Jackson v Police - [2018] NZCA 194

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA76/2017
[2018] NZCA 194

BETWEEN	TIMOTHY JOHN JACKSON Appellant
AND	NEW ZEALAND POLICE Respondent

Court:	Williams, Venning and Mander JJ
Counsel:	Appellant in person M H Cooke for Respondent
Judgment: (On the papers)	14 June 2018 at 4.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

On 20 December 2015 a speed camera recorded Mr Jackson travelling at 145 km/h in an 80 km/h area south of Kaikoura. The officer operating the speed camera conveyed information regarding the offending, including the registration number of Mr Jackson’s motor bike, to a duty officer in Kaikoura. Another police officer then located and spoke to Mr Jackson while he was stopped at a petrol station in Kaikoura. The police officer took photographs of Mr Jackson’s motor bike, his clothing and gear. Mr Jackson was charged with driving a motor vehicle on a road at a speed which (having regard to the circumstances) might have been dangerous to the public.
The issue before the District Court was whether there was sufficient admissible evidence of identity and if there was, whether the speed was dangerous in all the circumstances. After a defended hearing, Judge DJL Saunders found the charge proved.[1] He subsequently fined Mr Jackson $800, ordered him to pay Court costs of $130 and disqualified him from driving for the minimum mandatory period of six months.[2]
[1] Police v Jackson [2016] NZDC 16002.
[2]Police v Jackson [2016] NZDC 17112.
Mr Jackson appealed his conviction to the High Court. Due to a technical failure there was no record of the District Court hearing available for transcription. The District Court Judge provided his own notes of the hearing. In addition to the Judge’s notes, the High Court had Judge Saunders’ judgment and sentencing notes. The photographs and other exhibits produced in the District Court were also available.
The procedural issues did not end with the lack of a transcript. As this Court recorded in the leave decision, a degree of confusion arose as to how the appeal was to be dealt with.[3] The High Court was mistakenly under the impression Mr Jackson had consented to his appeal being dealt with on the papers. Dunningham J delivered a fully reasoned decision dismissing the appeal on the papers.[4]
[3] Jackson v Police [2017] NZCA 374.
[4]Jackson v Police [2017] NZHC 37.
Mr Jackson then applied for leave to bring a second appeal against conviction. Mr Jackson argued that a miscarriage of justice had occurred because:
(a)he had not agreed to the appeal being heard on the papers; and
(b)the Court erred in finding that a rehearing was not required.
In a judgment delivered on 29 August 2017 this Court granted Mr Jackson’s application for leave to bring a second appeal.[5] The Court considered that s 330 of the Criminal Procedure Act 2011 (the Act) mandated that the appeal to the…

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 [2018] NZCA 194
Case: [2018] NZCA 194
Decision Date: 14 June 2018 at 4.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Timothy John Jackson against his conviction and sentence for driving at a speed which might have been dangerous to the public. The conviction arose from an incident where Jackson was recorded travelling at 145 km/h in an 80 km/h zone by a speed camera. The District Court found Jackson guilty and imposed a fine, costs, and a six-month driving disqualification. Jackson first appealed to the High Court, which dismissed his appeal on the papers due to a lack of a transcript from the District Court hearing. Jackson subsequently applied for leave to bring a second appeal, arguing that the High Court's determination on the papers was improper and resulted in a miscarriage of justice. The Court of Appeal granted leave for the second appeal and directed that the appeal be heard on the papers.

The legal issues before the Court of Appeal were whether the High Court had jurisdiction to determine the appeal on the papers and if the procedural error led to a miscarriage of justice or a nullity. The Court noted that under the Criminal Procedure Act 2011, the first appeal to the High Court must be dealt with by way of an oral hearing, and the failure to conduct such a hearing rendered the appeal a nullity. The Court examined whether this procedural error led to a miscarriage of justice or nullity, but found no grounds under the Act for allowing the appeal. The Court concluded that while the first appeal hearing was a nullity, it did not affect the validity of the District Court's trial, and therefore dismissed the appeal.

The Court of Appeal dismissed Jackson's second appeal against conviction, finding that the procedural error in the High Court did not result in a miscarriage of justice or render the District Court's trial null. The Court noted that any remedy for the procedural error could be sought through a rehearing of the first appeal in the High Court. The appeal is dismissed, and no further orders are made.

Orders