Terry v Police

[2020] NZHC 1682

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2020-406-4

[2020] NZHC 1682

BETWEEN

ROBERT FRANK TERRY

Appellant

AND

NEW ZEALAND POLICE

Respondent

On the papers

Counsel:

Appellant in person

A R Goodison for Respondent

Judgment:

14 July 2020

JUDGMENT OF SIMON FRANCE J

[1]    Mr Terry was convicted on 24 October 2018 of failing to stop his vehicle when required to do so by police officers. He was fined $1,500 plus $130 court costs.1 There was substantial evidence, and the presiding Justices issued a lengthy decision (149 paragraphs).

[2]    Mr Terry appealed. The conviction appeal was unsuccessful but the fine and court costs were quashed. The ultimate outcome was convicted and discharged.

Judgment was issued on 15 March 2019.2

[3]    On 25 March 2020 Mr Terry filed a Notice of Application for leave to appeal. The Notice recognised it would be a second appeal for which leave was required. There was no reference to it being a year out of time.

1      New Zealand Police v Terry DC Blenheim, CRI-2018-006-695, 24 October 2018.

2      Terry v New Zealand Police [2019] NZDC 4742, 15 March 2019.

TERRY v NEW ZEALAND POLICE [2020] NZHC 1682 [14 July 2020]

[4]    I issued two Minutes, the effect of which was to indicate there were two leave applications involved, to set a timetable for filing further evidence and submissions, to note (following a further filing) that the question of delay had not been addressed and to allow time for Mr Terry to address this if he wished, and to advise that pursuant to s 328 of the Criminal Procedure Act 2011 I had determined that the leave application would be dealt with on the papers.

[5]Mr Terry has filed further submissions. They do not address the delay.

Decision

[6]    I address first the proposed appeal since the importance of any point in issue is relevant to the other decision. It is not easy to discern the point but it appears to be that there was an adjournment of the original hearing of the charge. Subsequent to the adjournment and before the hearing occurred on the amended date, the Police disclosed further information on which they relied. Mr Terry would argue that is not permissible. This was not raised at the first appeal.

[7]    The judgment it is sought to appeal addresses several grounds – bias, factual inability to stop his vehicle, incorrect charging, nullity (due to the initial fixture being vacated), failure to advise Mr Terry of his rights, and improper impounding of his car.

[8]    Section 237 of the Criminal Procedure Act 2011 provides for second appeals where there is a matter of general or public importance, or the possibility of a miscarriage. Neither circumstance arises here.

[9]    Returning to the issue of extending time within which to appeal, the factors relevant to the exercise of that discretion were articulated in R v Knight.3 The notable feature here is that no explanation has been offered to explain a significant period of delay. The offence in question is not of the most serious type and resulted in no actual penalty. In the absence of any point of general importance, it is not a case in which to exercise the discretion to extend time within which to appeal. It is a matter which has

3      R v Knight [1998] 1 NZLR 583.

had two airings and the interests of justice do not require a further exploration of the incident.

[10]   The application to extend time within which to file an application for leave to bring a second appeal is declined.

Simon France J

Solicitors:

Crown Solicitor’s Office, Nelson for Respondent