Terry v Police

[2020] NZHC 2708

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2020-406-9

[2020] NZHC 2708

BETWEEN

ROBERT FRANK TERRY

Appellant

AND

NEW ZEALAND POLICE

Respondent

On the papers

Counsel:

Mr Terry in person

A R Goodison for Respondent

Judgment:

15 October 2020

JUDGMENT OF SIMON FRANCE J

[1]                  Mr Terry seeks leave to bring a second appeal. The application is itself out of time, but not greatly.

[2]                  The underlying prosecution is not an auspicious basis for a second appeal, being a speeding infringement offence. The first appeal was called on 30 June in the Blenheim District Court. I do not have the full documentation but it appears from a full transcript of the hearing (which is available) that the District Court struggled to understand the exact basis of the appeal. After what can be described, conservatively, as a terse exchange between bench and Mr Terry, the appeal was dismissed “for want of prosecution”.

[3]                  The respondent opposes the granting of leave on the basis that no error in the original decision is apparent. That may or may not be the case but I am not satisfied Mr Terry has had the first appeal opportunity the law entitles him to. Manifestly the

TERRY v NEW ZEALAND POLICE [2020] NZHC 2708 [15 October 2020]

appeal was prosecuted – Mr Terry was present and seeking to advance it. That he was doing so poorly or in an irritating manner (if that was the case) does not allow a conclusion the appeal is not being prosecuted. Further, the nature of the hearing as it appears from the written record does not, in my view, constitute a hearing of a matter.

[4]                  Pursuant to s 237(2)(b) of the Criminal Procedure Act 2011 I allow the application to bring a second appeal on the basis that a miscarriage may otherwise occur. The miscarriage would be the loss of the first right of appeal. The remedy is  to allow this appeal opportunity. Accordingly, I extend the time within which leave to bring a second appeal may be filed, and grant the application to bring a second appeal.

Process from here

[5]                  The Registrar is to allocate a date at least four weeks from the issue of this ruling. A one-hour slot is to be allocated.

[6]                  Mr Terry is to file submissions two weeks before. The focus of the submissions should be on his substantive challenge to the decision of the Justices of the Peace. The events at the District Court have been addressed by this decision.

[7]The Crown is to file submissions one week before the hearing.

[8]                  Mr Terry will have 30 minutes to speak to his written submissions. The respondent will have 25 minutes to reply. Mr Terry would then have 5 minutes for his reply.

Simon France J

Solicitors:

Crown Solicitor, Nelson for Respondent