Maddigan v Police
[2024] NZHC 1692
•25 June 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-37
[2024] NZHC 1692
BETWEEN FRASER WRIGHT MADDIGAN
Applicant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 30 May 2024 Appearances:
Applicant in person
B W D Alexander for the Respondent
Judgment:
25 June 2024
JUDGMENT OF HARLAND J
(leave for second appeal)
Introduction
[1] On 30 January 2023, while driving along Weka Pass Road on State Highway 7, the applicant Fraser Maddigan was stopped by a Police constable travelling at 99 km/h where it was alleged that the speed limit was 80 km/h. An infringement notice was issued against Mr Maddigan which he defended. Mr Maddigan’s case was heard before Justices of the Peace, who found the charge to have been proven, fined Mr Maddigan and ordered him to pay court costs. Mr Maddigan then appealed that decision to the District Court. The appeal was dismissed.1 Mr Maddigan wishes to appeal the District Court decision to this Court. He requires leave to do so, which the Police oppose.
1 Police v Maddigan [2024] NZDC 1237.
MADDIGAN v POLICE [2024] NZHC 1692 [25 June 2024]
[2] I am not satisfied the grounds for leave to appeal have been made out by Mr Maddigan. This judgment sets out my reasons for reaching this conclusion.
Legal principles
[3] Convictions are not recorded for infringement offences.2 Nonetheless, the Criminal Procedure Act 2011 (the Act) applies.3
[4]As a second appeal, s 237 of the Act applies, stating:
237 Right of appeal against determination of first appeal court
(1) A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.
(2) The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[5] The threshold for “matter of general or public importance” is high; the matter must be of importance in the administration of criminal law and have broad application beyond the circumstances of the case.4 An example of this is Ker v R where leave was granted for appeal concerning the elements of offensive behaviour under s 4 of the Summary Proceedings Act 1957.5
[6] “A miscarriage of justice” means any error, irregularity or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.6 The threshold for miscarriage of justice is high and not every error will amount to a miscarriage of justice.7 This Court will not interfere
2 Criminal Procedure Act 2011, s 375.
3 Summary Proceedings Act 1957, s 21(8)(d). Larason v Police [2021] NZHC 653 at [6], citing Warren v Police [2014] NZHC 2258. Both cases involved appeals against traffic infringements. Although Williams J in Warren did not cite s 21, he applied the same test under s 237 of the Criminal Procedure Act as the Crown proposes to do here and noted that, if leave is granted, the second appeal court is to determine the appeal on the same grounds as those that apply to first appeals under s 232(2) of the Criminal Procedure Act, as stated in s 240.
4 McAllister v R [2014] NZCA 175.
5 Ker v R [2015] NZCA 522.
6 Criminal Procedure Act, s 232(4).
7 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
with the factual determinations of the Justices of the Peace or the District Court absent a compelling basis for doing so.8 An example of this ground being made out is Cummings v Police where a failure to cross-examine a defendant on a key aspect of the case raised the risk of miscarriage of justice.9
Discussion
[7] In his notice of appeal to this Court, Mr Maddigan outlined the grounds for his appeal as follows:
(a) the Justices of Peace and the Judge on appeal dismissed the facts of the case without due and fair consideration;
(b) he was denied a fair trial due to the dismissal of key facts;
(c) the limited speed zone open road sign he claimed he saw indicated a 100 km/h speed limit on State Highway 7;
(d) the Court could not be satisfied beyond a reasonable doubt that the offence had been made out; and
(e) the Police officer lied in court about whether he had said to Mr Maddigan, when he was apprehended, that Mr Maddigan had been driving at a safe and acceptable speed.
[8]The Police oppose leave to appeal being granted because:
(a) none of the grounds of appeal advanced by Mr Maddigan point to any matter of general or public importance; and
(b) Mr Maddigan cannot establish that a miscarriage of justice may have occurred.
8 Clarke v Police [2015] NZCA 570 at [5].
9 Cummings v Police [2018] NZCA 340.
[9] It is difficult to assess whether there may be a miscarriage of justice without also briefly assessing the merits of the appeal, which I address shortly. But I accept counsel for the respondent’s submission that nothing raised on the appeal involves a matter of general or public importance, even though it is obviously a matter of importance to Mr Maddigan.
[10] It is important to note that the legal test that applies to a second appeal is different from the legal test that applies to a first appeal which, in this case, was from the decision of the Justices of the Peace to the District Court. In the case before the District Court Judge, s 232 of the Act applied. The Judge referred, correctly, to the law that applied to him in paras [2]–[11] of his judgment and, importantly, referred to the fact that, before him, the appeal proceeded by way of a rehearing and that he was required to form his own view of the facts and determine the appeal accordingly. He also noted that it was for Mr Maddigan, as the appellant in the District Court, to show that an error had been made.
[11]Mr Maddigan submitted the following before Judge Lynch:
(a) the Constable lied under oath, leading to an unfair trial; and
(b) the Justices of the Peace dismissed his evidence of the temporary open road speed limit sign “without accepting any proof” and that he was “not allowed to give crucial evidence”.
[12] The Police opposed the appeal and submitted that the matters Mr Maddigan referred to were subject to the evidence from Constable Hay and cross-examination and were considered by the Justices of the Peace in reaching their decision.
[13] The Judge then addressed the evidence that had been called before the Justices of the Peace and considered it in relation to their decision. He noted that the only issue at the hearing was Mr Maddigan’s belief that the zone he was travelling in was not 80 km/h, as he had accepted the time, date, place, identities and vehicles of all involved.
[14] The Judge then referred to the two witnesses who gave evidence before the Justices of the Peace, Constable Hay and Mr Maddigan.
[15] The Judge referred to Constable Hay’s evidence that he regularly patrolled the Weka Pass area, knew the section involved and that it was governed by an 80 km/h speed limit. The constable had acknowledged that, on the day, the conditions were good and the traffic was reasonable. The constable was parked with a rear antenna operating and captured Mr Maddigan’s vehicle travelling at 99 km/h. The constable stopped Mr Maddigan and told him that he was travelling in breach of the speed limit. The constable told the Court that Mr Maddigan had told him that he did not realise it was an 80 km/h zone, at which time the infringement notice was issued.
[16] In cross-examination, Mr Maddigan put to Constable Hay that he had told him that the conditions were safe to drive at 100 km/h, but Constable Hay could not remember saying that. Because it was important to Mr Maddigan, the Judge set out the relevant part of this evidence in his judgment.10 The Judge then noted the portion of the initial decision where the Justices of the Peace addressed that issue and concluded that, although the constable recalled the conversation, he could not recall the part of it where Mr Maddigan said the constable had conceded that travelling at 99 km/h was safe and applicable for that section of the road. In the paragraph in the Justices of the Peace decision, quoted by the Judge in his decision,11 they said “… but at the end of the day the constable couldn’t remember that part of the conversation”.
[17] The Judge then addressed the second part of Mr Maddigan’s defence that he was not aware that the section of road in question was an 80 km/h zone and he thought it had been at the open road speed limit (i.e. 100 km/h) for many years. But, as well as this, the Judge noted that Mr Maddigan had informed the Justices of the Peace that he was not aware that the speed had changed to 80 km/h because he had not driven the road for a number of years.12
[18] The Judge referred to Mr Maddigan’s evidence that, when he entered the highway from Timpendean Road, he saw a sign on the side of the road which allowed the open road speed limit and he had checked his phone and Google Maps which indicated that the section of road was 100 km/h.13
10 Police v Maddigan, above n 1, at [22].
11 At [23].
12 At [24].
13 At [25].
[19] The Judge then noted the cross-examination by the prosecuting sergeant in which Mr Maddigan agreed that the road may have been 100 km/h and there may have been a sign but he could not recall seeing it. The Judge also referred to Mr Maddigan’s admission that he did not informed the constable of the weed spraying he said he had seen or the open road speed limit sign.
[20]In relation to the Justices of the Peace’s decision, the Judge said:
[30] Ultimately, the JPs were satisfied that the prosecution had proved the matter beyond reasonable doubt and in making their assessment, took into account that Mr Maddigan did not mention the temporary open road speed limit sign, or the weed spaying [sic] contractors to the Constable when speaking to him on the day in question. The failure to do so mean the Constable was not afforded the opportunity to check for himself.
[31] Mr Maddigan was found guilty and ordered to pay a fine of $120.00 plus court costs.
[21] The Judge undertook his task of rehearing the matter on the evidence that had been called before the Justices of the Peace. He referred to the onus of proof and the need for the Police to prove the elements of the infringement offence beyond a reasonable doubt. The Judge then noted that the element in contention was whether the road was restricted to 80 km/h or 100 km/h.
[22] The Judge then referred to the exhibits that were produced at the hearing. He accepted that Mr Maddigan was travelling within a stretch of road that was zoned 80 km/h. He cross-referenced this to paras [9]–[10] of the Justices of the Peace’s decision and noted he agreed with their finding.
[23] The Judge then identified that the only remaining issue of fact was whether there was an open road speed sign on Timpendean Road where the weed spraying contractors were said to have worked. The Judge said:14
[38] The only question could be whether there was an open road speed sign on Timpendean Road where the weed spraying contractors were working as Mr Maddigan had said there was, meaning Mr Maddigan was not in error to be driving at 99 kilometres per hour, just inside what he thought the speed limit for the road was. Mr Maddigan spoke to this at the hearing of the appeal saying that on one side of the sign there was a 30 kilometre per hour temporary speed restriction but on the other as he was leaving Timpendean Road the open road sign, the one with the white circle with the black diagonal through it.
14 Police v Maddigan, above n 1.
[39] I am satisfied that the JPs adequately addressed this point in their decision and I refer to that reasoning here:
[12] the prosecution has to prove the matter beyond reasonable doubt… The fact of the matter is that you never mentioned to the Constable when you were speaking to him. You spoke about a lot of things but one of the things you didn’t recall speaking to him about was the fact that there was an open road sign on Timpendean Road that you had just been past. If that had been the case, the constable may well have been able to go and have a look himself or you could have said: “Come and have a look,” but you didn’t do that.
[24] As to Mr Maddigan’s accusation that the constable was lying, the Judge said he could see no evidence or suggestion of that in the transcript of the hearing before the Justices of the Peace. About this, he said the following:
[41] There is simply no evidence that Constable Hay was lying and the JPs, who were in the best position to assess credibility being able to both see and hear Constable Hay, were plainly satisfied by what the Constable’s evidence was, namely he could not remember the parts of the conversation that Mr Maddigan referred to.
[42] Either way, it does not appear that this would have had a material effect on the outcome given the fact that the issue Mr Maddigan took with Constable Hay’s memory was that Constable Hay had said that the conditions on the road meant it was safe to drive 100 kilometres per hour. In my assessment this would not have changed the outcome, given the JPs decision turned on whether Mr Maddigan had asserted to Constable Hay that he had seen the temporary open road limit sign and whether in fact there was a temporary open road limit sign where he said there was.
[25] Further, in relation to Mr Maddigan’s allegation that he was stopped or prevented from giving evidence about the temporary open road limit sign that he had seen, the Judge said this:
[43] There is nothing in the notes of evidence that indicate to me that Mr Maddigan was stopped or prevented from giving evidence on the temporary open road limit sign that he had seen. He was allowed to present his evidence in full, except where he went off onto unrelated matters, including Waka Kotahi’s decision to change the road speed and what the speed should be on that road based on the roads in the North Island. Even then, the JPs allowed him some leeway given he was self-represented and appropriately warned him several times before stopping him. I simply cannot accept this ground as having any merit.
[26] Having reviewed the Notes of Evidence from the Justices of the Peace’s decision, I concur with the Judge’s finding.
[27] The Judge next noted that the Justices of the Peace had recognised where the onus of proof lay and the standard of proof they were required to apply. He was
satisfied that the reasons for their decision, including accepting the prosecution evidence and rejecting Mr Maddigan’s argument, were clear and considered. The Judge agreed with the Justices of the Peace findings and said he would have come to the same conclusion himself based on the notes of evidence and the exhibits.
[28] The Judge then referred to matters he considered were irrelevant, which Mr Maddigan had raised on appeal. These included that his speed was not unsafe, that the weather was clear and fine and that there were no schools, driveways or the like that might have presented some hazard. Mr Maddigan’s suggestion that the new government might revert the speed limit back to 100 km/h and his view that his speed was not deserving of an infringement fee, or demerit points, was also considered by the Judge to be irrelevant, which is undoubtedly correct.
[29]But further, the Judge said:
[47] … Mr Maddigan told Constable Hay from the get-go he did not see the 80 kilometre per hour sign. If Mr Maddigan truly thought the temporary open road speed limit sign applied he would have told Constable Hay that. My fix on Mr Maddigan, from how he conducted himself at the hearing before the JPs and before me (steadfast but polite), is that he would not have held back from telling the Constable what the position was.
[30] The Judge concluded that the Justices of the Peace did not err in their assessment of the evidence and there had not been any miscarriage of justice. He therefore dismissed the appeal.
[31] Judge Lynch undertook a thorough review of the evidence and provided detailed reasoning for his conclusion. Further, the proposed appeal to this Court seeks directly to relitigate factual findings made in the courts below. There is nothing in this appeal that challenges the settled legal principles that apply in this case. Leave will generally be declined where an application such as this raises issues in the nature of factual assessments that are specific to the circumstances of the case.15
[32] There was sufficient evidence before the Justices of the Peace to conclude that the speed limit was in fact 80 km/h and both the Justices of the Peace and Judge Lynch
15 For example: Butler v Police [2016] NZCA 27 at [3]; R(CA176/2016) v Police [2016] NZCA 403 at [26].
were entitled to prefer the prosecution evidence to Mr Maddigan’s account, which was based on a set of circumstances that were not put to the constable.
[33] Further, the matters raised by Mr Maddigan regarding whether his speed was safe and appropriate is irrelevant to the elements of the offence. A person may be travelling at a speed that is safe and appropriate but is nonetheless not lawful, which is the matter in issue in this case. So regardless of whether Mr Maddigan’s assertion that the constable was lying was correct, this would have made no difference to the outcome. In fairness to the constable however, I note that this assertion by Mr Maddigan was not accepted by the Justices of the Peace, or the Judge, and their conclusion on this was one they were entitled to make.
[34] No error is apparent in the Judge’s careful reasoning. The high threshold for a grant of leave to bring a second appeal is not met. There is, in my view, no discernible risk of a miscarriage of justice if the proposed appeal is not heard. In my view, Mr Maddigan simply wishes to relitigate the same arguments already advanced below. Both decisions have scrutinised the evidence and reached the same conclusions about it. There is no basis for requiring a third court to reconsider it.
Result
[35]The application for leave to bring a second appeal is dismissed.
Harland J
Solicitors:
Raymond Donnelly & Co., Christchurch
Copy to:
F W Maddigan, Applicant.
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