TERRY v POLICE [2020] NZHC 3173

TERRY v POLICE [2020] NZHC 3173 [2 December 2020]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYI TE KŌTI MATUA O AOTEAROATE WAIHARAKEKE ROHECRI-2020-406-009[2020] NZHC 3173BETWEEN ROBERT FRANK TERRYAppellantAND NEW ZEALAND POLICERespondentHearing: 24 November 2020Counsel: Appellant in personJ M Webber for respondentJudgment: 2 December 2020RESERVED JUDGMENT OF DOBSON J[1] On 4 March 2020, the appellant (Mr Terry) contested a traffic infringementnotice before two Justices of the Peace (JPs) in the Blenheim District Court. He hadbeen charged with driving a vehicle on a road at a speed exceeding the applicablespeed limit of 60 kilometres per hour. In the notice of hearing in respect of theinfringement notice, the location of the offence was specified as occurring at Seddon.[2] At the hearing, Mr Terry represented himself and cross-examined the onlyPolice witness, Senior Constable Monaghan, at some length as to the details of thelocation at which his speed had been recorded. In the course of his cross-examinationof the constable, Mr Terry lodged an objection with the Court at the lateness ofdisclosure to him of the prosecution documents, which he took to have been providedwith so short a time before the hearing that he had essentially been taken by ambush.He also complained that instalments of the disclosure were provided without an index,to which he was entitled.[3] The JPs found the elements of the offence had been made out. They convictedMr Terry and fined him $230 plus costs of $30.[4] Mr Terry appealed that decision, with his appeal being heard in the BlenheimDistrict Court on 30 June 2020. The hearing did not go well. There were spiriteddifferences between Mr Terry and the District Court Judge on whether Mr Terry wasadvancing the grounds he had cited in his notice of appeal, or other grounds, some ofwhich may have challenged the finding that the prosecution had proven the locationat which the alleged speeding had occurred. In relatively short order, the Judgedetermined that the appeal was dismissed for want of prosecution.[5] On 15 October 2020, Simon France J granted Mr Terry leave to bring a secondappeal (out of time), being concerned that there had not been a proper hearing of thematter on the first appeal.1[6] The grounds of appeal against his conviction were that the Crown had beenunable to discharge the onus of proving that he drove a vehicle on State Highway Oneat Seddon on the relevant date at a speed exceeding 60 kilometres per hour. Thesecond ground of appeal was that the delayed Police disclosure prevented the adequatepreparation of his defence. He claimed that full disclosure had been received from thePolice prosecution service on 2 March 2020, with the hearing set down on 4 March2020.[7] Mr Terry's written submissions in support of the present appeal included thefollowing:3. The N.Z. Police allege that Mr Robert Frank Terry Crown AppointedSenior Counsel to the Supreme Court, drove a vehicle on Statehighway one at Seddon on the 4th September 2019 exceeding 60 Kmsper hour.4. The time, date, place and the identity of the defendant are not indispute.[8] When questioned on the inconsistency between his first ground of appeal andthe acknowledgement in para 4 of his written submissions, Mr Terry insisted that that1 Terry v Police [2020] NZHC 2708.paragraph had been stated by the Crown. There is no reference elsewhere in thewritten submissions to Mr Terry dissociating himself from that unqualifiedacknowledgement, or attributing it to the Crown. After numerous exchanges with himduring his submissions in which I sought to understand how he distanced himself fromthe unqualified acknowledgement and attributed it to the Crown, Mr Terry submittedthat it was clear and that if I did not understand it, I should go and do some research.[9] I was not alone in this. Mr Webber's submissions for the respondent, whichtook account of Mr Terry's written submissions, explicitly noted that Mr Terry did notdispute the time, date and place or that he was the driver, and the scope of theremainder of the respondent's submissions relied upon that acknowledgement.[10] Mr Terry stated repeatedly that, unlike most New Zealanders, he was entirelycompetent to debate the law and the facts in any court in New Zealand. Given his ownassessment, the Court is entitled to rely on the plain meaning of his writtensubmissions, which removes any basis for the first ground of the appeal.[11] Against the prospect that holding Mr Terry to the terms of his submissions isin some way unfair, I have analysed the adequacy of the prosecution evidence, giventhat it is open to Mr Terry to argue that whatever the extent of his acknowledgementsnow, he is still entitled to have the Court assess the adequacy of the evidence that wasadduced by the prosecution.[12] Constable Monaghan described how he locked in a recording of the speed of aPeugeot vehicle travelling towards him in a 60 kilometres per hour zone on theoutskirts of Seddon. Having recorded that vehicle's speed at 87 kilometres per hour,the constable executed a U-turn and put on the warning lights on his vehicle. He gaveevidence of the vehicle pulling in to a side road off State Highway One on the outskirtsof Seddon, namely Tetley Street. When monitoring the Peugeot vehicle travelling inthe opposite direction, Constable Monaghan described the location of his own vehicleas being between two other streets, Fell and Goulter Streets.[13] In cross-examination, Constable Monaghan was, at one point, confusedbetween Tetley and Goulter Streets. However, I am satisfied that there was adequateevidence for the JPs to find that the Peugeot vehicle had been logged at 87 kilometresper hour in the 60 kilometres per hour zone between Goulter Street at one end of thatstretch of State Highway One, and either Fell or Tetley Street at the other end. TheJPs' decision found that the incident occurred between the two of these streets thatwere furthest apart, namely Goulter and Tetley Streets, which was clearly open to themon the constable's evidence.[14] Mr Terry did not challenge the constable's identification of him as the driverof the Peugeot vehicle, or the time at which the driving had been observed.[15] Towards the conclusion of his cross-examination, Mr Terry put to the JPs thatthe prosecution had not proved the location of Tetley Street because its name was notendorsed on the aerial map that had been produced by Constable Monaghan. He alsocontended that there had been no proof that the Peugeot's speed had been loggedbetween Fell Street and Goulter Street.[16] Answers from Constable Monaghan included that he was not required toestablish that the speed had been logged between Fell and Goulter Streets, but only onthe road, which was clearly State Highway One, in the 60 kilometres per hour zonethat the evidence had focused upon. For their part, one of the JPs made the point thatthe name of Tetley Street did not need to be endorsed if the witness was familiar withit, as Mr Terry knew.[17] As a matter of law, Constable Monaghan's responses to Mr Terry's questionswere correct: the prosecution did not need to establish the location at which his speedwas locked with the precision that Mr Terry's questions expected. What had to beestablished was that the vehicle had been logged at 87 kilometres per hour whilstMr Terry was driving and in an area where the speed limit was 60 kilometres per hour.There was ample evidence on which the JPs could be satisfied on that point.[18] In responding to the appeal, Mr Webber cited two decisions which confirm thatthe precise location at which an alleged traffic offence occurred is not an essentialelement of the charge.2 Mr Terry protested about those cases being cited because theyboth involved charges of dangerous driving, which is a charge under a different sectionof the Land Transport Act 1998 and, on his analysis, were therefore not applicable tothe elements required to be proven in his case.[19] That is not a valid basis for distinguishing the reasoning in those cases. Thepoint which applies generally to the elements required to be proven in relation to bothforms of driving charge is that it is unnecessary to establish the precise point on aroadway at which the conduct forming the basis of the charge occurred.3 Consistentlywith those decisions, the terms of the charge here were merely that the speedingoccurred "on a road". Mr Terry's expectation of proof with absolute accuracy of thepoint on the roadway where the speeding occurred is misconceived.[20] The second ground of appeal is that the prosecution disclosure was providedto him without an index, and with inadequate time for him to adequately prepare hisdefence. The disclosure occurred in three tranches. First, on 15 November 2019 whenformal documents, accompanied by a disclosure index, were provided to Mr Terry.Next, full disclosure was couriered to him on 12 February 2020. There was nodisclosure index on that occasion but the covering letter confirmed that nothing hadbeen withheld under the provisions of ss 15 to 18 of the Criminal Disclosure Act 2008.Thereafter, on 27 February 2020, an updated formal statement of Constable Monaghanwas provided, together with a certificate of accuracy for the radar device.[21] Given the scope of the discovery, I am not persuaded that Mr Terry wasimpaired in any way in his vigorous defence of the charge by the absence of indiceson the two latter instalments of disclosure. Given the evidence of the New ZealandCouriers' track-it record, I am also not persuaded that the disclosure was only availableto Mr Terry in completed form as little as two days prior to the hearing. Again, therecord of the conduct of his defence does not suggest that he was materially impairedin that regard.2 Cunningham v Ministry of Transport CA179/77, 13 June 1978; Robinson v Police HC AucklandA184/00, 27 February 2001 at [25].3 Robinson v Police, above n 2, at [23].[22] I accordingly find that both grounds of the appeal against conviction cannot bemade out and the appeal is dismissed.[23] Mr Terry labelled his submissions in support of his appeal as including anappeal against the fine and costs. However, he did not address the extent of the penaltyat any stage. The fine and costs ordered were inarguably within range and, to theextent this was also to be treated as an appeal against sentence, that is also dismissed.Dobson JSolicitors:Crown Solicitor, BlenheimCopy to:The appellant