Round v The Queen - [2018] NZCA 155

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA581/2017
[2018] NZCA 155

BETWEEN	MARTIN CHARLES ROUND Applicant
AND	THE QUEEN Respondent

Hearing:	2 May 2018
Court:	Kós P, Brewer and Toogood JJ
Counsel:	Applicant in person E J Hoskin for Respondent
Judgment:	18 May 2018 at 10 am

JUDGMENT OF THE COURT

The application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

On 7 April 2017, Judge Bouchier convicted Mr Round on one charge of dangerous driving and one charge of driving with excess blood alcohol.[1] He appealed to the High Court and, on 10 August 2017, Gendall J dismissed his appeal because Mr Round, who was representing himself, failed to appear.[2]
[1]Police v Round [2017] NZDC 9303.
[2]Round v Police HC Christchurch CRI-2017-409-53, 10 August 2017.
Mr Round now applies for leave to appeal to this Court.[3]

Approach to the application

[3]Criminal Procedure Act 2011, s 237.

We may give leave to appeal only if the appeal involves a matter of general or public importance, or if a miscarriage of justice may have occurred, or may occur, unless the appeal is heard.
Mr Round’s submissions to us were concerned largely with the reason why he failed to appear for his appeal to the High Court on 10 August 2017. We will not assess his explanation (such assessment would be unlikely to assist Mr Round given the almost complete lack of evidence supporting the explanation). Instead, because there has been no appellate review of Mr Round’s convictions, we will assess whether there is proper cause for appellate review at this stage.
We are satisfied there is no matter of general or public importance to be argued. This was a straightforward trial of unexceptional charges. Indeed, Mr Round does not attempt to identify a matter of general or public importance. Therefore, our approach to Mr Round’s application will be to consider whether a miscarriage of justice may have occurred, or may occur, unless the appeal is heard.

Miscarriage of justice

The evidence called before Judge Bouchier was to the effect that Mr Round, apparently in the throes of road rage, repeatedly used his motor vehicle to ram the rear of the complainant’s vehicle. This was seen by a number of independent witnesses, including a station officer with the New Zealand Fire Service with some 31 years’ experience who was on duty at the time.
Mr Round did not remain at the scene of the incident. Instead, he drove home. Police officers attended at the scene and, a little over an hour after the incident,[4] arrived at Mr Round’s address. Mr Round invited the police officers to enter his home and voluntarily gave a statement as to his version of events. Afterwards, he showed the officers his vehicle and it was photographed. After that, a police officer asked Mr Round if he had consumed any alcohol that day. Mr Round’s response was that he had not…

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 Round v The Queen

Details

AGLC: Round v The Queen [2018] NZCA 155
Case: [2018] NZCA 155
Decision Date: 18 May 2018 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Martin Charles Round, the applicant, sought leave to appeal against his conviction for dangerous driving and driving with excess blood alcohol. The matter was heard by Kos P, Brewer, and Toogood JJ on 2 May 2018 and judgment was handed down on 18 May 2018. The applicant was represented in person while the respondent was represented by E J Hoskin. The central issue before the Court was whether the applicant's appeal should be granted leave to proceed given the failure to appear at the High Court. The Court was required to determine if the appeal involved a matter of general or public importance or if a miscarriage of justice may have occurred. The Court found that there was no matter of general or public importance to be argued and that the case did not involve any exceptional charges. The Court assessed whether a miscarriage of justice may have occurred and found that the applicant's evidence was rejected by the Judge as being fanciful and patently untrue. The Court held that the Judge was justified in rejecting the applicant's evidence given the clear evidence of eye witnesses and that there was no reasonable possibility of consumption of alcohol to an extent which may have caused a miscarriage of justice.

The Court declined the applicant's application for leave to appeal to the Court. The Court found that no matter of general or public importance had been identified and there was no indication of a miscarriage of justice. The applicant's application for leave to appeal is therefore declined.

Orders