Terry v Police
[2015] NZHC 1746
•28 July 2015
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CRI 2015-406-6 [2015] NZHC 1746
BETWEEN ROBERT FRANK TERRY
Applicant
AND
NEW ZEALAND POLICE Respondent
Hearing: 28 July 2015
(Heard at Wellington)
Counsel:
Applicant in Person
A J Riddell for RespondentJudgment:
28 July 2015
JUDGMENT OF SIMON FRANCE J
[1] Mr Terry seeks leave under s 237(1) of the Criminal Procedure Act 2011 to bring a second appeal. The matter concerns a speeding ticket he defended before two Justices of the Peace. He was “convicted” and fined $80 together with $30 costs. Mr Terry appealed unsuccessfully to the District Court.1
[2] The circumstances advanced by the prosecution were that a police officer was travelling in the opposite direction and recorded Mr Terry as travelling at 65 kph.
The officer made a U-turn and required Mr Terry to pull over, which he did.
1 Terry v NZ Police [2015] NZDC 9950.
TERRY v NZ POLICE [2015] NZHC 1746 [28 July 2015]
Intended appeal grounds
[3] The first matter of note is that at the initial call of the matter Mr Terry was asked to plead. The exchange has been transcribed:
Registrar : Robert Frank Terry, you are charged that on the 23rd day of August 2014 at Picton you drove a vehicle on a road at a speed exceeding 50 kilometres per hour being the applicable speed limit. How do you plead?
Mr Terry: Not guilty your Honour.
The Court: Sergeant, have you got any witnesses with regards to this matter and, if so, how many?
Sergeant Munro: Just one police officer Your Worships.
The Court: Thank you. So we will look at adjourning this to the
25th of February, is that acceptable to you, sergeant?
Sergeant Munro: yes, Your Worships. I’ll just – I don’t have the OC’s unavailability dates but I think that’s …
The Court: Right. Mr Terry, with regards to the charge laid against you that you drove a vehicle at a speed exceeding 500 [sic] Kilometres per hour –
Mr Terry: What was that again, Your Honour? The Court: – being the – pardon?
Mr Terry: What was that speed? The Court: 50 kilometres –
Mr Terry: Thank you, Your Honour.
The Court: – beg your pardon, 50 kilometres per hour being the applicable speed limit. This matter will be adjourned to the 25th of February, in Blenheim, thank you.
Hearing concludes
[4] Mr Terry contended that this exchange meant that the adjourned hearing was to inquire into whether he had exceeded 500 kph and that, absent formal withdrawal and a fresh plea, which did not occur, the charge must be dismissed. This argument was rejected by the Justices, and by the District Court on appeal. The District Court noted it was a slip of the tongue which occasioned no prejudice. The charge to
which Mr Terry pleaded had been correctly put. Mr Terry wishes to raise this topic again if given leave.
[5] The second matter Mr Terry refers to is the credibility of the officer’s evidence. Mr Terry contends the officer said in evidence he was travelling in a southerly direction and this is incorrect. This error should have been seen as undermining the officer’s credibility, and the prosecution should therefore have failed.
[6] Both the preceding decisions have addressed this. Each have reached a conclusion that the error, if made, is not one of significance to the prosecution. That said, the Justices did accept the officer’s evidence as accurate. It was noted that identity was not in dispute and Mr Terry accepted he had been stopped by the officer. The District Court saw no reason to differ from the Justices in this conclusion and noted the point to anyway be irrelevant. The Court separately made its own assessment of the evidence, and agreed with the Justices’ conclusions.
[7] The third matter Mr Terry would raise on the appeal is that he did not receive the police submissions prior to the District Court appeal hearing. He accepts he did not raise this matter with the District Court at the time. He says it is a breach of the Rules which merits further exploration.
[8] Finally, Mr Terry says the combined weight of his submissions shows that he has been wrongly convicted. Accordingly, the s 237 requirement of potential miscarriage is made out.
Decision
[9] Section 237 says that a second appeal court should give leave only if satisfied either:
(a) that the appeal involves a matter of general or public importance; or
(b)that a miscarriage may have occurred or may occur unless the appeal is heard.
[10] There is no matter of general or public importance. The intended appeal points are case specific and carry no broader implications.
[11] Turning to the issue of miscarriage, the point concerning 500 kph has no merit. The infringement notice and the charge were put correctly. That the Justice mis-spoke when adjourning the matter is irrelevant and no risk of prejudice has been shown.
[12] As regards the officer’s evidence, the appeal would invite the Court to revisit the independent conclusions reached by two decision making bodies. There is no reason for the matter to be reconsidered, and there is no risk of miscarriage. If there was an error as to the direction of Mr Terry’s vehicle, there is no basis on which it could affect the validity of the prosecution. I invited Mr Terry on several occasions to articulate the link, and he was unable to do so.
[13] The third issue is the non-receipt of submissions. I first observe that a perusal of the judgment under appeal does not give rise to any concern. It is clear that the Court was made aware of Mr Terry’s essential points, and addressed them. It is notable that the same points would be advanced on the appeal. Second, Mr Terry to my knowledge, and by his own submissions, is an experienced advocate in his own cause. He is confident with court procedure and is articulate. I have no doubt he would have raised the matter with the District Court had he felt disadvantaged. I invited him to explain why he did not. Nothing was said in reply that suggests a miscarriage might have occurred.
[14] The application for leave to appeal is declined.
Simon France J
Solicitors:
O’Donoghue Webber, Crown Solicitors, Nelson
0
0
0