Terry v Police
[2023] NZHC 2719
•28 September 2023
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2023-406-010
[2023] NZHC 2719
BETWEEN ROBERT FRANK TERRY
Appellant
AND
THE POLICE
Respondent
Hearing: 27 September 2023 Appearances:
R F Terry self-represented for Appellant
J W N Cameron and J T Vuataki for Respondent
Judgment:
28 September 2023
JUDGMENT OF GRICE J
(Leave to bring a second appeal)
[1] On 14 September 2022, Mr Terry was found guilty of failure to comply with a lawful requirement pursuant to the Land Transport Act 1998 (the LTA) by two Justices of the Peace at the Blenheim District Court.1 Mr Terry then unsuccessfully appealed that decision before Judge Hinton, again in the Blenheim District Court.2 He now seeks leave of this Court to bring a second appeal against this conviction.
[2] In their decision, the Justices of the Peace referred to evidence of Mr Terry’s six-month disqualification from driving, issued by Judge Rielly on 5 August 2021 for earlier charges.3 The notice letter identified that Mr Terry remained unlicensed until
1 Land Transport Act 1998, ss 52(1)(c) and 113(2)(e) (maximum penalty of a fine not exceeding
$10,000).
2 Police v Terry [2023] NZDC 11402 [Decision on Appeal].
3 Decision on Appeal, above n 2, at [3]; discussed further below.
TERRY v THE POLICE [2023] NZHC 2719 [28 September 2023]
reinstatement of his licence to drive.4 Mr Terry was then stopped while driving on 22 April 2022, at which point Mr Terry had still not received a reinstated licence. The Senior Constable then advised that he was not to drive until his licence had been reinstated or would risk his vehicle being impounded. On 10 May 2022, Mr Terry was then stopped again while driving, without having reinstated his licence.5 Before the Justices of the Peace, Mr Terry did not (and still does not) challenge issues of date, place or other details of the charge.6
[3] In the course of proceedings, Mr Terry has made wide ranging oral and written submissions. His submissions touch on various matters that have already been the subject of earlier appeals, as I refer to below. The current matter before this Court is limited to the issue of leave to bring a second appeal.
Background
[4] While Mr Terry was disputing the present charges before Judge Hinton, the appellant was also pursuing an appeal against a 9 July 2021 decision of Judge Rielly, convicting Mr Terry of two charges of driving while suspended and one charge of wilful damage.7 Judge Rielly subsequently disqualified Mr Terry from holding or obtaining a driver’s licence for six months, on 5 August 2021.8 On 22 October 2021, Edwards J dismissed Mr Terry’s appeal against conviction and sentence in the High Court.9 On 19 May 2022, the Court of Appeal dismissed Mr Terry’s application for leave to bring a second appeal against the decision of Judge Rielly.10 Mr Terry then sought leave from the Supreme Court to appeal the Court of Appeal’s decision declining leave. That was dismissed.11
[5] At the time he was disputing the 2021 convictions, Mr Terry was also appealing a 4 March 2020 traffic infringement notice given by two Justices of the Peace in the
4 Pursuant to s 82A(2) of the LTA, a person’s driver licence remains of no effect when a period of suspension or disqualification ends until they apply to the Director of Land Transport to have the licence reinstated. This can be done through driver licencing agents, being VTNZ or the AA.
5 Decision on Appeal, above n 2, at [5].
6 Decision on Appeal, above n 2, at [3].
7 Police v Terry [2021] NZDC 13487.
8 Terry v Police [2022] NZCA 198 at [1] [CA Decision].
9 Terry v Police [2021] NZHC 2838 [2021 Decision].
10 CA Decision, above n 8.
11 Terry v Police [2022] NZSC 137.
Blenheim District Court.12 Mr Terry had appealed this decision to the District Court. This was dismissed by Judge Ruth in June 2020.13 This resulted in a loss of demerit points for Mr Terry, which meant he was served with a three month licence suspension on 7 July 2020.14 Leave was given by Simon France J to bring a second appeal to the High Court, as his Honour was concerned that there had not been a proper hearing of the matter on the first appeal before Judge Ruth.15 Justice Dobson then dismissed Mr Terry’s second appeal.16 Mr Terry sought further leave to appeal the decision of Dobson J, however, because the decision of Dobson J was a second appeal, Simon France J explained that the decision was final and there was no jurisdiction to grant a further appeal.17
[6] In summary, at the point Mr Terry appeared before Judge Hinton on the current charges, he had previously been convicted of traffic and driving related offences in 2020 and 2021. The avenues of appeal in respect of both sets of convictions had also been exhausted by Mr Terry.
[7] The District Court—and this Court—is bound by the final decisions of Dobson J (in respect of the 2020 convictions) and Edwards J (in respect of the 2021 convictions). It appears that Mr Terry was first disqualified from driving on 7 July 2020 and has been ever since, meaning that he was disqualified at the point that Judge Reilly ordered the further and presently relevant six-month suspension in August 2020.18
[8] Judge Hinton’s reasoning in the decision now on appeal is brief, the substantive elements of which are set out in full below:19
[7] The question for this Court on appeal is whether there has been a miscarriage of justice occur [sic] in relation to assessment of the evidence or for any reason.
12 Terry v Police [2020] NZHC 3173 [2020 Decision].
13 2020 Decision, above n 12, at [4].
14 2021 Decision, above n 9, at [7].
15 Terry v Police [2020] NZHC 2708; it seems that the District Court Judge and Mr Terry had a rather vigorous discussion on whether Mr Terry was actually advancing any proper grounds of appeal.
16 2020 Decision, above n 12, at [22].
17 Terry v Police [2021] NZHC 513.
18 2021 Decision, above n 9, at [7].
19 Decision on Appeal, above n 2.
[8] Mr Terry accepted that he had been disqualified on 5 August 2021. His submission on appeal was however simply that he was not disqualified because he had appealed or been granted the right to a second appeal of the disqualification, and that appeal had not been dismissed until 17 May 2022 [sic], that date being after 10 May 2022 when he was stopped by the Police.
[9] Mr Terry's proposition on appeal was simply that the disqualification was not in force at that time he was forbidden to drive. Mr Terry advised he accepted the decision dismissing the appeal but the fact is it was not delivered until 17 May 2022 [sic], precluding any disqualification being in effect prior to then and precluding any offence being committed.
[l0] The submissions for the police at the appeal hearing were brief and to the effect that Mr Terry had been disqualified on 5 August 2021 at the end of which period he was required to get his licence reinstated and he had not done so. This meant that Mr Terry was guilty of the charge under s 113(2)(e) of the Act.
[11] So the ambit of the appeal was narrow indeed. Mr Terry had no issue with the disqualification and dismissal of his appeal(s). Prior to 17 May 2022 [sic] there had, presumably, been an appeal already dismissed with leave being granted for a second appeal pursuant to s 237.
[12] Indeed, Mr Terry, I believe, if l followed him correctly, submitted that s 237 of the Criminal Procedure Act, which deals with a right of appeal against determination of a first appeal court automatically triggered for him the benefit of non-existence of the disqualification which he accepted had been in force.
[13] Mr Terry did not refer to any order of the Court or specific statutory provision which operated to confer on or grant to him a suspension from disqualification in the circumstances which prevailed.
[14] I could not accept that the Justices have proceeded here on any basis that affords any ground of appeal advanced by Mr Terry against the decision dated 14 September 2022. There was nothing advanced by Mr Terry constituting a miscarriage of justice here which required further consideration.
[9] Mr Terry argues that Judge Hinton was wrong to dismiss his appeal. This appears to be for the same reasons advanced before Judge Hinton. Mr Terry says that at the time he was stopped by Police on 10 May 2022, he was awaiting the Court of Appeal’s determination on the leave to appeal the 2021 decision that had resulted in his disqualification. He says this effectively ‘paused’ the disqualification and therefore he cannot be guilty of infringing it or any notice in its regard.
[10] Pursuant to s 237 of the Criminal Procedure Act 2011, this Court must not grant leave for a second appeal unless it is 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.
[11] The charge relates to a traffic matter. Mr Terry’s appeal does not raise any issues of general or public importance. It therefore must be determined whether a miscarriage of justice may have occurred for any other reason, or will occur, unless leave is granted.
[12] Mr Terry’s submissions do not point to any errors in Judge Hinton’s reasoning. As explained by the Court of Appeal, applying for leave to appeal does not operate as the appeal itself.20 Neither the fact of filing the application, nor the leave decision itself can have a bearing on the validity of the suspension or disqualification. Therefore, because Mr Terry was seeking leave of the Court of Appeal at the time that he was stopped in relation to the current charges on 10 May 2022, this did not have the effect of ‘pausing’ or otherwise affecting the validity of the disqualification issued in August 2021 such that he cannot be guilty of an offence under s 113 of the LTA. As confirmed by the Court of Appeal,21 this means Mr Terry has been validly disqualified from driving since July 2020.
[13] Section 112 of the LTA operates so that a first appeal of a conviction attracting demerit points has the effect of ‘pausing’ any notation of the demerit points—and therefore any subsequent suspension or disqualification from driving—until the determination of the appeal.22 However, the same is not true for appeals concerning suspensions or disqualifications.23 So, while the 2020 charges appealed by Mr Terry had the benefit of this ‘pause’ before the first appeal decision of the District Court, the current appeal does not.
[14] Pursuant to s 106 of the LTA, there is a general right of appeal to the District Court from a decision to revoke or suspend a person’s licence. However, the decision or its effects are not ‘paused’, as set out in s 106(3):
20 CA Decision, above n 8, at [5].
21 CA Decision, above n 8, at [5].
22 Land Transport Act, s 112(1).
23 There is also no ‘pause’ where a person seeks leave to bring a second appeal against a conviction attracting demerit points.
[e]very decision … appealed against under this section continues in force pending the determination of the appeal, and no person is excused from complying with the provisions of this Act on the ground that any appeal is pending.
[15] Section 107 of the LTA allows further appeal of a District Court’s decision to disqualify a person’s licence to the High Court. Although s 107(2) of the LTA allows the District Court to defer the operation of the disqualification order pending the High Court’s determination of the appeal, this deferral is not automatic and only occurs on the application of the person whose licence is in issue. Deferral can also be declined by the District Court.24
[16] It follows that Mr Terry’s application for leave to bring a second appeal must be dismissed. The disqualification incumbent on his licence at the time he was stopped by Police on 10 May 2022 was valid and remained unaffected by the pending leave determination of the Court of Appeal. In the absence of any other law operating to ‘pause’ Mr Terry’s disqualification in the current circumstances, there is no issue in the reasoning of either the Justices of the Peace in the first instance, or Judge Hinton on appeal. Absent any other indication of a miscarriage of justice, Mr Terry has not satisfied the criteria for leave to bring a second appeal set out in s 237 of the Criminal Procedure Act 2011.
[17] Finally, Mr Terry also seeks to dispute aspects of Judge Reilly’s determination from 2020. However, this Court is bound by the second appeal decision of Edwards J, which upholds Judge Reilly’s judgment. Mr Terry cannot relitigate Judge Reilly’s decision.
Grice J
Solicitor:
O'Donoghue Webber, Nelson Crown Law, Wellington
24 Land Transport Act, s 107(2); a person can appeal a District Court decision to decline deferral, however, pursuant to s 107(3).
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