JACKSON v NEW ZEALAND POLICE [2019] NZCA 247

JACKSON v NEW ZEALAND POLICE [2019] NZCA 247 [24 June 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA594/2018[2019] NZCA 247BETWEEN TIMOTHY JOHN JACKSONApplicantAND NEW ZEALAND POLICERespondentHearing: 28 May 2019Court: French, Miller and Lang JJCounsel: Applicant in personS K Barr for RespondentJudgment: 24 June 2019 at 3 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Mr Jackson was convicted on a charge of driving at a dangerous speedfollowing a Judge alone trial before Judge DJL Saunders in the District Court.1 Hisappeal against conviction was dismissed by Nation J on 3 September 2018.2 He nowseeks leave to bring a second appeal against conviction to this Court.1 Police v Jackson [2016] NZDC 16002.2 Jackson v Police [2018] NZHC 2297.The statutory test[2] Section 237(2) of the Criminal Procedure Act 2011 prohibits this Court fromgranting leave to bring a second appeal unless it is satisfied the proposed appealinvolves a matter of general or public importance or, alternatively, a miscarriage ofjustice has occurred or may occur unless the appeal is heard. In McAllister v R thisCourt confirmed that the statutory test sets a higher threshold for a second appeal.3The proposed questions on appeal[3] First, Mr Jackson questions whether Nation J determined the appeal inaccordance with the principles enunciated by the Supreme Court in Sena v Police, ajudgment delivered the week before we heard the present application.4[4] Secondly, Mr Jackson points out that the recording of the hearing inthe District Court was no longer available by the time his appeal was heard inthe High Court. As a result, Nation J determined the appeal without the benefit ofa transcript of that hearing.5 Mr Jackson contends that the absence of a trial transcriptmeant he could not properly advance his appeal in the High Court. As result,a miscarriage of justice will occur if he is not granted leave to bring a second appealto this Court. If the proposed appeal is successful, Mr Jackson will ask the Court toquash the conviction but not order any rehearing in the District Court.Background[5] On 20 December 2015 a police officer was operating a speed camera from astationary vehicle parked on State Highway One (SH1) to the north of the Kaikouratownship. At 1.46 pm the speed camera recorded a motorcyclist travelling towardsKaikoura at a speed of 145 kilometres per hour. The speed camera operator was able3 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.4 Sena v Police [2019] NZSC 55.5 Issues arising out of the lack of any transcript, coupled with the procedure adopted bythe High Court when it heard an earlier appeal by Mr Jackson against conviction, have alreadyoccupied the attention of this Court. It granted leave to Mr Jackson to bring a second appeal and,having found the High Court appeal to have been a nullity, suggested that Mr Jackson seeka re-hearing in that Court: Jackson v Police [2017] NZCA 374 and Jackson v Police [2018] NZCA194. He did so, and the present application follows the re-hearing of the appeal by Nation J.to obtain the registration number of the motorcycle and a general description ofthe motorcyclist.[6] The speed camera operator relayed this information to another officer ina patrol vehicle in the vicinity of Kaikoura. Approximately 15 minutes later thisofficer found a motorcycle and motorcyclist matching the description he had beengiven parked at a service station in Kaikoura.6 The officer then spoke to this person,who turned out to be Mr Jackson. He also took photographs of Mr Jackson and hismotorcycle.The hearing in the District Court[7] At the hearing in the District Court, the photograph produced by the speedcamera was not sufficiently clear to depict the number plate displayed on the rear ofthe motorcycle in the photograph. To remedy this the prosecution produced anenlarged version of the same photograph and this confirmed that the registrationnumber of the motorcycle was A6WZY. The photograph also showed that the rider ofthe motorcycle was wearing a backpack, a black and white helmet and a pair of whitecalf-length boots. There is no dispute that Mr Jackson's motorcycle hasthe registration number A6WZY, and that when the officer located him in KaikouraMr Jackson was wearing a backpack, helmet and boots similar to those worn bythe rider of the motorcycle depicted in the speed camera photograph.[8] Judge Saunders considered this evidence was sufficient to identify Mr Jacksonas having been the rider of the motorcycle depicted in the speed camera photograph.7The Judge also accepted that the speed recorded using the speed camera detectiondevice amounted to correct and reliable evidence.8[9] The Judge also found that, as a matter of law, the officer who tookthe photographs of Mr Jackson and his motorcycle in Kaikoura had the necessaryauthority to detain him whilst he established his identity and inspected the motorcycle6 Mr Jackson told us that this officer had one of the letters or numbers of the registration numbertransposed but otherwise the number in the possession of the officer matched the registrationnumber of his motorcycle.7 Police v Jackson, above n 1, at [23].8 At [24].for any defects.9 He therefore did not accept that Mr Jackson had been unlawfullydetained at the service station or that photographs taken during that period wereimproperly obtained.10[10] The Judge then considered Mr Jackson's second argument, which was thata speed of 145 kilometres per hour was not sufficient of itself to constitute the offencecharged. The Judge accepted this proposition but considered that other factorsrendered the conduct in the present case dangerous.11 These included the fact thatthe gazetted speed limit for the area in which the motorcycle was travelling was80 kilometres per hour, and the highway was subject to medium to high traffic use atthat time.12 In addition, the entrance to a camping ground was situated just north ofthe speed camera.13 There was a likelihood of pedestrians and vehicles being inthe area given the time of day and the holiday period in which the incident occurred.14The Judge considered there was a distinct and reasonable possibility that Mr Jacksonwould not have been able to safely and appropriately deal with any emergency thatmight have arisen whilst he was travelling at 145 kilometres per hour.15 The examplehe gave was of pedestrians or motorists leaving the camp ground and crossing orentering the highway.16The appeal in the High Court[11] After referring to s 232 of the Criminal Procedure Act, which governs firstappeals, Nation J set out several facts that were not in dispute.17 These included thefact that at 1.46 pm on 20 December 2015 a speed camera photographed a motorcyclisttravelling north along SH1 near Kaikoura at a speed of 145 kilometres an hour. Themotorcyclist was wearing a black pack back, white boots and a black and white helmet.The enlarged photograph of the registration plate showed the registration numberA6WZY.9 At [18].10 At [18]–[22].11 At [28]–[30].12 At [29(1)–(2)].13 At [29(3)].14 At [29(5)].15 At [30].16 At [30].17 Jackson v Police, above n 2, at [37].[12] In addition, there was no dispute regarding the road conditions or generalcircumstances in which the speeding was recorded.18 The speed camera was situatedjust south of a pylon on the eastern side of the main highway, a short distance fromthe entrance to a camping ground. Any person or vehicle leaving the camping groundwould have had a restricted view to the south by virtue of vegetation on the easternside of the road and the curve of the road. The camping ground entrance was alsoa short distance from a sign describing a maximum speed limit of 80 kilometresper hour.[13] Similarly, the Judge recorded there was no dispute that a police officer foundMr Jackson and his motorcycle at a service station in Kaikoura approximately15 minutes later.19 He took photographs of both Mr Jackson and the motorcycle andthese confirmed the registration number of Mr Jackson's motorcycle was the same asthat on the motorcycle depicted in the photograph taken by the speed camera.Mr Jackson was also wearing a backpack, helmet and distinctive calf-lengthwhite boots similar to those recorded in the speed camera photograph.[14] The Judge then analysed in considerable detail Mr Jackson's argumentsregarding the legality of his detention at the service station. He concluded thatthe officer had detained Mr Jackson lawfully at the service station under s 113 ofthe Land Transport Act 1998.20[15] The Judge then considered the effect of the absence of a trial transcript.He noted that in Kingi v R, this Court observed that the mere fact that there is no recordof a trial transcript is not in itself a ground for finding a conviction unsafe or forholding that a miscarriage of justice has occurred.21[16] The Judge then concluded:22[51] I consider, with the respondent having been able at trial to identifyMr Jackson as the rider of the motorcycle when it was recorded travelling at145 km/h and as the same rider of the motorcycle identified and photographed18 At [38].19 At [40].20 At [48].21 At [50] citing Kingi v R [2016] NZCA 160 at [30].22 Jackson v Police, above n 2.at the service station in Kaikoura a short time later, the availability ofa transcript from the hearing would have been of no assistance to him on hisappeal insofar as the identification of him as the speeding motorcyclist wasconcerned.[52] With the photographic evidence as well as the evidence from bothConstable Jackson and Mr Jackson himself, having established that he wasthe motorcyclist at the service station in Kaikoura with the motorcycleregistration number A6WZY, there was a proper basis on whichConstable Jackson could ask him to remain at the service station for as longas was necessary for him to complete obtaining all the details as to hisidentification and to take photographs that recorded the appearance of bothhim and the motorcycle in a manner sufficient to identify him asthe motorcyclist who had been speeding earlier.[53] In his submissions, Mr Jackson did not explain just what evidencemight have been in a transcript to prove he had been unlawfully detained. Evenif there was a suggestion of this, the detainment would have been for a briefperiod. It would have been for the purpose of recording his identity at the timethrough the photographs that were taken. It would have been a situation wherethe Judge would have been entitled to exercise his discretion unders 30 Evidence Act 2006 to admit the evidence that was obtained.[17] Finally, the Judge analysed the factors that potentially made the speeddangerous at the time the speed camera photograph was taken. He considered theseto be clear without the need for a transcript. On this point the Judge concluded:[66] Again, the circumstances which the Police relied upon are clearwithout the Court having a transcript. There is no dispute that the speedingoccurred near the middle of the day, at the height of summer on 20 December,close to Christmas. It was at a time when it could be expected traffic onState Highway 1 would be moderately heavy. The area where Mr Jackson wasspeeding was close to a camping ground and close to the beach. There wasthe potential for an emergency situation, particularly through a pedestriancrossing the highway to or from the camp ground. The Judge was entitled tofind there would have been a particular difficulty for any motorist who mighthave been trying to exit the camp ground, given the limited visibility andthe expectation that any opposing vehicle would be approaching at less than100 km/h.[67] In his written submissions of 29 November 2016, Mr Jackson said hehad given evidence that he was familiar with the relevant stretch of road, saidthat he had not passed the access to the camping ground at excess speed, thatcoastal traffic had been moderate to light at the time and there was very littlepedestrian or vehicle activity in that area.[68] Even if a transcript of the evidence had shown that this was hisevidence, the evidence, as accepted by Mr Jackson, would have been sufficientfor the Judge to find that Mr Jackson had been travelling at 145 km/h in an80 km/h area where the view of the road ahead was limited, pedestrians orother vehicles could have come quite suddenly into his path in a situationwhere they would not have been expecting a motorcyclist to be travelling at aspeed approaching 145 km/h.[69] In all these circumstances, there was a sufficient evidential basis onwhich the Judge could conclude that the speed at which Mr Jackson wastravelling might have been dangerous to the public.Decision[18] The proposed appeal clearly does not raise any issue that has significancebeyond the circumstances of the case. Leave should therefore only be granted if weare satisfied a miscarriage of justice may occur if Mr Jackson is prevented frombringing a second appeal.Did the Judge follow the approach prescribed by the Supreme Court in Sena?[19] At the time Nation J heard the appeal in the High Court he was required toapproach the appeal in accordance with the principles this Court referred to in Gotty vR.23 These required the High Court to determine an appeal against conviction as if itwas a challenge to a jury verdict.24[20] On 24 May 2019, the Supreme Court issued its judgment in Sena v Police.25The Supreme Court rejected the approach taken by this Court in Gotty. It held that theapproach taken in Austin, Nichols & Co Inc v Stichting Lodestar applies to appealsagainst conviction following Judge alone trials.26 If an appellate court comes to adifferent view on the evidence, the trial Judge necessarily will have erred andthe appeal must be allowed.27 However, it remains for the applicant to show that anerror has been made in the Court below.28 In undertaking its own assessment ofthe correctness of the decision the appellate court should take into account anyadvantage the trial Judge may have had.29[21] Justice Nation obviously did not have the benefit of the judgment in Sena whenhe determined the appeal in the present case. It will be apparent, however, from oursummary of his judgment that the Judge conducted his own review of the evidence23 Gotty v R [2017] NZCA 528.24 At [14].25 Sena v Police, above n 4.26 At [32], applying Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR141.27 At [38].28 At [38].29 At [38].and the arguments on the principal issues Mr Jackson raised on the appeal. In doingso he also dealt with the issue relating to the lawfulness of any detention of Mr Jacksonat the service station in Kaikoura. The Judge then reached the following conclusionsin the penultimate paragraph of his decision:30[70] I accordingly hold:(a) The lack of a transcript of the evidence given at trial, inthe circumstances of this case, is not a sufficient ground for findingthat Mr Jackson's conviction was unsafe or unsatisfactory, or forholding that a miscarriage of justice had occurred, as would berequired to permit the Court to allow the appeal in terms of s 232Criminal Procedure Act.(b) The admissible evidence from the photographs taken by the speedcamera and at the service station, together with the evidence ofConstable Jackson identifying the rider of the motorcycle spoken toat the service station, wearing a helmet similar to that worn bythe motorcyclist photographed by the speed camera, wearingcalf-length white boots as was the motorcyclist photographed bythe speed camera, and carrying a backpack as was the motorcyclistphotographed by the speed camera, identified Mr Jackson asthe motorcyclist who had been travelling at 145 km/h in the 80 km/harea south of Kaikoura at 1.48pm.(c) There was additional admissible evidence identifying Mr Jackson asthe speeding motorcyclist rider through the evidence from boththe camera operator and Constable Jackson that the registrationnumber of the motorcycle photographed by the speed camera wasthe registration number of the motorcycle Mr Jackson was on a littlelater at the BP service station in Kaikoura.(d) The extent of the excess speed and the circumstances in which thatspeeding occurred provided an evidential basis on which the Judgecould reasonably conclude that Mr Jackson's speeding, in allthe circumstances, might have been dangerous to the public.[22] Overall, we consider the Judge determined the appeal in a manner consistentwith that prescribed by Sena. He certainly did not find there was any error inthe approach taken by Judge Saunders in the District Court. There is therefore no riskof any miscarriage of justice occurring based on the approach the Judge took todetermining the appeal.30 Jackson v Police, above n 2.Did the lack of a trial transcript prevent Mr Jackson from advancing his appeal inthe High Court?[23] The principal issues that Mr Jackson raised in the High Court related tothe adequacy of the identification evidence, the lawfulness of any detention thatoccurred whilst Mr Jackson was at the service station in Kaikoura andthe circumstances Judge Saunders had relied on to find that the speeding wasdangerous.[24] The identification issue could be determined without regard to the transcriptbecause there was no dispute that the speed camera took a photograph that, uponenlargement, showed a speeding motorcycle having the same registration number asMr Jackson's motorcycle. The photograph also depicted the rider of the motorcyclewearing similar apparel to that worn by Mr Jackson when he was found at the servicestation in Kaikoura just 15 minutes later. Taking those factors in combination, weconsider the identification of Mr Jackson as the rider of the motorcycle depicted inthe speed camera photograph to be proved beyond reasonable doubt.[25] The issue of the lawfulness of the detention was a secondary issue that raisedquestions of law rather than fact. Those questions could be determined withoutthe need for any transcript of the evidence given in the District Court.[26] Finally, both parties were able to identify the circumstances that were relevantto the issue of whether the speeding was dangerous. Like Nation J, we do not see howa trial transcript could have assisted Mr Jackson to advance that ground further inthe High Court.[27] We therefore do not consider there is any risk of a miscarriage of justiceoccurring if Mr Jackson is not permitted to bring a second appeal.Result[28] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent