Jackson v Police - [2019] NZCA 247

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA594/2018
[2019] NZCA 247

BETWEEN	TIMOTHY JOHN JACKSON Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	28 May 2019
Court:	French, Miller and Lang JJ
Counsel:	Applicant in person S K Barr for Respondent
Judgment:	24 June 2019 at 3 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

Mr Jackson was convicted on a charge of driving at a dangerous speed following a Judge alone trial before Judge DJL Saunders in the District Court.[1] His appeal against conviction was dismissed by Nation J on 3 September 2018.[2] He now seeks leave to bring a second appeal against conviction to this Court.

The statutory test

[1]Police v Jackson [2016] NZDC 16002.

[2]Jackson v Police [2018] NZHC 2297.

Section 237(2) of the Criminal Procedure Act 2011 prohibits this Court from granting leave to bring a second appeal unless it is satisfied the proposed appeal involves a matter of general or public importance or, alternatively, a miscarriage of justice has occurred or may occur unless the appeal is heard. In McAllister v R this Court confirmed that the statutory test sets a higher threshold for a second appeal.[3]

The proposed questions on appeal

[3]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.

First, Mr Jackson questions whether Nation J determined the appeal in accordance with the principles enunciated by the Supreme Court in Sena v Police, a judgment delivered the week before we heard the present application.[4]
[4]Sena v Police [2019] NZSC 55.
Secondly, Mr Jackson points out that the recording of the hearing in the District Court was no longer available by the time his appeal was heard in the High Court. As a result, Nation J determined the appeal without the benefit of a transcript of that hearing.[5] Mr Jackson contends that the absence of a trial transcript meant he could not properly advance his appeal in the High Court. As result, a miscarriage of justice will occur if he is not granted leave to bring a second appeal to this Court. If the proposed appeal is successful, Mr Jackson will ask the Court to quash the conviction but not order any rehearing in the District Court.

Background

[5]Issues arising out of the lack of any transcript, coupled with the procedure adopted by the High Court when it heard an earlier appeal by Mr Jackson against conviction, have already occupied the attention of this Court. It granted leave to Mr Jackson to bring a second appeal and, having found the High Court appeal to have been a nullity, suggested that Mr Jackson seek a re‑hearing in that Court: Jackson v Police [2017] NZCA 374 and Jackson v Police [2018] NZCA 194. He did so, and the present application follows the re-hearing of the appeal by Nation J.

On 20 December 2015…

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 Jackson v Police

Details

AGLC: Jackson v Police [2019] NZCA 247
Case: [2019] NZCA 247
Decision Date: 24 June 2019 at 3 pm

CaseChat Overview and Summary

In Jackson v Police, the Court of Appeal declined Timothy John Jackson's application for leave to bring a second appeal against his conviction for driving at a dangerous speed. Jackson's initial appeal against his conviction was dismissed by Nation J in the High Court on 3 September 2018. Jackson sought leave to appeal to the Court of Appeal again, arguing that Nation J did not determine the appeal in accordance with the principles set out by the Supreme Court in Sena v Police and that the absence of a trial transcript prevented him from properly advancing his appeal in the High Court. The Court of Appeal held that the proposed appeal did not raise any issues of general or public importance and that there was no miscarriage of justice if Jackson was not granted leave to bring a second appeal. The Court found that Nation J determined the appeal in a manner consistent with the approach prescribed by the Supreme Court in Sena, and that the absence of a trial transcript did not prevent Jackson from advancing his appeal in the High Court. The application for leave to bring a second appeal was declined.

The legal issues in this case were whether Nation J determined the appeal in accordance with the principles set out by the Supreme Court in Sena v Police and whether the absence of a trial transcript prevented Jackson from properly advancing his appeal in the High Court. The Court of Appeal held that Nation J determined the appeal in a manner consistent with the approach prescribed by the Supreme Court in Sena and that the absence of a trial transcript did not prevent Jackson from advancing his appeal in the High Court. The Court found that the identification evidence, the lawfulness of any detention that occurred whilst Jackson was at the service station in Kaikoura, and the circumstances Judge Saunders had relied on to find that the speeding was dangerous could all be determined without the need for a trial transcript. The Court of Appeal therefore declined Jackson's application for leave to bring a second appeal.

Orders