Jackson v Police
[2019] NZCA 247
•24 June 2019 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA594/2018 [2019] NZCA 247 |
| BETWEEN | TIMOTHY JOHN JACKSON |
| AND | NEW ZEALAND POLICE |
| Hearing: | 28 May 2019 |
Court: | French, Miller and Lang JJ |
Counsel: | Applicant in person |
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 a police officer was operating a speed camera from a stationary vehicle parked on State Highway One (SH1) to the north of the Kaikoura township. At 1.46 pm the speed camera recorded a motorcyclist travelling towards Kaikoura at a speed of 145 kilometres per hour. The speed camera operator was able to obtain the registration number of the motorcycle and a general description of the motorcyclist.
The speed camera operator relayed this information to another officer in a patrol vehicle in the vicinity of Kaikoura. Approximately 15 minutes later this officer found a motorcycle and motorcyclist matching the description he had been given parked at a service station in Kaikoura.[6] The officer then spoke to this person, who turned out to be Mr Jackson. He also took photographs of Mr Jackson and his motorcycle.
The hearing in the District Court
[6]Mr Jackson told us that this officer had one of the letters or numbers of the registration number transposed but otherwise the number in the possession of the officer matched the registration number of his motorcycle.
At the hearing in the District Court, the photograph produced by the speed camera was not sufficiently clear to depict the number plate displayed on the rear of the motorcycle in the photograph. To remedy this the prosecution produced an enlarged version of the same photograph and this confirmed that the registration number of the motorcycle was A6WZY. The photograph also showed that the rider of the motorcycle was wearing a backpack, a black and white helmet and a pair of white calf-length boots. There is no dispute that Mr Jackson’s motorcycle has the registration number A6WZY, and that when the officer located him in Kaikoura Mr Jackson was wearing a backpack, helmet and boots similar to those worn by the rider of the motorcycle depicted in the speed camera photograph.
Judge Saunders considered this evidence was sufficient to identify Mr Jackson as having been the rider of the motorcycle depicted in the speed camera photograph.[7] The Judge also accepted that the speed recorded using the speed camera detection device amounted to correct and reliable evidence.[8]
[7]Police v Jackson, above n 1, at [23].
[8]At [24].
The Judge also found that, as a matter of law, the officer who took the photographs of Mr Jackson and his motorcycle in Kaikoura had the necessary authority to detain him whilst he established his identity and inspected the motorcycle for any defects.[9] He therefore did not accept that Mr Jackson had been unlawfully detained at the service station or that photographs taken during that period were improperly obtained.[10]
[9]At [18].
[10]At [18]–[22].
The Judge then considered Mr Jackson’s second argument, which was that a speed of 145 kilometres per hour was not sufficient of itself to constitute the offence charged. The Judge accepted this proposition but considered that other factors rendered the conduct in the present case dangerous.[11] These included the fact that the gazetted speed limit for the area in which the motorcycle was travelling was 80 kilometres per hour, and the highway was subject to medium to high traffic use at that time.[12] In addition, the entrance to a camping ground was situated just north of the speed camera.[13] There was a likelihood of pedestrians and vehicles being in the area given the time of day and the holiday period in which the incident occurred.[14] The Judge considered there was a distinct and reasonable possibility that Mr Jackson would not have been able to safely and appropriately deal with any emergency that might have arisen whilst he was travelling at 145 kilometres per hour.[15] The example he gave was of pedestrians or motorists leaving the camp ground and crossing or entering the highway.[16]
The appeal in the High Court
[11]At [28]–[30].
[12]At [29(1)–(2)].
[13]At [29(3)].
[14]At [29(5)].
[15]At [30].
[16]At [30].
After referring to s 232 of the Criminal Procedure Act, which governs first appeals, Nation J set out several facts that were not in dispute.[17] These included the fact that at 1.46 pm on 20 December 2015 a speed camera photographed a motorcyclist travelling north along SH1 near Kaikoura at a speed of 145 kilometres an hour. The motorcyclist was wearing a black pack back, white boots and a black and white helmet. The enlarged photograph of the registration plate showed th registration number A6WZY.
[17]Jackson v Police, above n 2, at [37].
In addition, there was no dispute regarding the road conditions or general circumstances in which the speeding was recorded.[18] The speed camera was situated just south of a pylon on the eastern side of the main highway, a short distance from the entrance to a camping ground. Any person or vehicle leaving the camping ground would have had a restricted view to the south by virtue of vegetation on the eastern side of the road and the curve of the road. The camping ground entrance was also a short distance from a sign describing a maximum speed limit of 80 kilometres per hour.
[18]At [38].
Similarly, the Judge recorded there was no dispute that a police officer found Mr Jackson and his motorcycle at a service station in Kaikoura approximately 15 minutes later.[19] He took photographs of both Mr Jackson and the motorcycle and these confirmed the registration number of Mr Jackson’s motorcycle was the same as that on the motorcycle depicted in the photograph taken by the speed camera. Mr Jackson was also wearing a backpack, helmet and distinctive calf-length white boots similar to those recorded in the speed camera photograph.
[19]At [40].
The Judge then analysed in considerable detail Mr Jackson’s arguments regarding the legality of his detention at the service station. He concluded that the officer had detained Mr Jackson lawfully at the service station under s 113 of the Land Transport Act 1998.[20]
[20]At [48].
The Judge then considered the effect of the absence of a trial transcript. He noted that in Kingi v R, this Court observed that the mere fact that there is no record of a trial transcript is not in itself a ground for finding a conviction unsafe or for holding that a miscarriage of justice has occurred.[21]
[21]At [50] citing Kingi v R [2016] NZCA 160 at [30].
The Judge then concluded:[22]
[51] I consider, with the respondent having been able at trial to identify Mr Jackson as the rider of the motorcycle when it was recorded travelling at 145 km/h and as the same rider of the motorcycle identified and photographed at the service station in Kaikoura a short time later, the availability of a transcript from the hearing would have been of no assistance to him on his appeal insofar as the identification of him as the speeding motorcyclist was concerned.
[52] With the photographic evidence as well as the evidence from both Constable Jackson and Mr Jackson himself, having established that he was the motorcyclist at the service station in Kaikoura with the motorcycle registration number A6WZY, there was a proper basis on which Constable Jackson could ask him to remain at the service station for as long as was necessary for him to complete obtaining all the details as to his identification and to take photographs that recorded the appearance of both him and the motorcycle in a manner sufficient to identify him as the motorcyclist who had been speeding earlier.
[53] In his submissions, Mr Jackson did not explain just what evidence might have been in a transcript to prove he had been unlawfully detained. Even if there was a suggestion of this, the detainment would have been for a brief period. It would have been for the purpose of recording his identity at the time through the photographs that were taken. It would have been a situation where the Judge would have been entitled to exercise his discretion under s 30 Evidence Act 2006 to admit the evidence that was obtained.
[22]Jackson v Police, above n 2.
Finally, the Judge analysed the factors that potentially made the speed dangerous at the time the speed camera photograph was taken. He considered these to be clear without the need for a transcript. On this point the Judge concluded:
[66] Again, the circumstances which the Police relied upon are clear without the Court having a transcript. There is no dispute that the speeding occurred near the middle of the day, at the height of summer on 20 December, close to Christmas. It was at a time when it could be expected traffic on State Highway 1 would be moderately heavy. The area where Mr Jackson was speeding was close to a camping ground and close to the beach. There was the potential for an emergency situation, particularly through a pedestrian crossing the highway to or from the camp ground. The Judge was entitled to find there would have been a particular difficulty for any motorist who might have been trying to exit the camp ground, given the limited visibility and the expectation that any opposing vehicle would be approaching at less than 100 km/h.
[67] In his written submissions of 29 November 2016, Mr Jackson said he had given evidence that he was familiar with the relevant stretch of road, said that he had not passed the access to the camping ground at excess speed, that coastal traffic had been moderate to light at the time and there was very little pedestrian or vehicle activity in that area.
[68] Even if a transcript of the evidence had shown that this was his evidence, the evidence, as accepted by Mr Jackson, would have been sufficient for the Judge to find that Mr Jackson had been travelling at 145 km/h in an 80 km/h area where the view of the road ahead was limited, pedestrians or other vehicles could have come quite suddenly into his path in a situation where they would not have been expecting a motorcyclist to be travelling at a speed approaching 145 km/h.
[69] In all these circumstances, there was a sufficient evidential basis on which the Judge could conclude that the speed at which Mr Jackson was travelling might have been dangerous to the public.
Decision
The proposed appeal clearly does not raise any issue that has significance beyond the circumstances of the case. Leave should therefore only be granted if we are satisfied a miscarriage of justice may occur if Mr Jackson is prevented from bringing a second appeal.
Did the Judge follow the approach prescribed by the Supreme Court in Sena?
At the time Nation J heard the appeal in the High Court he was required to approach the appeal in accordance with the principles this Court referred to in Gotty v R.[23] These required the High Court to determine an appeal against conviction as if it was a challenge to a jury verdict.[24]
[23]Gotty v R [2017] NZCA 528.
[24]At [14].
On 24 May 2019, the Supreme Court issued its judgment in Sena v Police.[25] The Supreme Court rejected the approach taken by this Court in Gotty. It held that the approach taken in Austin, Nichols & Co Inc v Stichting Lodestar applies to appeals against conviction following Judge alone trials.[26]If an appellate court comes to a different view on the evidence, the trial Judge necessarily will have erred and the appeal must be allowed.[27] However, it remains for the applicant to show that an error has been made in the Court below.[28] In undertaking its own assessment of the correctness of the decision the appellate court should take into account any advantage the trial Judge may have had.[29]
[25]Sena v Police, above n 4.
[26]At [32], applying Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[27]At [38].
[28]At [38].
[29]At [38].
Justice Nation obviously did not have the benefit of the judgment in Sena when he determined the appeal in the present case. It will be apparent, however, from our summary of his judgment that the Judge conducted his own review of the evidence and the arguments on the principal issues Mr Jackson raised on the appeal. In doing so he also dealt with the issue relating to the lawfulness of any detention of Mr Jackson at the service station in Kaikoura. The Judge then reached the following conclusions in the penultimate paragraph of his decision:[30]
[70] I accordingly hold:
(a)The lack of a transcript of the evidence given at trial, in the circumstances of this case, is not a sufficient ground for finding that Mr Jackson’s conviction was unsafe or unsatisfactory, or for holding that a miscarriage of justice had occurred, as would be required to permit the Court to allow the appeal in terms of s 232 Criminal Procedure Act.
(b)The admissible evidence from the photographs taken by the speed camera and at the service station, together with the evidence of Constable Jackson identifying the rider of the motorcycle spoken to at the service station, wearing a helmet similar to that worn by the motorcyclist photographed by the speed camera, wearing calf‑length white boots as was the motorcyclist photographed by the speed camera, and carrying a backpack as was the motorcyclist photographed by the speed camera, identified Mr Jackson as the motorcyclist who had been travelling at 145 km/h in the 80 km/h area south of Kaikoura at 1.48pm.
(c)There was additional admissible evidence identifying Mr Jackson as the speeding motorcyclist rider through the evidence from both the camera operator and Constable Jackson that the registration number of the motorcycle photographed by the speed camera was the registration number of the motorcycle Mr Jackson was on a little later at the BP service station in Kaikoura.
(d)The extent of the excess speed and the circumstances in which that speeding occurred provided an evidential basis on which the Judge could reasonably conclude that Mr Jackson’s speeding, in all the circumstances, might have been dangerous to the public.
[30]Jackson v Police, above n 2.
Overall, we consider the Judge determined the appeal in a manner consistent with that prescribed by Sena. He certainly did not find there was any error in the approach taken by Judge Saunders in the District Court. There is therefore no risk of any miscarriage of justice occurring based on the approach the Judge took to determining the appeal.
Did the lack of a trial transcript prevent Mr Jackson from advancing his appeal in the High Court?
The principal issues that Mr Jackson raised in the High Court related to the adequacy of the identification evidence, the lawfulness of any detention that occurred whilst Mr Jackson was at the service station in Kaikoura and the circumstances Judge Saunders had relied on to find that the speeding was dangerous.
The identification issue could be determined without regard to the transcript because there was no dispute that the speed camera took a photograph that, upon enlargement, showed a speeding motorcycle having the same registration number as Mr Jackson’s motorcycle. The photograph also depicted the rider of the motorcycle wearing similar apparel to that worn by Mr Jackson when he was found at the service station in Kaikoura just 15 minutes later. Taking those factors in combination, we consider the identification of Mr Jackson as the rider of the motorcycle depicted in the speed camera photograph to be proved beyond reasonable doubt.
The issue of the lawfulness of the detention was a secondary issue that raised questions of law rather than fact. Those questions could be determined without the need for any transcript of the evidence given in the District Court.
Finally, both parties were able to identify the circumstances that were relevant to the issue of whether the speeding was dangerous. Like Nation J, we do not see how a trial transcript could have assisted Mr Jackson to advance that ground further in the High Court.
We therefore do not consider there is any risk of a miscarriage of justice occurring if Mr Jackson is not permitted to bring a second appeal.
Result
The application for leave to bring a second appeal is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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