Terry v The Queen - [2015] NZCA 108

IN THE COURT OF APPEAL OF NEW ZEALAND

CA559/2014
[2015] NZCA 108

BETWEEN	ROBERT FRANK TERRY Applicant
AND	THE QUEEN Respondent

Hearing:	5 March 2015
Court:	French, Asher and Williams JJ
Counsel:	Applicant in person A Markham for Respondent
Judgment:	31 March 2015 at 3.00 pm

JUDGMENT OF THE COURT

Application for leave to appeal dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

Introduction

Mr Terry seeks leave to bring a second appeal against his conviction in the Greymouth District Court on 5 June 2014 for speeding.[1] Mr Terry appealed his conviction to the High Court and in a reserved judgment MacKenzie J dismissed the appeal.[2]

District Court

[1]Police v Terry DC Greymouth CRI-2014-018-229, 5 June 2014.

[2]Terry v Police [2014] NZHC 2287.

Mr Terry had indicated to the District Court prior to the hearing in that Court that he would defend the charge but he did not appear in Court when the matter was called. At the hearing the police gave evidence that at 12.28 pm on Wednesday 26 February 2014 a vehicle registered in Mr Terry’s name was checked by an approved speed camera travelling at 64 km/h along Buller Road in Reefton. Buller Road is a 50 km/h zone. On receipt of the prosecution evidence and in the absence of any explanation from Mr Terry, Judge Murfitt found him guilty of the offence and fined him $80 together with court costs of $130.[3]

High Court

[3]Police v Terry, above n 1.

Mr Terry’s argument in the High Court was that the prosecution had failed to prove he was the driver of the vehicle and he was entitled to be presumed innocent until proven guilty. He also challenged the admission into evidence of an enlargement of the photograph taken of his vehicle by the speed camera. The enlargement enabled the car’s registration plate to be read. There is no question that the vehicle was registered to Mr Terry at the relevant time.
Justice MacKenzie pointed out that driving a vehicle on a road in excess of the designated speed limit for that road is an offence by virtue of r 5.1 of the Land Transport (Road User) Rule 2004 and s 40 of the Land Transport Act 1998 (the Act).[4] Justice MacKenzie then applied ss 133(1)(b) and (2) of the Act.[5] In combination, these two provisions impose a rebuttable presumption that the registered owner of the vehicle was the driver at the time of the alleged offence and casts the onus on the defendant to provide proof to the contrary.
[4]Terry v Police, above n 2, at [4].
[5]At [6].
Mr Terry, who was the registered owner, did not appear in the District Court to defend the proceeding and so adduced no evidence as required by the provisions to which we have made reference. Justice MacKenzie found that Judge Murfitt had properly convicted Mr Terry, all elements of the offence having been proved accordingly.[6]
[6]At [6].
Mr Terry’s second…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Terry v The Queen

Details

AGLC: Terry v The Queen [2015] NZCA 108
Case: [2015] NZCA 108
Decision Date: 31 March 2015 at 3.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application for leave to appeal from Robert Frank Terry against his conviction for speeding, which was issued by the Greymouth District Court. Terry was found guilty of driving at 64 km/h in a 50 km/h zone and was fined $80, together with court costs of $130. Terry had previously appealed his conviction to the High Court, which was dismissed by MacKenzie J. In the current case, Terry sought leave to bring a second appeal, arguing that he was denied his basic rights to attend his hearing and was not informed by the New Zealand Police of the hearing date. The Court of Appeal had to determine whether the application met the criteria for leave under the Criminal Procedure Act 2011.

The Court of Appeal examined whether Terry's application for leave involved a matter of general or public importance or if a miscarriage of justice may have occurred or may occur unless the appeal is heard. The Court noted that Terry did not raise the issue of not receiving notice of the hearing in his original notice of appeal to the High Court or in his argument before MacKenzie J. The Court emphasised that applicants for leave to bring a second appeal to the Court of Appeal are ordinarily restricted to the grounds of appeal advanced in the High Court. However, the Court may allow an intending appellant to advance new grounds if strict adherence to the rule may produce a miscarriage of justice. In this case, the Court was of the view that there was no reason to apprehend such a miscarriage, as Terry had no submission to make to the Court in relation to the arguments or evidence he would have advanced had he attended the District Court hearing.

The Court of Appeal dismissed the application for leave to appeal, finding that the issues raised by Terry in his application did not involve any matters of general or public importance or raise any likelihood that a miscarriage of justice may have occurred or may occur unless the appeal is heard. The Court concluded that the determination of MacKenzie J was clearly correct.

The Court of Appeal dismissed the application for leave to appeal, and no further appeal will be heard in this matter. The conviction and sentence issued by the Greymouth District Court stand as the final determination of the case.

Orders