Jackson v Police - [2018] NZHC 2297

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000061

[2018] NZHC 2297

BETWEEN
TIMOTHY JOHN JACKSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 August 2018

Appearances:

Appellant in person

C J Bernhardt for the Respondent

Judgment:

3 September 2018

JUDGMENT OF NATION J

[1] On 20 December 2015, a speed camera recorded a motorcycle travelling at 145 km/h through a signposted 80 km/h area on State Highway 1, approximately 20 km south of Kaikoura. On 7 July 2016, Mr Jackson was convicted of driving his motorcycle at a speed which, having regard to all the circumstances of the case, 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] Mr Jackson appealed his conviction to the High Court. He was granted a stay of the sentence on or about 26 August 2016 until such time as the appeal was either heard and determined or abandoned, whichever was earlier. The appeal was set down for hearing on 8 November 2016. On 11 October 2016, the High Court advised Mr Jackson and the Police that the District Court was unable to produce a record of the

1 Land Transport Act 1998, s 35(1)(b).

JACKSON v POLICE [2018] NZHC 2297 [3 September 2018]

evidence given at the District Court trial. Mr Jackson, a lawyer, filed a memorandum setting out his submission that, given there was no record of the trial notes, his appeal should be disposed of by way of an order for a rehearing. He suggested, if the High Court agreed, the matter could be dealt with on the papers. The same memorandum included detailed submissions as to the merits of the appeal.

[3] Dunningham J considered the appeal on the basis Mr Jackson had agreed it should be dealt with through consideration of the written submissions that had been filed without a further hearing. She dismissed the appeal.

[4] The formal notice of the Court’s decision of 26 January 2017 advised Mr Jackson that the appeal was dismissed and “disqualification is to resume from 12.00 am 27 January (was deferred pending appeal outcome)”. Mr Jackson served the period of disqualification and paid the fine and Court costs.

[5]Mr Jackson applied for leave to bring a second appeal to the Court of Appeal.

[6] In a judgment of 29 August 2017, the Court of Appeal granted leave to appeal because there had not been a hearing with oral submissions, as they held was required by s 330 Criminal Procedure Act 2011. The Court stated that a second appeal in the Court of Appeal would cure the error that arose when Mr Jackson’s first appeal was decided on the papers in the High Court. The hearing of the appeal in the Court of Appeal would be an opportunity for Mr Jackson to say that the Judge was wrong in deciding…

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] NZHC 2297
Case: [2018] NZHC 2297
Decision Date: 3 September 2018

CaseChat Overview and Summary

In Jackson v Police, the appellant appealed against his conviction for dangerous driving. The appeal was dismissed by Dunningham J. The Court of Appeal found that Dunningham J had erred in determining the appeal on the papers and quashed her judgment. It then invited the respondent to consider whether the absence of an adequate evidential record from the District Court might compromise the appeal to such an extent that the substantive issues raised by Mr Jackson on his appeal might not be able to be determined. The respondent did not consider this was appropriate. The Court of Appeal determined Dunningham J’s judgment was a nullity because of the way the High Court was in error in determining the appeal on the papers. The Court held that it was not a situation where the Court of Appeal could determine an appeal as provided for in s 240 Criminal Procedure Act. It indicated the error that had occurred in the way the High Court had dealt with the case previously could be addressed through a rehearing of the appeal in the High Court. The rehearing took place on 2 August 2018. The appellant argued that, as a result of the absence of a transcript, he was unable to sufficiently mount the appeal. The Court held that the appellant’s submissions on appeal did not establish that the absence of a trial transcript was grounds for allowing an appeal. The Court found that the appellant was the rider of the motorcycle recorded travelling at 145 km/h in an 80 km/h area just short of the access way to a camping ground area. There was also a proper evidential basis on which the Judge could find that the speed at which the appellant was travelling might have been dangerous to the public. The appeal was therefore dismissed.

Orders