Terry v Christchurch City Council
[2015] NZHC 1340
•12 June 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-25 [2015] NZHC 1340
BETWEEN ROBERT FRANK TERRY
Appellant
AND
CHRISTCHURCH CITY COUNCIL Respondent
Hearing: 9 June 2015 Appearances:
Appellant in Person
S Brookes for RespondentJudgment:
12 June 2015
JUDGMENT OF MANDER J
[1] Mr Robert Terry has made an application for leave to appeal the dismissal of a first appeal from a finding that a parking infringement offence had been proven against him. On his appeal before Judge Garland in the District Court,1 Mr Terry was partially successful. A $140 fine was set aside and, in its place, the sum of $40 substituted. His appeal was, however, otherwise dismissed.
Background
[2] On 14 January 2015, Mr Terry parked his vehicle on Montreal Street, Christchurch. The vehicle was in a “Pay and Display” area, however, Mr Terry failed to display the required parking receipt. A parking warden noticed the
omission, and issued an infringement notice.
1 Terry v Police [2015] NZDC 3466.
TERRY v CHRISTCHURCH CITY COUNCIL [2015] NZHC 1340 [12 June 2015]
[3] Mr Terry sought to defend the matter. The charge was found proven at what was to be the first of two hearings before Justices of the Peace. Mr Terry successfully appealed that decision before Judge Couch, and the matter was referred back for a rehearing. That resulted in a similar outcome, in respect of which Mr Terry again appealed. It is against the subsequent dismissal of that appeal by Judge Garland that leave is sought to commence a second appeal.
[4] Upon Mr Terry’s receipt of the infringement notice, he filed a request to defend the matter. He was advised by the Christchurch City Council (the council) on
12 May that, in due course, a defended hearing would be allocated, and he would be advised of the details. On 14 June, Mr Terry wrote to the Mayor of Christchurch. In that letter, Mr Terry refers to the fact that, on 14 January 2014, he was attending Court, and that he ought not to have received a parking ticket when his presence was required in the Court. The letter was to become a key piece of evidence.
[5] In allowing Mr Terry’s first appeal, Judge Couch observed that the Justices of the Peace had erred in finding the charge proved when no evidence had been adduced linking Mr Terry to the illegally parked vehicle. On his appeal before Judge Garland, Mr Terry maintained that the council had again fallen into the same error, and that, even in its second attempt to prosecute him, the council did not adduce sufficient evidence to link him with the unlawfully parked motor vehicle.
[6] The letter that Mr Terry wrote to the Mayor was produced as an exhibit at the rehearing of the infringement notice. This evidence was not challenged by Mr Terry at the time it was produced. On appeal, Judge Garland considered the letter provided a sufficient nexus between Mr Terry and the illegally parked car. In that letter, Mr Terry stated:
On 14 January 2014, at 2 pm, I was attending the Christchurch Court under the Summary Proceedings Act 1957. No appointed judicial officers would uphold the case against the defendant when the defendant must attend court to answer this charge. I request a defended hearing.
The District Court’s decision
[7] Judge Garland considered this was sufficiently cogent evidence to establish that Mr Terry was in control of the vehicle at the time the illegal parking occurred.
He considered the letter written by Mr Terry to the council effectively conceded that he had driven the vehicle and parked it there to attend Court.
[8] Judge Garland accepted that it was a reasonable inference for the Justices of the Peace to draw from the letter adduced in evidence that Mr Terry was attending Court on 14 January when, upon his return to his motor vehicle, he found the infringement notice. Mr Terry’s letter was to the effect that it was unreasonable for the council to issue the infringement notice in relation to his vehicle when he was required to be in Court at that time. Judge Garland was therefore satisfied that there was circumstantial evidence from which the lower Court was entitled to infer that Mr Terry was the driver, or the person in charge of the motor vehicle unlawfully parked.
[9] In terms of Mr Terry’s substantive point, that he ought not be liable for the infringement penalty because he was in Court and would have been required to ask the Court’s permission to leave in order to go and pay the parking fee, Judge Garland observed that this was the same for all persons who appear before the Court. It did not provide an excuse for not displaying a valid parking receipt.
The right of appeal against determination of a first appeal Court
[10] This proceeding originated before Justices of the Peace. From their decision, the District Court was the first appeal Court.2 Mr Terry has the right to seek the leave of this Court, as the second appeal Court, to appeal the decision of the District Court.3 Mr Terry, however, requires leave to do so. Section 237 of the Criminal Procedure Act 2011 provides:
237 Right of appeal against determination of first appeal court
…
(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
2 Criminal Procedure Act 2011, s 230(a).
3 Section 237(1).
(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[11] The requirement that the Court be satisfied of one of the two preconditions before granting leave gives rise to no onus or standard of proof.4 The Court is required “to undertake an evaluation of all relevant matters and reach a judgment as to whether or not [it] is satisfied”.5
[12] In McAllister v R the Court of Appeal confirmed that the test for leave to bring a second appeal under the Criminal Procedure Act 2011 has now largely been aligned with the test contained in s 13 of the Supreme Court Act 2003.6 The opposed appeal must give rise to an issue of “general principle or of general importance in the administration of the criminal law by the Courts”. An illustration of a matter of general or public importance is one raising an important question of law having broad application beyond the circumstances of the particular case.7
[13] In terms of the miscarriage of justice limb, the Court of Appeal observed that the test to be applied is not prescriptive, however, it may include a situation where an argument is reasonably available that the Court below is in error.8
Alleged grounds for leave
[14] Mr Terry challenges the reliance placed upon his letter to the Mayor which he submitted was adduced by the prosecution without his “permission”. Further, he submits that in the absence of formal evidence regarding legal ownership of the vehicle, the council failed to present the correct evidence, and this was fatal to its case.
[15] Secondly, Mr Terry points to errors in the record of Judge Garland’s decision which variously describe the motor vehicle registration number as PTP154 and BPT154, when the correct registration number, as referred to in the infringement
notice, is BTP154.
4 R v A [2009] NZCA 380at [10]..
5 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [42].
6 Above n 4, at [32].
7 At [36].
8 At [37].
The council’s position
[16] The council submits that Mr Terry’s application for leave does not identify a matter of general public importance, nor an error capable of constituting a miscarriage of justice. In relation to the issue of ownership, the council submits there was sufficient evidence adduced before the Justices of the Peace in respect of this issue, and that Judge Garland was correct in concluding that an inference was able to be drawn from Mr Terry’s letter that the ticketed vehicle was his.
[17] The council submits that s 27(1) of the Evidence Act 2006 provides that evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that person. Mr Terry’s “permission” was not required, and there could be no suggestion that the communication was confidential or privileged.
Decision
[18] Insofar as the vehicle registration number was incorrectly recorded in some parts of Judge Garland’s decision, I accept the council’s submission that this is a typographical error. The correct registration number was referred to in other parts of the Judge’s decision. Mr Terry, while identifying this error in his written submissions, did not really contest that the errors were other than typographical.
[19] In any case, the erroneous recording of the registration number does not change the District Court’s findings. Judge Garland’s reasoning remains intact, and the identified error cannot give rise to an arguable miscarriage of justice.
[20] In relation to the more substantive point argued by Mr Terry, relating to the council’s reliance on his letter to prove his connection with the vehicle, I am satisfied Judge Garland’s analysis of the way in which the letter was able to be used to draw such an inference was available to him. His finding that the Justices of the Peace were able to reasonably rely on that evidence as proof of that element of the infringement offence was not unreasonable.
[21] Importantly, I am satisfied that this issue, which Mr Terry seeks to pursue on a second appeal, is not capable of constituting a matter of general public importance. Further, I am satisfied there is no reasonably available argument available to Mr Terry relating to the inference to be drawn from the letter produced in evidence, which is capable of successfully establishing that a miscarriage of justice has occurred in the circumstance of his case.
[22] It therefore follows that Mr Terry’s application for leave is declined.
Costs
[23] Mr Terry pursued costs in relation to his application for leave. The issue of costs was the subject of some discussion before the District Court. On that occasion, it was the council seeking costs. The council’s application was declined by Judge Garland, on the basis that the prosecution had been afforded two opportunities to prosecute Mr Terry in circumstances where it had failed to prove a basic element of the offence on the first occasion, and had very nearly committed the same error at the rehearing.
[24] Mr Terry achieved some success in his appeal to the District Court, with the fine imposed by the Justices of the Peace being one greater than the original infringement penalty.9 It was reduced from the sum of $140 to $40. An order for costs imposed before the Justices of $30 stood.
[25] Mr Terry has been unsuccessful in his application for leave to commence a second appeal. There is no basis upon which he is entitled to an award of costs. Insofar as the matter resulted in Mr Terry having to appear before the Courts on three separate previous occasions, those circumstances were the subject of considerations by Judge Garland. Mr Terry has already received the benefit of the Court refusing to award costs in favour of the council at the conclusion of his unsuccessful appeal
from the finding against him on the rehearing of the infringement notice.
9 Interfreight Limited v Police [1997] 3 NZLR 688 (CA).
[26] Mr Terry’s application for costs is declined.
Solicitors: Buddle Findlay
0