HARTLEY v NEW ZEALAND POLICE [2020] NZCA 334

HARTLEY v NEW ZEALAND POLICE [2020] NZCA 334 [7 August 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA107/2019[2020] NZCA 334BETWEEN CORY HARTLEYApplicantAND NEW ZEALAND POLICERespondentCourt: French, Woolford and Dunningham JJCounsel: Applicant in personJ Mara for RespondentJudgment:(On the papers)7 August 2020 at 10 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)[1] The applicant, Mr Hartley, was convicted in the District Court at PalmerstonNorth of two charges of careless driving causing injury.1 He was sentenced to80 hours' community work and six months' disqualification from holding or obtaininga driver licence.1 Police v Hartley [2018] NZDC 17735.[2] He appealed both his conviction and sentence to the High Court, but his appealwas dismissed.2 He now seeks leave from this Court to bring a second appeal againstconviction and sentence.BackgroundThe offending[3] In March 2017, Mr Hartley lost control of his vehicle while coming arounda corner. His van crossed the centre line and struck an oncoming vehicle.The occupants of the other vehicle both sustained moderate injuries.The District Court hearing[4] Mr Hartley represented himself at a judge-alone trial in August 2018. The keyissue in that hearing was whether Mr Hartley was driving carelessly. His defence wasthat he came around a corner to find a line of stopped cars in front of him, requiringhim to swerve to the left to avoid a collision with them. He said he braked prior toswerving on to the gravel shoulder, and the loose gravel caused his vehicle to take offto the right, at which point he was no longer in control of the vehicle and was thereforenot at fault. His mother, who was a passenger in his vehicle, confirmed his account.[5] However, six other witnesses to the accident did not see any vehicles stoppedin front of Mr Hartley.3 The Judge, while noting his defence, said that Mr Hartley"must maintain control of [his] car at all times" and, on the basis of his own evidence,he was careless.4 He was therefore found guilty on the charges. After a briefdiscussion about Mr Hartley's personal circumstances the Judge imposed a sentenceof 80 hours' community work rather than a fine, along with the mandatory six monthperiod of disqualification from holding or obtaining a driver's license.2 Hartley v Police [2019] NZHC 385.3 Being the two injured occupants of the van that Mr Hartley struck and four other drivers who werewitnesses to the accident.4 Police v Hartley, above n 1, at [11].The High Court appeal[6] Mr Hartley appealed to the High Court on the grounds that the District Courttrial was unfair due to his inability to cross-examine witnesses, his lack of opportunityto defend himself and because of factual discrepancies he alleged were inthe prosecution evidence.[7] Simon France J considered and dismissed each ground. He was satisfied thehearing was fair. Mr Hartley could not identify any matters of significance that he wasprevented from advancing and interruptions to control relevance were inevitable anddid not point to unfairness. In respect of the alleged factual inconsistencies, these wereeither irrelevant or were able to be explored in questioning. The suggestion that therehad been witness collusion had not been supported by any evidence and could not betaken further. In relation to the core issue, whether the Judge was wrong to concludeit was careless driving based on Mr Hartley's own account, Simon France J consideredit was "established beyond a reasonable doubt that the obstruction Mr Hartley believeshe encountered did not exist. None of the witnesses saw it."5 Thus, "[t]he onlyexplanation for Mr Hartley's vehicle entering onto the gravel is that it was the productof carelessness [on] his part".6 The appeal was therefore dismissed.[8] Mr Hartley did not pursue his appeal against sentence in the High Court andso the High Court dismissed his sentence appeal.Grounds of appeal[9] Mr Hartley seeks leave to appeal both conviction and sentence. His notice ofapplication for leave to appeal does not disclose the grounds of appeal. However, hissubmissions to the Court dated 4 July 2020 and his undated further submissions arevery firmly fixed on the same factual issues which were determined to be irrelevant,or which were not upheld, in the lower court hearings. These include allegations that:5 Hartley v Police, above n 2, at [12].6 At [13].(a) the photographs produced at the hearing of the damage to his van werenot indicative of the damage sustained in the accident and the constablewho gave evidence "has inflicted further damage to the van";(b) the direction of travel stated by the constable was wrong as the relevanthighway "does not travel south it travels south east"; and(c) the witness testimony was not valid due to "shock at the time of theaccident", a failure to test them for drugs and alcohol, and because ofdiscrepancies in their statements.[10] The question is whether these are grounds which would warrant granting asecond appeal.The statutory test[11] Sections 237 and 253 of the Criminal Procedure Act 2011 prevent this Courtfrom granting leave to bring a second appeal against conviction and sentencerespectively unless satisfied either:(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur, unlessthe appeal is heard.[12] The threshold for leave to bring a second appeal is high.7 A matter of generalor public importance might include an issue of general principle or importance in theadministration of criminal law by the courts, but it is unlikely to include an issue offactual assessment specific to the circumstances of the case.8 A court is slow to grantleave where success depends upon the court reversing concurrent findings of fact fromthe decisions below.9 Where a trial was before a judge alone, the bar is higher as twodecisions giving reasons for the factual findings are available.107 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.8 At [36].9 Butler v Police [2016] NZCA 27 at [3].10 R (CA176/2016) v Police [2016] NZCA 403 at [26] citing Warren v R [2016] NZCA 108 at [30].Is either of the grounds met?[13] Mr Hartley does not address the criteria for granting leave to run a secondappeal, nor can we discern them from the grounds of appeal set out in his submissions.We agree with the Crown submissions that this proposed appeal involves fact-specificmatters which largely repeat those which were advanced in, and rejected by,the High Court. None of these involves a matter of general or public importance.[14] For the same reason, we do not consider a miscarriage of justice will arise ifleave is not granted. The various factual matters Mr Hartley wishes to raise have beentraversed on appeal in the High Court. The intervention from the prosecution and theJudge in the District Court was solely prompted by Mr Hartley pursuing lines ofquestioning which were irrelevant to his conviction. That does not give rise to apotential miscarriage of justice.[15] It is clear that Mr Hartley disagrees with the credibility and factual findingsmade by the District Court Judge, which were upheld on appeal. However, we can seeno basis for revisiting the key factual findings which were relevant to the convictionbeing:(a) there was not a line of stopped cars which Mr Hartley had to avoid; and(b) he lost control of his vehicle in a way that was careless.[16] In respect of the proposed sentence appeal, Mr Hartley has requested hissentence of 80 hours' community work be substituted for a fine because performanceof community work would "harm [his] reputation in the local community". Again,this argument raises no point of general or public importance, nor is it likely thata miscarriage of justice has occurred. At the time of sentencing, Mr Hartley supporteda community-based sentence because his financial circumstances did not allow him topay a substantial fine. It is difficult to see how performance of community work couldcause more reputational damage than any other sentence imposed on conviction.Conclusion[17] The application raises no grounds of general or public importance.A miscarriage of justice will not occur if the appeal is not heard. The threshold forleave to bring a second appeal is not met.Result[18] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent