Jackson v Police - [2017] NZCA 374

IN THE COURT OF APPEAL OF NEW ZEALAND

CA76/2017
[2017] NZCA 374

BETWEEN	TIMOTHY JOHN JACKSON Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	22 June 2017
Court:	Clifford, Lang and Mander JJ
Counsel:	Applicant in person M H Cooke for Respondent
Judgment:	29 August 2017 at 4 pm

JUDGMENT OF THE COURT

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

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

The applicant, Timothy Jackson, was convicted following a Judge-alone trial in the District Court on a charge of driving a motor vehicle on a road at a speed which (having regard to the circumstances) might have been dangerous to the public.[1] Mr Jackson was subsequently fined $800, ordered to pay Court costs of $130, and disqualified from driving for the minimum mandatory period of six months.[2]
[1]New Zealand Police v Jackson [2016] NZDC 16002 [Jackson (DC)].
[2]New Zealand Police v Jackson [2016] NZDC 17112 at [3].
Mr Jackson appealed his conviction, but not his sentence, to the High Court. That appeal was dismissed by Dunningham J.[3] Mr Jackson now applies for leave to bring a second appeal against his conviction. Mr Jackson, a solicitor, represented himself before us, as he had done in both the District Court and the High Courts
[3]Jackson v New Zealand Police [2017] NZHC 37 [Jackson (HC)].
This Court considered the approach to applications for leave to bring a second appeal in McAllister v R.[4] We return to that decision below. We note at the outset these comments from that decision:
[46] Before we turn to the present application we should explain that we have dealt with the merits in some detail because it was a combined hearing. However, we envisage that when reasons are required to be given when dealing with leave only on these applications, we will usually give our reasons “briefly and in general terms” as envisaged by r 5I of the Court of Appeal (Criminal) Rules 2001.
(Footnotes omitted.)
[4]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
Given the issues raised by Mr Jackson, and the history of this matter, we have found it necessary to record our judgment in more detailed and lengthy terms than is normal.

Mr Jackson’s conviction

In the early afternoon of Sunday 20 December 2015 a police speed camera was operating on State Highway 1, approximately 20 km south of Kaikoura. At 1.46 pm that speed camera took a photo of a motorbike travelling north towards Kaikoura at 145 kph.
Later that afternoon a Senior Constable, coincidentally also named Jackson, spoke to Mr Jackson in Kaikoura, at the BP Service Station on State Highway 1. Mr Jackson was subsequently charged with dangerous driving. His Judge-alone trial took place in the District Court on 7 July 2016. Mr Jackson acknowledged he had been riding his motorbike on that part of State Highway 1 at about the time the photograph was taken. He defended the dangerous…

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 [2017] NZCA 374
Case: [2017] NZCA 374
Decision Date: 29 August 2017 at 4 pm

CaseChat Overview and Summary

In Jackson v Police, Timothy John Jackson sought leave to bring a second appeal against his conviction for dangerous driving. The case originated from a District Court trial where Jackson was found guilty of driving a motorbike at a speed which might have been dangerous to the public. Jackson was fined and disqualified from driving for six months. He initially appealed to the High Court, arguing that the evidence was insufficient to establish his identity as the person photographed by the speed camera, and that the lawfulness of his detention by a police officer was in question. The High Court dismissed his appeal, holding that the evidence was sufficient to identify Jackson and that the officer acted lawfully.

Jackson now seeks leave for a second appeal to the Court of Appeal, arguing that his first appeal was incorrectly heard on the papers without his consent, and that the High Court erred in not ordering a rehearing. The Court of Appeal considered the application, noting that the leave provisions for second appeals under the Criminal Procedure Act 2011 allow for appeals on the basis of a potential miscarriage of justice or matters of general or public importance. Jackson did not argue the latter, focusing instead on the error in the handling of his first appeal.

The Court held that the error in not providing Jackson with an oral hearing on his first appeal constituted a breach of his natural justice rights, as required by statute and the New Zealand Bill of Rights Act 1990. This procedural error created a real risk that the outcome of the appeal was affected. Additionally, the Court suggested that the absence of a proper evidential record from the District Court might compromise the appeal, potentially necessitating a retrial.

Consequently, the Court granted Jackson leave to bring a second appeal against his conviction, allowing him an opportunity to argue the substantive issues before the Court of Appeal. The decision highlights the importance of procedural fairness in the appellate process and the potential consequences of errors in handling appeals.

Orders