Larason v Police

[2012] NZHC 259

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000244 [2012] NZHC 259

JEROME LARASON

Appellant

v

POLICE

Respondent

Hearing:         23 February 2012

Appearances: A Bailey for Appellant

A Raj for Respondent

Judgment:      23 February 2012

ORAL JUDGMENT OF HON JUSTICE FRENCH

[1]      Mr Larason was found guilty by two Justices of the Peace of failing to stop at a stop sign.

[2]      He appealed that decision to this Court.  I heard the appeal and dismissed it.[1]

[1] Larason v Police HC Christchurch CRI-2010-409-000244, 21 October 2011.

Mr Larason now seeks to in turn appeal my decision to the Court of Appeal. [3]      In order to do that he requires leave.[2]

[2] Summary Proceedings Act 1957, s 144.

[4]      It is well established that in order to obtain leave there are three requirements,

following Slater:[3]

[3] R v Slater [1997] 1 NZLR 211 (CA).

LARASON V POLICE HC CHCH CRI-2010-409-000244 [23 February 2012]

i)        The matter which is sought to be submitted to the Court of

Appeal must be a question of law.

ii)The question must be one which by reason of its general and public importance or any other reason ought to be submitted to the Court of Appeal

iii)The  Court  must  be  of  the  opinion  that  it  ought  to  be  so submitted.

[5]      It is clear from the authorities that a second appeal should be reserved for special circumstances and that the threshold for gaining leave is a high one.

[6]      Mr Larason appeared for himself both in the District Court and before me. He also prepared and filed a list of the questions he wanted submitted to the Court of Appeal.

[7]      Correctly analysed, however, the questions formulated largely related to my treatment of the evidence.  They were not questions of law but fact-specific.

[8]      Since filing the notice, Mr Larason however has taken legal advice and is now represented by Mr Bailey.

[9]      Mr Bailey has narrowed the proposed questions to one, as follows:

Whether for the purposes of an alleged breach of the Land Transport (Road User) Rule 2004 („the Rules‟) involving a controlled intersection a prosecution can succeed in the absence of a record of the relevant road controlling authority having approved the installation of the traffic control device.

[10]     The question relates to an issue regarding the production of the gazette notice authorising the stop sign.  The relevant parts of my judgment were:

[18]      At the hearing, the prosecution called the Canterbury manager of the New Zealand Transport Agency, Mr Spowart.  He testified that the Agency‟s asset management database shows the intersection in question listed as a

compulsory stop sign-controlled intersection and that it met the relevant criteria to qualify as such.

[19]     In cross-examination, Mr Spowart acknowledged that the Agency‟s computerised list of gazetted intersections does not include this intersection, but explained the gazetting was likely to have pre-dated computer records. He also acknowledged he had been unable to find any other record, computerised or otherwise, of the gazetting, but that did not mean it had not been done.  He stated “a lot of signs” had been gazetted by local authorities.

[20]      The police also called evidence that the reason they had been unable to produce a copy of the gazette notice was because the relevant records had been stored in a warehouse which had been destroyed by fire.

[21]     In those circumstances, I consider the absence of any documentary evidence of gazetting was not fatal to the police case.   The Justices were entitled to infer that all the relevant paperwork had been undertaken.

[11]     Mr Bailey submitted that it is in the public interest that the proposed question be submitted to the Court of Appeal because it would significantly assist the lower Courts as to whether a record of the controlling authority authorising the traffic control in question is required for a successful prosecution.

[12]     It  is  inherent  in  the  question  that  the  proposition  being  advanced  is  an absolute  one,  namely that  in  every single  case  the  prosecution  must  produce  a written record of the authority, otherwise the prosecution must fail.

[13]     In my view that is not a tenable proposition.   All would depend on the particular facts.

[14]     It follows that if I have erred in my decision, my error consists simply in wrongly analysing the evidence of this particular case.  The question proposed is, in reality, fact-specific and in those circumstances, in my view, it does not satisfy the requirements for granting leave.

[15]     It follows that the application for leave is dismissed.

Solicitors:

A Bailey, Christchurch

Crown Solicitor‟s Office, Christchurch