TERRY v NEW ZEALAND POLICE [2020] NZHC 1682

TERRY v NEW ZEALAND POLICE [2020] NZHC 1682 [14 July 2020]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYI TE KŌTI MATUA O AOTEAROATE WAIHARAKEKE ROHECRI-2020-406-4[2020] NZHC 1682BETWEEN ROBERT FRANK TERRYAppellantAND NEW ZEALAND POLICERespondentOn the papersCounsel: Appellant in personA R Goodison for RespondentJudgment: 14 July 2020JUDGMENT OF SIMON FRANCE J[1] Mr Terry was convicted on 24 October 2018 of failing to stop his vehicle whenrequired to do so by police officers. He was fined $1,500 plus $130 court costs.1 Therewas substantial evidence, and the presiding Justices issued a lengthy decision (149paragraphs).[2] Mr Terry appealed. The conviction appeal was unsuccessful but the fine andcourt 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.[4] I issued two Minutes, the effect of which was to indicate there were two leaveapplications 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 addressedand to allow time for Mr Terry to address this if he wished, and to advise that pursuantto s 328 of the Criminal Procedure Act 2011 I had determined that the leave applicationwould 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 isrelevant to the other decision. It is not easy to discern the point but it appears to bethat there was an adjournment of the original hearing of the charge. Subsequent to theadjournment and before the hearing occurred on the amended date, the Policedisclosed further information on which they relied. Mr Terry would argue that is notpermissible. This was not raised at the first appeal.[7] The judgment it is sought to appeal addresses several grounds – bias, factualinability to stop his vehicle, incorrect charging, nullity (due to the initial fixture beingvacated), 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 appealswhere there is a matter of general or public importance, or the possibility of amiscarriage. Neither circumstance arises here.[9] Returning to the issue of extending time within which to appeal, the factorsrelevant to the exercise of that discretion were articulated in R v Knight.3 The notablefeature here is that no explanation has been offered to explain a significant period ofdelay. The offence in question is not of the most serious type and resulted in no actualpenalty. In the absence of any point of general importance, it is not a case in which toexercise the discretion to extend time within which to appeal. It is a matter which has3 R v Knight [1998] 1 NZLR 583.had two airings and the interests of justice do not require a further exploration of theincident.[10] The application to extend time within which to file an application for leave tobring a second appeal is declined._____________________Simon France JSolicitors:Crown Solicitor's Office, Nelson for Respondent