TERRY v THE POLICE [2023] NZHC 2719

TERRY v THE POLICE [2023] NZHC 2719 [28 September 2023]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYI TE KŌTI MATUA O AOTEAROATE WAIHARAKEKE ROHECRI-2023-406-010[2023] NZHC 2719BETWEEN ROBERT FRANK TERRYAppellantAND THE POLICERespondentHearing: 27 September 2023Appearances: R F Terry self-represented for AppellantJ W N Cameron and J T Vuataki for RespondentJudgment: 28 September 2023JUDGMENT OF GRICE J(Leave to bring a second appeal)[1] On 14 September 2022, Mr Terry was found guilty of failure to comply with alawful requirement pursuant to the Land Transport Act 1998 (the LTA) by two Justicesof the Peace at the Blenheim District Court.1 Mr Terry then unsuccessfully appealedthat decision before Judge Hinton, again in the Blenheim District Court.2 He nowseeks leave of this Court to bring a second appeal against this conviction.[2] In their decision, the Justices of the Peace referred to evidence of Mr Terry'ssix-month disqualification from driving, issued by Judge Rielly on 5 August 2021 forearlier charges.3 The notice letter identified that Mr Terry remained unlicensed until1 Land Transport Act 1998, ss 52(1)(c) and 113(2)(e) (maximum penalty of a fine not exceeding$10,000).2 Police v Terry [2023] NZDC 11402 [Decision on Appeal].3 Decision on Appeal, above n 2, at [3]; discussed further below.reinstatement of his licence to drive.4 Mr Terry was then stopped while driving on22 April 2022, at which point Mr Terry had still not received a reinstated licence. TheSenior Constable then advised that he was not to drive until his licence had beenreinstated or would risk his vehicle being impounded. On 10 May 2022, Mr Terry wasthen stopped again while driving, without having reinstated his licence.5 Before theJustices of the Peace, Mr Terry did not (and still does not) challenge issues of date,place or other details of the charge.6[3] In the course of proceedings, Mr Terry has made wide ranging oral and writtensubmissions. His submissions touch on various matters that have already been thesubject of earlier appeals, as I refer to below. The current matter before this Court islimited to the issue of leave to bring a second appeal.Background[4] While Mr Terry was disputing the present charges before Judge Hinton, theappellant was also pursuing an appeal against a 9 July 2021 decision of Judge Rielly,convicting Mr Terry of two charges of driving while suspended and one charge ofwilful damage.7 Judge Rielly subsequently disqualified Mr Terry from holding orobtaining a driver's licence for six months, on 5 August 2021.8 On 22 October 2021,Edwards J dismissed Mr Terry's appeal against conviction and sentence in the HighCourt.9 On 19 May 2022, the Court of Appeal dismissed Mr Terry's application forleave to bring a second appeal against the decision of Judge Rielly.10 Mr Terry thensought leave from the Supreme Court to appeal the Court of Appeal's decisiondeclining leave. That was dismissed.11[5] At the time he was disputing the 2021 convictions, Mr Terry was also appealinga 4 March 2020 traffic infringement notice given by two Justices of the Peace in the4 Pursuant to s 82A(2) of the LTA, a person's driver licence remains of no effect when a period ofsuspension or disqualification ends until they apply to the Director of Land Transport to have thelicence reinstated. This can be done through driver licencing agents, being VTNZ or the AA.5 Decision on Appeal, above n 2, at [5].6 Decision on Appeal, above n 2, at [3].7 Police v Terry [2021] NZDC 13487.8 Terry v Police [2022] NZCA 198 at [1] [CA Decision].9 Terry v Police [2021] NZHC 2838 [2021 Decision].10 CA Decision, above n 8.11 Terry v Police [2022] NZSC 137.Blenheim District Court.12 Mr Terry had appealed this decision to the District Court.This was dismissed by Judge Ruth in June 2020.13 This resulted in a loss of demeritpoints for Mr Terry, which meant he was served with a three month licence suspensionon 7 July 2020.14 Leave was given by Simon France J to bring a second appeal to theHigh Court, as his Honour was concerned that there had not been a proper hearing ofthe matter on the first appeal before Judge Ruth.15 Justice Dobson then dismissedMr Terry's second appeal.16 Mr Terry sought further leave to appeal the decision ofDobson J, however, because the decision of Dobson J was a second appeal, SimonFrance J explained that the decision was final and there was no jurisdiction to grant afurther appeal.17[6] In summary, at the point Mr Terry appeared before Judge Hinton on the currentcharges, he had previously been convicted of traffic and driving related offences in2020 and 2021. The avenues of appeal in respect of both sets of convictions had alsobeen exhausted by Mr Terry.[7] The District Court—and this Court—is bound by the final decisions ofDobson J (in respect of the 2020 convictions) and Edwards J (in respect of the 2021convictions). It appears that Mr Terry was first disqualified from driving on 7 July2020 and has been ever since, meaning that he was disqualified at the point that JudgeReilly ordered the further and presently relevant six-month suspension in August2020.18[8] Judge Hinton's reasoning in the decision now on appeal is brief, the substantiveelements of which are set out in full below:19[7] The question for this Court on appeal is whether there has been amiscarriage of justice occur [sic] in relation to assessment of the evidence orfor any reason.12 Terry v Police [2020] NZHC 3173 [2020 Decision].13 2020 Decision, above n 12, at [4].14 2021 Decision, above n 9, at [7].15 Terry v Police [2020] NZHC 2708; it seems that the District Court Judge and Mr Terry had a rathervigorous discussion on whether Mr Terry was actually advancing any proper grounds of appeal.16 2020 Decision, above n 12, at [22].17 Terry v Police [2021] NZHC 513.18 2021 Decision, above n 9, at [7].19 Decision on Appeal, above n 2.[8] Mr Terry accepted that he had been disqualified on 5 August 2021.His submission on appeal was however simply that he was not disqualifiedbecause he had appealed or been granted the right to a second appeal of thedisqualification, and that appeal had not been dismissed until 17 May 2022[sic], that date being after 10 May 2022 when he was stopped by the Police.[9] Mr Terry's proposition on appeal was simply that the disqualificationwas not in force at that time he was forbidden to drive. Mr Terry advised heaccepted the decision dismissing the appeal but the fact is it was not delivereduntil 17 May 2022 [sic], precluding any disqualification being in effect priorto then and precluding any offence being committed.[l0] The submissions for the police at the appeal hearing were brief and tothe effect that Mr Terry had been disqualified on 5 August 2021 at the end ofwhich period he was required to get his licence reinstated and he had not doneso. This meant that Mr Terry was guilty of the charge under s 113(2)(e) of theAct.[11] So the ambit of the appeal was narrow indeed. Mr Terry had no issuewith the disqualification and dismissal of his appeal(s). Prior to 17 May 2022[sic] there had, presumably, been an appeal already dismissed with leave beinggranted for a second appeal pursuant to s 237.[12] Indeed, Mr Terry, I believe, if l followed him correctly, submitted thats 237 of the Criminal Procedure Act, which deals with a right of appeal againstdetermination of a first appeal court automatically triggered for him thebenefit of non-existence of the disqualification which he accepted had been inforce.[13] Mr Terry did not refer to any order of the Court or specific statutoryprovision which operated to confer on or grant to him a suspension fromdisqualification in the circumstances which prevailed.[14] I could not accept that the Justices have proceeded here on any basisthat affords any ground of appeal advanced by Mr Terry against the decisiondated 14 September 2022. There was nothing advanced by Mr Terryconstituting a miscarriage of justice here which required further consideration.[9] Mr Terry argues that Judge Hinton was wrong to dismiss his appeal. Thisappears to be for the same reasons advanced before Judge Hinton. Mr Terry says thatat the time he was stopped by Police on 10 May 2022, he was awaiting the Court ofAppeal's determination on the leave to appeal the 2021 decision that had resulted inhis disqualification. He says this effectively 'paused' the disqualification and thereforehe cannot be guilty of infringing it or any notice in its regard.[10] Pursuant to s 237 of the Criminal Procedure Act 2011, this Court must not grantleave for a second appeal unless it is satisfied that:(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred or may occur unless theappeal is heard.[11] The charge relates to a traffic matter. Mr Terry's appeal does not raise anyissues of general or public importance. It therefore must be determined whether amiscarriage of justice may have occurred for any other reason, or will occur, unlessleave is granted.[12] Mr Terry's submissions do not point to any errors in Judge Hinton's reasoning.As explained by the Court of Appeal, applying for leave to appeal does not operate asthe appeal itself.20 Neither the fact of filing the application, nor the leave decisionitself can have a bearing on the validity of the suspension or disqualification.Therefore, because Mr Terry was seeking leave of the Court of Appeal at the time thathe was stopped in relation to the current charges on 10 May 2022, this did not havethe effect of 'pausing' or otherwise affecting the validity of the disqualification issuedin August 2021 such that he cannot be guilty of an offence under s 113 of the LTA. Asconfirmed by the Court of Appeal,21 this means Mr Terry has been validly disqualifiedfrom driving since July 2020.[13] Section 112 of the LTA operates so that a first appeal of a conviction attractingdemerit points has the effect of 'pausing' any notation of the demerit points—andtherefore any subsequent suspension or disqualification from driving—until thedetermination of the appeal.22 However, the same is not true for appeals concerningsuspensions or disqualifications.23 So, while the 2020 charges appealed by Mr Terryhad the benefit of this 'pause' before the first appeal decision of the District Court, thecurrent appeal does not.[14] Pursuant to s 106 of the LTA, there is a general right of appeal to the DistrictCourt from a decision to revoke or suspend a person's licence. However, the decisionor its effects are not 'paused', as set out in s 106(3):20 CA Decision, above n 8, at [5].21 CA Decision, above n 8, at [5].22 Land Transport Act, s 112(1).23 There is also no 'pause' where a person seeks leave to bring a second appeal against a convictionattracting demerit points.[e]very decision appealed against under this section continues in forcepending the determination of the appeal, and no person is excused fromcomplying with the provisions of this Act on the ground that any appeal ispending.[15] Section 107 of the LTA allows further appeal of a District Court's decision todisqualify a person's licence to the High Court. Although s 107(2) of the LTA allowsthe District Court to defer the operation of the disqualification order pending the HighCourt's determination of the appeal, this deferral is not automatic and only occurs onthe application of the person whose licence is in issue. Deferral can also be declinedby the District Court.24[16] It follows that Mr Terry's application for leave to bring a second appeal mustbe dismissed. The disqualification incumbent on his licence at the time he was stoppedby Police on 10 May 2022 was valid and remained unaffected by the pending leavedetermination of the Court of Appeal. In the absence of any other law operating to'pause' Mr Terry's disqualification in the current circumstances, there is no issue inthe reasoning of either the Justices of the Peace in the first instance, or Judge Hintonon appeal. Absent any other indication of a miscarriage of justice, Mr Terry has notsatisfied the criteria for leave to bring a second appeal set out in s 237 of the CriminalProcedure Act 2011.[17] Finally, Mr Terry also seeks to dispute aspects of Judge Reilly's determinationfrom 2020. However, this Court is bound by the second appeal decision of Edwards J,which upholds Judge Reilly's judgment. Mr Terry cannot relitigate Judge Reilly'sdecision.____________________Grice JSolicitor:O'Donoghue Webber, NelsonCrown Law, Wellington24 Land Transport Act, s 107(2); a person can appeal a District Court decision to decline deferral,however, pursuant to s 107(3).