Terry v Police
[2020] NZHC 3173
•2 December 2020
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2020-406-009
[2020] NZHC 3173
BETWEEN ROBERT FRANK TERRY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 November 2020 Counsel:
Appellant in person
J M Webber for respondent
Judgment:
2 December 2020
RESERVED JUDGMENT OF DOBSON J
[1] On 4 March 2020, the appellant (Mr Terry) contested a traffic infringement notice before two Justices of the Peace (JPs) in the Blenheim District Court. He had been charged with driving a vehicle on a road at a speed exceeding the applicable speed limit of 60 kilometres per hour. In the notice of hearing in respect of the infringement notice, the location of the offence was specified as occurring at Seddon.
[2] At the hearing, Mr Terry represented himself and cross-examined the only Police witness, Senior Constable Monaghan, at some length as to the details of the location at which his speed had been recorded. In the course of his cross-examination of the constable, Mr Terry lodged an objection with the Court at the lateness of disclosure to him of the prosecution documents, which he took to have been provided with so short a time before the hearing that he had essentially been taken by ambush. He also complained that instalments of the disclosure were provided without an index, to which he was entitled.
TERRY v POLICE [2020] NZHC 3173 [2 December 2020]
[3] The JPs found the elements of the offence had been made out. They convicted Mr Terry and fined him $230 plus costs of $30.
[4] Mr Terry appealed that decision, with his appeal being heard in the Blenheim District Court on 30 June 2020. The hearing did not go well. There were spirited differences between Mr Terry and the District Court Judge on whether Mr Terry was advancing the grounds he had cited in his notice of appeal, or other grounds, some of which may have challenged the finding that the prosecution had proven the location at which the alleged speeding had occurred. In relatively short order, the Judge determined that the appeal was dismissed for want of prosecution.
[5] On 15 October 2020, Simon France J granted Mr Terry leave to bring a second appeal (out of time), being concerned that there had not been a proper hearing of the matter on the first appeal.1
[6] The grounds of appeal against his conviction were that the Crown had been unable to discharge the onus of proving that he drove a vehicle on State Highway One at Seddon on the relevant date at a speed exceeding 60 kilometres per hour. The second ground of appeal was that the delayed Police disclosure prevented the adequate preparation of his defence. He claimed that full disclosure had been received from the Police prosecution service on 2 March 2020, with the hearing set down on 4 March 2020.
[7] Mr Terry’s written submissions in support of the present appeal included the following:
3.The N.Z. Police allege that Mr Robert Frank Terry Crown Appointed Senior Counsel to the Supreme Court, drove a vehicle on State highway one at Seddon on the 4th September 2019 exceeding 60 Kms per hour.
4.The time, date, place and the identity of the defendant are not in dispute.
[8] When questioned on the inconsistency between his first ground of appeal and the acknowledgement in para 4 of his written submissions, Mr Terry insisted that that
1 Terry v Police [2020] NZHC 2708.
paragraph had been stated by the Crown. There is no reference elsewhere in the written submissions to Mr Terry dissociating himself from that unqualified acknowledgement, or attributing it to the Crown. After numerous exchanges with him during his submissions in which I sought to understand how he distanced himself from the unqualified acknowledgement and attributed it to the Crown, Mr Terry submitted that it was clear and that if I did not understand it, I should go and do some research.
[9] I was not alone in this. Mr Webber’s submissions for the respondent, which took account of Mr Terry’s written submissions, explicitly noted that Mr Terry did not dispute the time, date and place or that he was the driver, and the scope of the remainder of the respondent’s submissions relied upon that acknowledgement.
[10] Mr Terry stated repeatedly that, unlike most New Zealanders, he was entirely competent to debate the law and the facts in any court in New Zealand. Given his own assessment, the Court is entitled to rely on the plain meaning of his written submissions, which removes any basis for the first ground of the appeal.
[11] Against the prospect that holding Mr Terry to the terms of his submissions is in some way unfair, I have analysed the adequacy of the prosecution evidence, given that it is open to Mr Terry to argue that whatever the extent of his acknowledgements now, he is still entitled to have the Court assess the adequacy of the evidence that was adduced by the prosecution.
[12] Constable Monaghan described how he locked in a recording of the speed of a Peugeot vehicle travelling towards him in a 60 kilometres per hour zone on the outskirts of Seddon. Having recorded that vehicle’s speed at 87 kilometres per hour, the constable executed a U-turn and put on the warning lights on his vehicle. He gave evidence of the vehicle pulling in to a side road off State Highway One on the outskirts of Seddon, namely Tetley Street. When monitoring the Peugeot vehicle travelling in the opposite direction, Constable Monaghan described the location of his own vehicle as being between two other streets, Fell and Goulter Streets.
[13] In cross-examination, Constable Monaghan was, at one point, confused between Tetley and Goulter Streets. However, I am satisfied that there was adequate
evidence for the JPs to find that the Peugeot vehicle had been logged at 87 kilometres per hour in the 60 kilometres per hour zone between Goulter Street at one end of that stretch of State Highway One, and either Fell or Tetley Street at the other end. The JPs’ decision found that the incident occurred between the two of these streets that were furthest apart, namely Goulter and Tetley Streets, which was clearly open to them on the constable’s evidence.
[14] Mr Terry did not challenge the constable’s identification of him as the driver of the Peugeot vehicle, or the time at which the driving had been observed.
[15] Towards the conclusion of his cross-examination, Mr Terry put to the JPs that the prosecution had not proved the location of Tetley Street because its name was not endorsed on the aerial map that had been produced by Constable Monaghan. He also contended that there had been no proof that the Peugeot’s speed had been logged between Fell Street and Goulter Street.
[16] Answers from Constable Monaghan included that he was not required to establish that the speed had been logged between Fell and Goulter Streets, but only on the road, which was clearly State Highway One, in the 60 kilometres per hour zone that the evidence had focused upon. For their part, one of the JPs made the point that the name of Tetley Street did not need to be endorsed if the witness was familiar with it, as Mr Terry knew.
[17] As a matter of law, Constable Monaghan’s responses to Mr Terry’s questions were correct: the prosecution did not need to establish the location at which his speed was locked with the precision that Mr Terry’s questions expected. What had to be established was that the vehicle had been logged at 87 kilometres per hour whilst Mr Terry was driving and in an area where the speed limit was 60 kilometres per hour. There was ample evidence on which the JPs could be satisfied on that point.
[18] In responding to the appeal, Mr Webber cited two decisions which confirm that the precise location at which an alleged traffic offence occurred is not an essential
element of the charge.2 Mr Terry protested about those cases being cited because they both involved charges of dangerous driving, which is a charge under a different section of the Land Transport Act 1998 and, on his analysis, were therefore not applicable to the elements required to be proven in his case.
[19] That is not a valid basis for distinguishing the reasoning in those cases. The point which applies generally to the elements required to be proven in relation to both forms of driving charge is that it is unnecessary to establish the precise point on a roadway at which the conduct forming the basis of the charge occurred.3 Consistently with those decisions, the terms of the charge here were merely that the speeding occurred “on a road”. Mr Terry’s expectation of proof with absolute accuracy of the point on the roadway where the speeding occurred is misconceived.
[20] The second ground of appeal is that the prosecution disclosure was provided to him without an index, and with inadequate time for him to adequately prepare his defence. The disclosure occurred in three tranches. First, on 15 November 2019 when formal documents, accompanied by a disclosure index, were provided to Mr Terry. Next, full disclosure was couriered to him on 12 February 2020. There was no disclosure index on that occasion but the covering letter confirmed that nothing had been withheld under the provisions of ss 15 to 18 of the Criminal Disclosure Act 2008. Thereafter, on 27 February 2020, an updated formal statement of Constable Monaghan was provided, together with a certificate of accuracy for the radar device.
[21] Given the scope of the discovery, I am not persuaded that Mr Terry was impaired in any way in his vigorous defence of the charge by the absence of indices on the two latter instalments of disclosure. Given the evidence of the New Zealand Couriers’ track-it record, I am also not persuaded that the disclosure was only available to Mr Terry in completed form as little as two days prior to the hearing. Again, the record of the conduct of his defence does not suggest that he was materially impaired in that regard.
2 Cunningham v Ministry of Transport CA179/77, 13 June 1978; Robinson v Police HC Auckland A184/00, 27 February 2001 at [25].
3 Robinson v Police, above n 2, at [23].
[22] I accordingly find that both grounds of the appeal against conviction cannot be made out and the appeal is dismissed.
[23] Mr Terry labelled his submissions in support of his appeal as including an appeal against the fine and costs. However, he did not address the extent of the penalty at any stage. The fine and costs ordered were inarguably within range and, to the extent this was also to be treated as an appeal against sentence, that is also dismissed.
Dobson J
Solicitors:
Crown Solicitor, Blenheim
Copy to:
The appellant
3