T v Police HC Christchurch Cri-2010-418-5

[2010] NZHC 2172

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-418-000005

T

Applicant

v

POLICE

Respondent

Hearing:         25 November 2010

Appearances: Applicant in person

T Mackenzie and A Raj for Respondent

Judgment:      25 November 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      Mr T   was charged  with failing to  stop at  a stop sign.    Following a defended hearing in the District Court, the District Court Judge found the charge proved and imposed a sentence of a $100 fine.

[2]      Mr T   then appealed both the fine and the finding that the charge had been proven.  I heard the appeal and, on 3 September 2010, delivered a decision in which

I dismissed the appeal.

TERRY V POLICE HC CHCH CRI-2010-418-000005  25 November 2010

[3]      Mr T   now wishes to appeal my decision to the Court of Appeal.  In order to be able to do that he requires leave under s 144 of the Summary Proceedings Act

1980.

[4]      Before leave can be granted under s 144:

i)        There must be a question of law.

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

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

[5]      It is well established that s 144 is not intended to provide a second tier of appeal from the District Court, and that neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted: see R v Slater [1977] 1 NZLR 211. There is a high threshold before leave can be granted.

[6]      Mr  T  ’s  written  notice  of  application  formulated  two  questions  for submission to the Court of Appeal:

Question of Law. Para [7]. In this decision the judge rejected Mr T ’s evidence and accepted Constable Tisley’s version of events. He found that the elements of the charge proven beyond Reasonable Doubt?

Question of General Importance.

The District Court Judges acceptance of evidence presented by the N.Z. Police is fatally flawed by the High Court Judges own analysis  Para [15]

[7]      At this morning’s hearing Mr T   advanced further issues he wishes to raise with the Court of Appeal:

i)That evidence as to the date of the alleged offending was only elicited from the police constable by way of a leading question from the police prosecutor.

ii)That the stop sign in question was not there legally, because there should not have been a stop sign on a highway.

iii)That he is intending to adduce new evidence regarding the location of the police constable at the time of the alleged offence.   Mr T   told me he is endeavouring to obtain affidavit evidence from a person who was at the scene.

[8]      As regards the issue of the date of the offending, the difficulty with Mr T  ’s argument is that the date was never in issue.   Further, he himself gave evidence acknowledging that he was there on that day.  The issue was as to whether or not he had failed to stop, as alleged.

[9]      Further, as regard the issue about the stop sign, there is neither any evidence nor any legal authority to support the proposition.

[10]     I am satisfied that the questions raised in the written notice of application and the proposed new evidence do not amount to questions of law.  Nor do I accept that the questions raised are questions of general importance.   While they may undoubtedly be important to Mr T  , that is not the test.

[11]     I am satisfied the application does not satisfy the criteria required by s 144. Accordingly, I am not prepared to grant leave.  The application is dismissed.

Solicitors:

Crown Solicitor’s Office, Christchurch

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