Terry v Police - [2019] NZHC 1131

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…

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.

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Details

Case: [2019] NZHC 1131
Decision Date: 23 May 2019

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether Mr. Terry, an appellant, could appeal the District Court's decision to dismiss his appeal against conviction but allow his appeal against sentence. Mr. Terry was convicted by Justices of the Peace of failing to stop for a police car when using its lights or siren and was fined $1,500 and imposed $130 court costs. Mr. Terry appealed to the District Court, which dismissed the appeal against conviction but allowed the appeal against sentence, convicting and discharging Mr. Terry. Mr. Terry sought leave to appeal the District Court's decision.

The legal issue was whether Mr. Terry's application for leave to appeal met the requirements for a second appeal under section 237 of the Criminal Procedure Act 2011. The High Court held that Mr. Terry's application did not meet the requirements for a second appeal as it did not involve a matter of general or public importance, nor did it demonstrate a miscarriage of justice. The High Court noted that the application for leave to appeal raised no ground which were of general or public importance and that a miscarriage of justice would not occur if the appeal was not heard. Therefore, the application for leave to appeal was dismissed.

The High Court of New Zealand dismissed Mr. Terry's application for leave to appeal the District Court's decision. The Court held that the application for leave to appeal did not meet the requirements for a second appeal under section 237 of the Criminal Procedure Act 2011 as it did not involve a matter of general or public importance nor did it demonstrate a miscarriage of justice.

Orders