mr Hartley lost control of his vehicle while coming around a corner. His van crossed the centre line and struck an oncoming vehicle. The occupants of the other vehicle both sustained moderate injuries.
The District Court hearing
Mr Hartley represented himself at a judge-alone trial in August 2018. The key issue in that hearing was whether Mr Hartley was driving carelessly. His defence was that he came around a corner to find a line of stopped cars in front of him, requiring him to swerve to the left to avoid a collision with them. He said he braked prior to swerving on to the gravel shoulder, and the loose gravel caused his vehicle to take off to the right, at which point he was no longer in control of the vehicle and was therefore not at fault. His mother, who was a passenger in his vehicle, confirmed his account.
However, six other witnesses to the accident did not see any vehicles stopped in front of Mr Hartley.[3] The Judge, while noting his defence, said that Mr Hartley “must maintain control of [his] car at all times” and, on the basis of his own evidence, he was careless.[4] He was therefore found guilty on the charges. After a brief discussion about Mr Hartley’s personal circumstances the Judge imposed a sentence of 80 hours’ community work rather than a fine, along with the mandatory six month period of disqualification from holding or obtaining a driver’s license.
The High Court appeal
[3]Being the two injured occupants of the van that Mr Hartley struck and four other drivers who were witnesses to the accident.
[4] Police v Hartley, above n 1, at [11].
Mr Hartley appealed to the High Court on the grounds that the District Court trial was unfair due to his inability to cross-examine witnesses, his lack of opportunity to defend himself and because of factual discrepancies he alleged were in the prosecution evidence.
Simon France J considered and dismissed each ground. He was satisfied the hearing was fair. Mr Hartley could not identify any matters of significance that he was prevented from advancing and interruptions to control relevance were inevitable and did not point to unfairness. In respect of the alleged factual inconsistencies, these were either irrelevant or were able to be explored in questioning. The suggestion that there had been witness collusion had not been supported by any evidence and could not be taken further. In relation to the core issue, whether the Judge was wrong to conclude it was careless driving based on Mr Hartley’s own account, Simon France J considered it was “established beyond a reasonable doubt that the obstruction Mr Hartley believes he encountered did not exist. None of the witnesses saw it.”[5] Thus, “[t]he only explanation for Mr Hartley’s vehicle entering onto the gravel is that it was the product of carelessness [on] his part”.[6] The appeal was therefore dismissed.
[5]Hartley v Police, above n 2, at [12].
[6]At [13].
Mr Hartley did not pursue his appeal against sentence in the High Court and so the High Court dismissed his sentence appeal.
Grounds of appeal
Mr Hartley seeks leave to appeal both conviction and sentence. His notice of application for leave to appeal does not disclose the grounds of appeal. However, his submissions to the Court dated 4 July 2020 and his undated further submissions are very firmly fixed on the same factual issues which were determined to be irrelevant, or which were not upheld, in the lower court hearings. These include allegations that:
(a)the photographs produced at the hearing of the damage to his van were not indicative of the damage sustained in the accident and the constable who gave evidence “has inflicted further damage to the van”;
(b)the direction of travel stated by the constable was wrong as the relevant highway “does not travel south it travels south east”; and
(c)the witness testimony was not valid due to “shock at the time of the accident”, a failure to test them for drugs and alcohol, and because of discrepancies in their statements.
The question is whether these are grounds which would warrant granting a second appeal.
The statutory test
Sections 237 and 253 of the Criminal Procedure Act 2011 prevent this Court from granting leave to bring a second appeal against conviction and sentence respectively unless satisfied either:
(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.
The threshold for leave to bring a second appeal is high.[7] A matter of general or public importance might include an issue of general principle or importance in the administration of criminal law by the courts, but it is unlikely to include an issue of factual assessment specific to the circumstances of the case.[8] A court is slow to grant leave where success depends upon the court reversing concurrent findings of fact from the decisions below.[9] Where a trial was before a judge alone, the bar is higher as two decisions giving reasons for the factual findings are available.[10]
Is either of the grounds met?
[7]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
[8]At [36].
[9]Butler v Police [2016] NZCA 27 at [3].
[10]R (CA176/2016) v Police [2016] NZCA 403 at [26] citing Warren v R [2016] NZCA 108 at [30].
Mr Hartley does not address the criteria for granting leave to run a second appeal, nor can we discern them from the grounds of appeal set out in his submissions. We agree with the Crown submissions that this proposed appeal involves fact-specific matters which largely repeat those which were advanced in, and rejected by, the High Court. None of these involves a matter of general or public importance.
For the same reason, we do not consider a miscarriage of justice will arise if leave is not granted. The various factual matters Mr Hartley wishes to raise have been traversed on appeal in the High Court. The intervention from the prosecution and the Judge in the District Court was solely prompted by Mr Hartley pursuing lines of questioning which were irrelevant to his conviction. That does not give rise to a potential miscarriage of justice.
It is clear that Mr Hartley disagrees with the credibility and factual findings made by the District Court Judge, which were upheld on appeal. However, we can see no basis for revisiting the key factual findings which were relevant to the conviction being:
(a)there was not a line of stopped cars which Mr Hartley had to avoid; and
(b)he lost control of his vehicle in a way that was careless.
In respect of the proposed sentence appeal, Mr Hartley has requested his sentence of 80 hours’ community work be substituted for a fine because performance of community work would “harm [his] reputation in the local community”. Again, this argument raises no point of general or public importance, nor is it likely that a miscarriage of justice has occurred. At the time of sentencing, Mr Hartley supported a community-based sentence because his financial circumstances did not allow him to pay a substantial fine. It is difficult to see how performance of community work could cause more reputational damage than any other sentence imposed on conviction.
Conclusion
The application raises no grounds of general or public importance. A miscarriage of justice will not occur if the appeal is not heard. The threshold for leave to bring a second appeal is not met.
Result
The application for leave to bring a second appeal is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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