JACKSON v NEW ZEALAND POLICE [2018] NZCA 194

JACKSON v NEW ZEALAND POLICE [2018] NZCA 194 [14 June 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA76/2017[2018] NZCA 194BETWEEN TIMOTHY JOHN JACKSONAppellantAND NEW ZEALAND POLICERespondentCourt: Williams, Venning and Mander JJCounsel: Appellant in personM H Cooke for RespondentJudgment:(On the papers)14 June 2018 at 4.00 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Venning J)[1] On 20 December 2015 a speed camera recorded Mr Jackson travelling at145 km/h in an 80 km/h area south of Kaikoura. The officer operating the speedcamera conveyed information regarding the offending, including the registrationnumber of Mr Jackson's motor bike, to a duty officer in Kaikoura. Another policeofficer then located and spoke to Mr Jackson while he was stopped at a petrol stationin Kaikoura. The police officer took photographs of Mr Jackson's motor bike, hisclothing and gear. Mr Jackson was charged with driving a motor vehicle on a road ata speed which (having regard to the circumstances) might have been dangerous to thepublic.[2] The issue before the District Court was whether there was sufficient admissibleevidence of identity and if there was, whether the speed was dangerous in all thecircumstances. After a defended hearing, Judge DJL Saunders found the chargeproved.1 He subsequently fined Mr Jackson $800, ordered him to pay Court costs of$130 and disqualified him from driving for the minimum mandatory period of sixmonths.2[3] Mr Jackson appealed his conviction to the High Court. Due to a technicalfailure there was no record of the District Court hearing available for transcription.The District Court Judge provided his own notes of the hearing. In addition to theJudge's notes, the High Court had Judge Saunders' judgment and sentencing notes.The photographs and other exhibits produced in the District Court were also available.[4] The procedural issues did not end with the lack of a transcript. As this Courtrecorded in the leave decision, a degree of confusion arose as to how the appeal wasto be dealt with.3 The High Court was mistakenly under the impression Mr Jacksonhad consented to his appeal being dealt with on the papers. Dunningham J delivereda fully reasoned decision dismissing the appeal on the papers.4[5] Mr Jackson then applied for leave to bring a second appeal against conviction.Mr Jackson argued that a miscarriage of justice had occurred because:(a) he had not agreed to the appeal being heard on the papers; and(b) the Court erred in finding that a rehearing was not required.[6] In a judgment delivered on 29 August 2017 this Court granted Mr Jackson'sapplication for leave to bring a second appeal.5 The Court considered that s 330 of the1 Police v Jackson [2016] NZDC 16002.2 Police v Jackson [2016] NZDC 17112.3 Jackson v Police [2017] NZCA 374.4 Jackson v Police [2017] NZHC 37.5 Jackson v Police, above n 3.Criminal Procedure Act 2011 (the Act) mandated that the appeal to the High Court hadto be an oral hearing. That was a substantive and procedural natural justice rightrecognised by s 25(h) of the New Zealand Bill of Rights Act 1990.[7] At the conclusion of the judgment this Court said this:[33] We invite the respondent, in particular, to consider one further point.It seems to us that it is at least a possibility that the absence of an adequateevidential record from the District Court may compromise the appeal to suchan extent that the substantive issues raised by Mr Jackson may not be able tobe determined. Were that to be the case, then for that reason aloneMr Jackson's conviction would need to be quashed and a retrial ordered.The respondent may consider, in these circumstances, that a proper andefficient disposition of this appeal would be for it to be considered by thisCourt on the papers, and on the basis of the respondent's consent to thatdisposition being the quashing of Mr Jackson's conviction and the ordering ofa retrial. That is a matter for the respondent to determine in accordance withits prosecutorial obligations.[8] The Police declined to take up that invitation. In a subsequent minute issuedon 14 March 2018 Clifford J confirmed a direction that this appeal be heard on thepapers.Police position[9] The Police submit the correct procedure is for the Court to declare theHigh Court decision a nullity and to direct the matter be sent back to the High Courtfor an oral hearing of the first appeal in that Court. If that submission is not acceptedand the appeal is allowed the Police seek a retrial in the District Court.Appellant's position[10] Mr Jackson submits that this Court should allow the appeal and direct anacquittal without a retrial.This appeal[11] This appeal is to be heard on the papers, as directed by Clifford J. Such aprocedure is provided for by s 329 of the Act.[12] There was no jurisdiction for the High Court to determine the first appeal onthe papers. The wording of s 330 of the Act is mandatory as to the form of hearing ofthe first appeal:330 Hearings in District Court or High CourtAn appeal under this Part to the District Court or the High Court must be dealtwith by way of a hearing involving oral submissions.[13] By determining the appeal on the papers the High Court made a proceduralerror. Some procedural errors may be saved by s 379 of the Act, but not if theprocedural error has led to a miscarriage of justice or if it otherwise amounts to anullity.6 The effect of procedural error in the context of a criminal prosecution wasconsidered by this Court in Abraham v District Court at Auckland.7 This Court said,referring to the predecessor of s 379, s 204 of the Summary Proceedings Act 1957:[48] The foregoing authorities indicate that whether a particular proceduralfailure constitutes a nullity in the context of s 204 is a matter of degreerequiring an overall assessment of the particular failure against the relevantstatutory background. It is critical to understand the place of the particularrequirement in the scheme of the legislation. Further, as Cooke J noted inPolice v Thomas, the concept of nullity will frequently overlap with theconcept of miscarriage of justice in s 204.[49] The application of the nullity concept will be straightforward in somesituations. For example, if a judicial officer deals with a matter that he or shehas no jurisdiction to deal with, it seems obvious that the resulting decisionshould be characterised as a "nullity" which cannot be rectified by resort tos 204. The effect of s 204 cannot be to confer jurisdiction where it does notexist. (A similar issue arises in relation to the application of the proviso tos 385(1) of the Crimes Act 1961 to trials that are nullities in terms ofs 385(1)(d) (see R v Blows (Court of Appeal, CA 103/95, 31 August 1995)at pp 5 – 7 and R v O (No 2) [1999] 1 NZLR 326 (CA) at p 329).) Similarly,where some process, the effect of which is to confer jurisdiction, has not beenfollowed (for example, a statutorily required consent to prosecute has not beenobtained), it is easy enough to characterise what follows as a nullity.(footnotes omitted.)[14] In the present case the High Court had no jurisdiction to determine the appealon the papers. The first appeal hearing in that Court is properly categorised as a nullity.6 Hall v Ministry of Transport [1991] 2 NZLR 53 (CA) at 58.7 Abraham v District Court at Auckland [2007] NZCA 598, [2008] 2 NZLR 352 at [48]–[49].[15] Section 240 of the Act states:240 Second appeal court to determine appeal(1) A second appeal court must determine a second appeal under thissubpart in accordance with this section.(2) The second appeal court must allow the appeal if satisfied that theappeal should be allowed on any of the grounds described in section232(2).(3) The second appeal court must dismiss the appeal in any other case.[16] Section 232 of the Act states:232 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart inaccordance with this section.(2) The first appeal court must allow a first appeal under this subpart ifsatisfied that,—(a) in the case of a jury trial, having regard to the evidence, thejury's verdict was unreasonable; or(b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that amiscarriage of justice has occurred; or(c) in any case, a miscarriage of justice has occurred for anyreason.(3) The first appeal court must dismiss a first appeal under this subpart inany other case.(4) In subsection (2), miscarriage of justice means any error, irregularity,or occurrence in or in relation to or affecting the trial that—(a) has created a real risk that the outcome of the trial wasaffected; or(b) has resulted in an unfair trial or a trial that was a nullity.[17] None of the grounds in s 232(2) apply in the present case. On the materialbefore the Court we are unable to say that the District Court Judge erred in hisassessment of the evidence to such an extent that a miscarriage of justice occurred, norwas there a miscarriage of justice as defined in s 232(4) in relation to the trial inthe District Court. The difficulty in the present case is that the first appeal in theHigh Court was a nullity because Mr Jackson did not have the opportunity to presentoral submissions. That however does not impeach the process in the District Court.[18] As none of the grounds in s 232(2) apply, the appeal must be dismissed.This Court cannot direct a rehearing. We note that in the case of Butterfield v R wherea first appeal to the High Court had been a nullity, the High Court exercised its inherentjurisdiction to grant a rehearing.8[19] The error in the present case could be addressed by Mr Jackson applying for arehearing of his first appeal in the High Court. We would anticipate that suchapplication would not be opposed given the approach taken by counsel for the Policeon this appeal.Result[20] For the above reasons the appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent8 Butterfield v R [1997] 3 NZLR 760 (HC).