Terry v Police

[2022] NZCA 198

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA658/2021
 [2022] NZCA 198

BETWEEN	ROBERT FRANK TERRY Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Cooper, Peters and Palmer JJ
Counsel:	Appellant in person M L Wong and H S Cunningham for Respondent
Judgment: (On the papers)	19 May 2022 at 9 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Palmer J)

1. On 9 July 2021, in the District Court at Blenheim, Judge J E Rielly convicted Mr Robert Terry of two charges of driving while disqualified and one charge of wilful damage by using a rock to damage a police car.[1]  On 5 August 2021, the Judge sentenced Mr Terry to fines of $500, court costs of $390, reparations of $1,863.07, and disqualified him from holding or obtaining a driver’s licence for six months.[2]  On 22 October 2021, in the High Court, Edwards J dismissed Mr Terry’s appeal against conviction and sentence.[3]

   [1]Police v Terry [2021] NZDC 13487.

   [2]Police v Terry [2021] NZDC 16962.

   [3]Terry v Police [2021] NZHC 2838 [First appeal judgment].

2. Mr Terry applies for leave to bring a second appeal to this Court.  Under ss 237(2) and 253(3) of the Criminal Procedure Act 2011, the Court must not give leave for a second appeal of the conviction or sentence 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.

3. Mr Terry’s submissions in support of his application contain a variety of extraneous allegations about the Police and other authorities.  His most substantive argument is that, in relation to a previous conviction for speeding, the demerit points occasioning his disqualification were suspended by law until his appeal against that conviction could be determined.  As his appeal was still on foot when he was arrested for the present driving while disqualified charges, he was not “disqualified” at the time and so is not guilty of those charges.

4. Section 112(1)(b) of the Land Transport Act 1998 provides that demerit points deriving from an offence are cancelled if a person appeals their conviction for that offence.  Section 112(1)(c) provides that “if on the determination of the appeal the conviction is upheld . . . demerit points must be recorded in relation to the offence”. 

5. On 30 June 2020, Mr Terry’s appeal against his speeding conviction was heard and dismissed.  Following the determination of that appeal, consistent with s 112, the demerit points were recorded.  On 7 July 2020, Mr Terry’s licence was suspended.  On 6 August 2020, Mr Terry was arrested for driving while disqualified.  On the same day, the High Court received his application for leave for a second appeal against his speeding conviction.  So his appeal had been determined and a second appeal was not yet in train.  The second appeal was ultimately unsuccessful.[4]  As Edwards J said, “[l]eave operates as a gateway to appeal, but it is not the appeal itself.”[5]  We are satisfied that she, and the District Court Judge, did not err.

   [4]Terry v Police [2020] NZHC 3173.

   [5]First appeal judgment, above n 3, at [39].

6. Neither the s 112 point, nor the other proposed grounds of appeal raised by Mr Terry, are of general or public importance, given the factual context of this case.  Nor do they suggest there was any miscarriage of justice.  The same is true of the sentence, which was on the generous side.  We dismiss the application.

Solicitors:
Crown Law Office, Wellington for Respondent