TERRY v NEW ZEALAND POLICE [2019] NZHC 1131

TERRY v NEW ZEALAND POLICE [2019] NZHC 1131 [23 May 2019]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYI TE KŌTI MATUA O AOTEAROATE WAIHARAKEKE ROHECRI-2019-406-5[2019] NZHC 1131BETWEEN ROBERT FRANK TERRYAppellantAND NEW ZEALAND POLICERespondentHearing: 8 May 2019Appearances: Appellant in PersonJ W Cameron for RespondentJudgment: 23 May 2019JUDGMENT OF GRICE JIntroduction[1] Mr Terry seeks leave to appeal a decision of the District Court dated 15 March2019.1 That decision dealt with an appeal from a decision of Justices of the Peace inwhich Mr Terry was convicted and sentenced on one charge of failing to stop for apolice car when using its lights or siren.2 The Justices of Peace fined Mr Terry $1,500and imposed $130 court costs. The District Court Judge dismissed Mr Terry's appealagainst conviction but allowed his appeal against sentence, convicting and dischargingMr Terry.1 Terry v Police [2019] NZDC 4742.2 Land Transport Act 1998, ss 114(2) and 52(1)(a)(ii); maximum penalty of $10,000 fine.BackgroundJustices of the Peace[2] Mr Terry was found guilty by two Justices of the Peace in the Blenheim DistrictCourt following a hearing on 6 September 2018 of failing to stop for a police car. Thesentence imposed was a fine of $1,500 and payment of court costs of $130. At thehearing two prosecution witnesses were called, being the officer who apprehended andarrested Mr Terry and an officer who accompanied him at the time of the arrest.Mr Terry cross examined them both.[3] The evidence before the Justices of Peace, offered by police, was that on30 June 2018 at 11 pm they saw Mr Terry driving at below the 50 kilometres per hourspeed limit and weaving over his lane. They suspected him of drinking, so they puton their lights to pull him over. Mr Terry did not pull over and continued to drive forover a kilometre before stopping. He was not speeding. The police said there werenumerous earlier opportunities and places he could have pulled over that would havebeen safe although it was noted that part of the road did have dashed yellow linesindicating no stopping. After Mr Terry pulled over he was confrontational, aggressiveand abusive. He was arrested and taken to the police station.[4] Mr Terry, as is his right, elected not to give evidence at the defended hearing.He made submissions following the evidence. His argument was that he had beenpulled over for a breath alcohol test, and the police could not then prosecute him forsomething else when he was found to have not been drinking. Mr Terry also arguedthat he had pulled over at the first available car park and so was not guilty of failingto stop. Mr Terry's arguments were unsuccessful and he was convicted. The Justicesof the Peace accepted the police's evidence.[5] The Justices of the Peace found that Mr Terry knew of the requirement to stopwhen the lights of a police car were flashing and Mr Terry could have stopped earlierbut consciously chose not to. The elements of the charge were therefore provenbeyond reasonable doubt.District Court[6] On appeal to the District Court, the Judge canvased various grounds of appealrelied upon by Mr Terry. The decision was comprehensive. The Judge concluded thatno legal or factual errors were made by the Justices of the Peace and dismissed theappeal against conviction. In reviewing the sentence imposed by the Justices of thePeace, the Judge allowed the appeal due to Mr Terry's limited means. He convictedMr Terry and discharged him.Standard of leave to appeal[7] Section 237 of the Criminal Procedure Act 2011 relevantly provides:(1) A convicted person may, with the leave of the second appeal court,appeal to that court against the determination of the person's firstappeal under this subpart.(2) The High Court or the Court of Appeal must not give leave for asecond appeal under this subpart unless satisfied that—(a) the appeal involves a matter of general or public importance;or(b) a miscarriage of justice may have occurred, or may occurunless the appeal is heard.[8] Mr Terry is therefore required to seek leave from this Court in order to appealthe District Court's appeal decision.[9] The following considerations are relevant to whether leave should be grantedfor a second appeal:(a) Both limbs set out above have high thresholds.3(b) Matters of general or public importance typically must raise such issuesas principles that have broad application beyond the circumstances of asingle case.43 Criminal Procedure Act, s 237(2)(a) and (b). McAllister v R [2014] NZCA 175, [2014] 2 NZLR764.4 At [36].(c) A court is slow to grant leave where it would mean reversing theconcurrent findings of fact from the decisions below.5Leave application[10] Mr Terry made written and oral submissions in support of this leaveapplication. Many of the submissions were focussed on wider issues than thoseengaged in the present convictions. Insofar as his submissions related to the presentconvictions they were directed at challenging the factual findings of the Justices of thePeace and the District Court Judge rather than advancing any legal principle.[11] Mr Terry takes issue with the findings of the Justices of the Peace which wereupheld by the District Court on appeal.[12] Mr Terry had disputed that he had the opportunity to stop safely before heactually did. In addition, Mr Terry argued that the officer following him could nothave properly observed him. Both the Justices of the Peace and the District CourtJudge on appeal found against Mr Terry on these points. He said that these issuesneeded further "debate" in this Court. These are factual matters on which concurrentfindings were made that pose no issues of general or public importance.[13] Mr Terry also argued the officers failed to read Mr Terry his New Zealand Billof Rights 1990 advice without delay. The Judge dealt with this in his decision:6[18] Paragraphs 12 and 13: the police failed to read Mr Terry hisNew Zealand Bill of Rights Act advice at the roadside. It is implicit in theJPs' decision that the defendant's confrontational and abusive stance at theroadside resulting in a struggle, restraint and arrest impeded the New ZealandBill of Rights Act advice being provided at the scene. But it was given uponarrival at the police station. When it was the defendant had indicated heunderstood the advice and did not require a lawyer. Further when he wasinitially stopped at the roadside it could not be said to be detention for thepurpose of s 23 of the New Zealand Bill of Rights Act 1990. Thus there wasno strict obligation to provide him with the opportunity to consult and instructa solicitor without delay, at least initially. See Temese v Police [1992] 9 CRNZ425 (CA). In any event he was shortly afterwards provided with such adviceand did not avail himself of it. Nor did he make any inculpatory statement atthe police station. No ground for miscarriage of justice arises thereby.5 R (CA176/16) v Police [2016] NZCA 403 at [26]; Butler v Police [2016] NZCA 27 at [3].6 Terry v Police, above n 1.This ground was appropriately dealt with by the District Court on appeal. There is nojustification for a further appeal on this basis.[14] Mr Terry pointed to a typographical error in the recitation of the charge in thefirst iteration of the police written submissions before the Justices of the Peace. Theerror was a reference to "Picton" rather than referring to "Blenheim".7 The DistrictCourt Judge specifically dealt with this point and found this ground had no weight.The Judge said:[19] Various other grounds of appeal emerged in Mr Terry's oralsubmissions including:• A typographical error in the recitation of the charge in the firstiteration of the police written submissions rendered those submissionsincorrect and incompetent.• The JPs' reference to cases without providing Mr Terry with copies ofthose cases meant they could not properly or validly cite those casesin their decision.• The JPs were wrong not to award him costsNone of those grounds carry any weight. Nor does anything else mentionedby Mr Terry in his oral or written submissions establish to a miscarriage ofjustice.This ground was appropriately dealt with by the District Court on appeal. There is nojustification for a further appeal.[15] Mr Terry also raised that the matter was called on 25 July 2018 it wasadjourned for a defended hearing. Mr Terry had been ready to proceed and says theadjournment should not have been allowed as it prejudiced him. That issue was alsodealt with by the District Court on appeal as follows:[14] Paragraph 10: because the Judge Alone Trial was not conducted on25 July 2018 when it was first scheduled by a Judge then any subsequent trialwas a nullity. Further that the defendant had attended at Court on 25 July 2018and was ready to proceed on that day.[15] I reject that submission. The record of hearing notes that on 9 July2018 Mr Terry entered a not guilty plea to the charge and was remanded atlarge to 25 July 2018 at 10:00 am for a defended hearing. The record then7 Mr Terry provided a copy of these submissions following the hearing in this court.shows that on 12 July 2018 the Judge Alone Trial was rescheduled by a DeputyRegistrar to 23 August 2018. The accompanying record notes:Police advise a full day would be required. JPs have reshuffled theirroster to accommodate hearing on 23 August 2018 at 10:00 am.Mr Terry personally given notice of hearing at Blenheim Court maincounter 11:54 am 12 July 2018.The record further notes on 13 July 2018:Adjournment received from police – officer in charge of caseunavailable on 23 August 2018 due to pre-arranged training inWellington. Adjourned to 6 September 2018 for JAT one day to beallocated. (David Whyte JP).[16] I find the defendant was never prejudiced by the earlier adjournment.The earlier adjournment was sanctioned by law with ss 167 and 168 CriminalProcedure Act 2011 providing a judicial officer and a Registrar powers toadjourn a case. In this case those powers were on the face of the record,properly exercised. The defendant was always kept informed. He was neverprejudiced. He was at all times remanded at large without any strictures orbail conditions. He then duly appeared and defenced the charge on the trialdate. No miscarriage of justice ever occurred on that basis.This ground was appropriately dealt with by the District Court on appeal. There is nojustification for a further appeal.[16] Mr Terry also raised a number of separate matters such as the confiscation ofhis motor vehicle which are not before me in this leave application. I note the otherremedies available to contest the impoundment. The District Court Judge noted:[17] Paragraph 11: the impounding of Mr Terry's motor vehicle was notconstitutionally or ethically proper. I understand from Mr Terry that he hasnever received his vehicle back after it was impounded. However s 96(1AB)Land Transport Act provides that an enforcement officer may seize andimpound a motor vehicle for 28 days if the officer believes on reasonablegrounds that a person driving the vehicle has failed to stop as signalled,requested or required under s 114. I note that Mr Terry had rights of appealpursuant to s 102 of the Land Transport Act 1998 against impoundment of thevehicle or a power of appeal against refusal of police to direct a release of animpounded vehicle pursuant to s 110 of the Land Transport Act. I am unawareif he has or is availing himself of either of those two avenues of redress. Theonly finding I make in this respect is that it does not amount to a miscarriageof justice in respect of the JP's findings on this charge.[17] Mr Terry also raised issues which appear to have no bearing on this caseincluding some earlier, separate, incidents in which he and the police had beeninvolved in Christchurch and in Blenheim. In addition, Mr Terry wanted to debatewith the Crown and the Court errors in nine Court of Appeal judgments which hadbeen referred to by the Justices of the Peace. These issues have no bearing on theleave application here.[18] Finally, Mr Terry also made more wide-ranging submissions relating toimportant issues such as the appointment of judges, the Bill of Rights and the PrivyCouncil decision in Taito.8 While important, these issues are not directly engaged inthis leave application.Conclusion[19] The application for leave to appeal raises no ground which are of general orpublic importance. A miscarriage of justice will not occur if the appeal is not heard.Therefore, the application for leave has not met the requirements for a second appeal.It is dismissed._________________Grice JSolicitors:Crown Solicitor, Nelson8 Taito v R [2002] UKPC 15, [2003] 3 NZLR 577.