TERRY v NEW ZEALAND POLICE [2020] NZHC 2708

TERRY v NEW ZEALAND POLICE [2020] NZHC 2708 [15 October 2020]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYI TE KŌTI MATUA O AOTEAROATE WAIHARAKEKE ROHECRI-2020-406-9[2020] NZHC 2708BETWEEN ROBERT FRANK TERRYAppellantAND NEW ZEALAND POLICERespondentOn the papersCounsel: Mr Terry in personA R Goodison for RespondentJudgment: 15 October 2020JUDGMENT OF SIMON FRANCE J[1] Mr Terry seeks leave to bring a second appeal. The application is itself out oftime, 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 theBlenheim District Court. I do not have the full documentation but it appears from afull transcript of the hearing (which is available) that the District Court struggled tounderstand 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 wantof prosecution".[3] The respondent opposes the granting of leave on the basis that no error in theoriginal decision is apparent. That may or may not be the case but I am not satisfiedMr Terry has had the first appeal opportunity the law entitles him to. Manifestly theappeal was prosecuted – Mr Terry was present and seeking to advance it. That he wasdoing so poorly or in an irritating manner (if that was the case) does not allow aconclusion the appeal is not being prosecuted. Further, the nature of the hearing as itappears 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 theapplication to bring a second appeal on the basis that a miscarriage may otherwiseoccur. The miscarriage would be the loss of the first right of appeal. The remedy isto allow this appeal opportunity. Accordingly, I extend the time within which leave tobring 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 thisruling. A one-hour slot is to be allocated.[6] Mr Terry is to file submissions two weeks before. The focus of the submissionsshould be on his substantive challenge to the decision of the Justices of the Peace. Theevents 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. Therespondent will have 25 minutes to reply. Mr Terry would then have 5 minutes for hisreply.____________________Simon France JSolicitors:Crown Solicitor, Nelson for Respondent