Terry v Police
[2019] NZHC 1131
•23 May 2019
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2019-406-5
[2019] NZHC 1131
BETWEEN ROBERT FRANK TERRY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 May 2019 Appearances:
Appellant in Person
J W Cameron for Respondent
Judgment:
23 May 2019
JUDGMENT OF GRICE J
Introduction
[1] Mr Terry seeks leave to appeal a decision of the District Court dated 15 March 2019.1 That decision dealt with an appeal from a decision of Justices of the Peace in which Mr Terry was convicted and sentenced on one charge of failing to stop for a police car when using its lights or siren.2 The Justices of Peace fined Mr Terry $1,500 and imposed $130 court costs. The District Court Judge dismissed Mr Terry’s appeal against conviction but allowed his appeal against sentence, convicting and discharging Mr Terry.
1 Terry v Police [2019] NZDC 4742.
2 Land Transport Act 1998, ss 114(2) and 52(1)(a)(ii); maximum penalty of $10,000 fine.
TERRY v NEW ZEALAND POLICE [2019] NZHC 1131 [23 May 2019]
Background
Justices of the Peace
[2] Mr Terry was found guilty by two Justices of the Peace in the Blenheim District Court following a hearing on 6 September 2018 of failing to stop for a police car. The sentence imposed was a fine of $1,500 and payment of court costs of $130. At the hearing two prosecution witnesses were called, being the officer who apprehended and arrested Mr Terry and an officer who accompanied him at the time of the arrest. Mr Terry cross examined them both.
[3] The evidence before the Justices of Peace, offered by police, was that on 30 June 2018 at 11 pm they saw Mr Terry driving at below the 50 kilometres per hour speed limit and weaving over his lane. They suspected him of drinking, so they put on their lights to pull him over. Mr Terry did not pull over and continued to drive for over a kilometre before stopping. He was not speeding. The police said there were numerous earlier opportunities and places he could have pulled over that would have been safe although it was noted that part of the road did have dashed yellow lines indicating no stopping. After Mr Terry pulled over he was confrontational, aggressive and abusive. He was arrested and taken to the police station.
[4] Mr Terry, as is his right, elected not to give evidence at the defended hearing. He made submissions following the evidence. His argument was that he had been pulled over for a breath alcohol test, and the police could not then prosecute him for something else when he was found to have not been drinking. Mr Terry also argued that he had pulled over at the first available car park and so was not guilty of failing to stop. Mr Terry’s arguments were unsuccessful and he was convicted. The Justices of the Peace accepted the police’s evidence.
[5] The Justices of the Peace found that Mr Terry knew of the requirement to stop when the lights of a police car were flashing and Mr Terry could have stopped earlier but consciously chose not to. The elements of the charge were therefore proven beyond reasonable doubt.
District Court
[6] On appeal to the District Court, the Judge canvased various grounds of appeal relied upon by Mr Terry. The decision was comprehensive. The Judge concluded that no legal or factual errors were made by the Justices of the Peace and dismissed the appeal against conviction. In reviewing the sentence imposed by the Justices of the Peace, the Judge allowed the appeal due to Mr Terry’s limited means. He convicted Mr Terry and discharged him.
Standard of leave to appeal
[7]Section 237 of the Criminal Procedure Act 2011 relevantly provides:
(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.
[8] Mr Terry is therefore required to seek leave from this Court in order to appeal the District Court’s appeal decision.
[9] The following considerations are relevant to whether leave should be granted for a second appeal:
(a)Both limbs set out above have high thresholds.3
(b)Matters of general or public importance typically must raise such issues as principles that have broad application beyond the circumstances of a single case.4
3 Criminal Procedure Act, s 237(2)(a) and (b). McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
4 At [36].
(c)A court is slow to grant leave where it would mean reversing the concurrent findings of fact from the decisions below.5
Leave application
[10] Mr Terry made written and oral submissions in support of this leave application. Many of the submissions were focussed on wider issues than those engaged in the present convictions. Insofar as his submissions related to the present convictions they were directed at challenging the factual findings of the Justices of the Peace and the District Court Judge rather than advancing any legal principle.
[11] Mr Terry takes issue with the findings of the Justices of the Peace which were upheld by the District Court on appeal.
[12] Mr Terry had disputed that he had the opportunity to stop safely before he actually did. In addition, Mr Terry argued that the officer following him could not have properly observed him. Both the Justices of the Peace and the District Court Judge on appeal found against Mr Terry on these points. He said that these issues needed further “debate” in this Court. These are factual matters on which concurrent findings were made that pose no issues of general or public importance.
[13] Mr Terry also argued the officers failed to read Mr Terry his New Zealand Bill of Rights 1990 advice without delay. The Judge dealt with this in his decision:6
[18] Paragraphs 12 and 13: the police failed to read Mr Terry his New Zealand Bill of Rights Act advice at the roadside. It is implicit in the JPs’ decision that the defendant’s confrontational and abusive stance at the roadside resulting in a struggle, restraint and arrest impeded the New Zealand Bill of Rights Act advice being provided at the scene. But it was given upon arrival at the police station. When it was the defendant had indicated he understood the advice and did not require a lawyer. Further when he was initially stopped at the roadside it could not be said to be detention for the purpose of s 23 of the New Zealand Bill of Rights Act 1990. Thus there was no strict obligation to provide him with the opportunity to consult and instruct a solicitor without delay, at least initially. See Temese v Police [1992] 9 CRNZ 425 (CA). In any event he was shortly afterwards provided with such advice and did not avail himself of it. Nor did he make any inculpatory statement at the police station. No ground for miscarriage of justice arises thereby.
5 R (CA176/16) v Police [2016] NZCA 403 at [26]; Butler v Police [2016] NZCA 27 at [3].
6 Terry v Police, above n 1.
This ground was appropriately dealt with by the District Court on appeal. There is no justification for a further appeal on this basis.
[14] Mr Terry pointed to a typographical error in the recitation of the charge in the first iteration of the police written submissions before the Justices of the Peace. The error was a reference to “Picton” rather than referring to “Blenheim”.7 The District Court Judge specifically dealt with this point and found this ground had no weight. The Judge said:
[19] Various other grounds of appeal emerged in Mr Terry’s oral submissions including:
·A typographical error in the recitation of the charge in the first iteration of the police written submissions rendered those submissions incorrect and incompetent.
·The JPs’ reference to cases without providing Mr Terry with copies of those cases meant they could not properly or validly cite those cases in their decision.
·The JPs were wrong not to award him costs
None of those grounds carry any weight. Nor does anything else mentioned by Mr Terry in his oral or written submissions establish to a miscarriage of justice.
This ground was appropriately dealt with by the District Court on appeal. There is no justification for a further appeal.
[15] Mr Terry also raised that the matter was called on 25 July 2018 it was adjourned for a defended hearing. Mr Terry had been ready to proceed and says the adjournment should not have been allowed as it prejudiced him. That issue was also dealt with by the District Court on appeal as follows:
[14] Paragraph 10: because the Judge Alone Trial was not conducted on 25 July 2018 when it was first scheduled by a Judge then any subsequent trial was a nullity. Further that the defendant had attended at Court on 25 July 2018 and was ready to proceed on that day.
[15] I reject that submission. The record of hearing notes that on 9 July 2018 Mr Terry entered a not guilty plea to the charge and was remanded at large to 25 July 2018 at 10:00 am for a defended hearing. The record then
7 Mr Terry provided a copy of these submissions following the hearing in this court.
shows that on 12 July 2018 the Judge Alone Trial was rescheduled by a Deputy Registrar to 23 August 2018. The accompanying record notes:
Police advise a full day would be required. JPs have reshuffled their roster to accommodate hearing on 23 August 2018 at 10:00 am. Mr Terry personally given notice of hearing at Blenheim Court main counter 11:54 am 12 July 2018.
The record further notes on 13 July 2018:
Adjournment received from police – officer in charge of case unavailable on 23 August 2018 due to pre-arranged training in Wellington. Adjourned to 6 September 2018 for JAT one day to be allocated. (David Whyte JP).
[16] I find the defendant was never prejudiced by the earlier adjournment. The earlier adjournment was sanctioned by law with ss 167 and 168 Criminal Procedure Act 2011 providing a judicial officer and a Registrar powers to adjourn a case. In this case those powers were on the face of the record, properly exercised. The defendant was always kept informed. He was never prejudiced. He was at all times remanded at large without any strictures or bail conditions. He then duly appeared and defenced the charge on the trial date. No miscarriage of justice ever occurred on that basis.
This ground was appropriately dealt with by the District Court on appeal. There is no justification for a further appeal.
[16] Mr Terry also raised a number of separate matters such as the confiscation of his motor vehicle which are not before me in this leave application. I note the other remedies available to contest the impoundment. The District Court Judge noted:
[17] Paragraph 11: the impounding of Mr Terry’s motor vehicle was not constitutionally or ethically proper. I understand from Mr Terry that he has never received his vehicle back after it was impounded. However s 96(1AB) Land Transport Act provides that an enforcement officer may seize and impound a motor vehicle for 28 days if the officer believes on reasonable grounds that a person driving the vehicle has failed to stop as signalled, requested or required under s 114. I note that Mr Terry had rights of appeal pursuant to s 102 of the Land Transport Act 1998 against impoundment of the vehicle or a power of appeal against refusal of police to direct a release of an impounded vehicle pursuant to s 110 of the Land Transport Act. I am unaware if he has or is availing himself of either of those two avenues of redress. The only finding I make in this respect is that it does not amount to a miscarriage of justice in respect of the JP’s findings on this charge.
[17] Mr Terry also raised issues which appear to have no bearing on this case including some earlier, separate, incidents in which he and the police had been involved in Christchurch and in Blenheim. In addition, Mr Terry wanted to debate
with the Crown and the Court errors in nine Court of Appeal judgments which had been referred to by the Justices of the Peace. These issues have no bearing on the leave application here.
[18] Finally, Mr Terry also made more wide-ranging submissions relating to important issues such as the appointment of judges, the Bill of Rights and the Privy Council decision in Taito.8 While important, these issues are not directly engaged in this leave application.
Conclusion
[19] The application for leave to appeal raises no ground which are of general or public importance. A miscarriage of justice will not occur if the appeal is not heard. Therefore, the application for leave has not met the requirements for a second appeal. It is dismissed.
Grice J
Solicitors:
Crown Solicitor, Nelson
8 Taito v R [2002] UKPC 15, [2003] 3 NZLR 577.
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