THE QUEEN v ZOLTON SHARDY [1999] NZCA 21 (8 March 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 335/98

THE QUEEN

V

ZOLTON SHARDY

Hearing:	8 March 1999
Coram:	Eichelbaum CJ Robertson J Goddard J
Appearances:	Appellant in person A K Mobberley for Crown
Judgment:	8 March 1999

judgment of the court delivered by EICHELBAUM CJ

[1]As a result of an incident in Bay Road, Wellington on 27 August 1997 Dr Shardy, the appellant, was charged with driving a motor vehicle on a road in a manner which having regard to all the circumstances of the case might have been dangerous to the public, contrary to Section 57(c) of the Transport Act 1962. At the hearing two independent witnesses gave evidence for the prosecution. Their accounts which were broadly similar were to the following effect.The appellant, who had been angle parked facing the footpath, backed out of the parking space at some speed.The car shot across the road, colliding with a car proceeding along Bay Road, and pushing it into a vehicle parked on the other side of the road.Then the appellant's car drove back rapidly in the direction from which it had come, where it struck another two cars pushing them on to the pavement.One of these came close to hitting a child.The appellant's account, as given at the hearing, was that he had reversed carefully from the angle parked position when a stationwagon going south on Bay Road ran into him.The impact revived a problem he had had with his eyes, causing pain and temporary loss of sight and he reacted by trying to return the car to its former position.

[2] The District Court Judge found the charge proved, preferring the evidence of the two independent witnesses, for the reasons he gave.He disqualified the appellant from driving for 10 months but otherwise did not impose any penalty. When Dr Shardy appealed to the High Court the Judge stated that the issue was one of fact.He said there was no basis on which one could criticise the Judge's approach, and that it was entirely for the Judge whether to accept the evidence of the other witnesses in preference to the appellant's, the Judge of course having had the advantage of seeing and hearing all the witnesses.As the District Court Judge had not erred in any way the appeal was dismissed.

[3]Next the appellant applied to the High Court for leave to appeal to this Court.Section 144(2) of the Summary Proceedings Act 1957 provides that the High Court may grant leave to appeal to this Court if in the opinion of the High Court the question of law involved in the appeal is one which by reason of its general and public importance or for any other reason ought to be submitted to this Court for decision.The Judge, noting that all the points raised by the appellant were either factual ones, or involved reference to evidence which was before the District Court or could have been brought before the Court at the time of the original hearing, concluded the case did not come within the statutory provisions, and accordingly denied leave to appeal.Thereupon the appellant applied to this Court for special leave under Section 144(3).As this Court pointed out in R v Slater (1996) 14 CRNZ 189, 192 this Court can grant special leave only if a) there is a question of law; b) the question is one which by reason of its general and public importance or for any other reason, ought to be submitted to this Court; and c) the Court is of opinion that the question ought to be so submitted.

[4]When the hearing of this appeal commenced this morning, the appellant drew our attention to a judgment given in the District Court on 22 October 1998 on proceedings taken by the Director of Land Transport Safety Authority.The Director had taken steps to revoke the appellant's drivers licence, which were completed after the District Court hearing, and there was a revocation for one year commencing 23 May 1998.Dr Shardy appealed against that decision and in a full and detailed judgment the District Court Judge rejected his appeal.

[5] The appellant's first submission today was that either immediately or at a later date this Court should hear not only his present application for leave but at the same time an appeal against the judgment of the District Court dismissing the appeal against the Director's decision of revocation.Dr Shardy had obtained a copy of the transcript of the District Court decision only this morning although of course he was present in court at the time judgment was delivered orally.We adjourned for a short while to give Dr Shardy the opportunity of reading the judgment of the District Court and on our return we think Dr Shardy probably accepted our view that the judgment of the District Court in the Land Transport Safety proceedings really had no direct bearing on the matters that he would like to argue on the application for leave.In any event as there is no right of appeal against the District Court judgment in the Land Transport Safety proceedings to this Court there was no point in adjourning the proceedings for a joint hearing as Dr Shardy would have preferred.

[6] Returningthen to the matter before the Court today, Dr Shardy accepted as of course he must that under Section 144(3), first and foremost, an appellant has to identify a point of law.Dr Shardy submitted first that in criminal cases every issue is sufficiently important to be regarded as a point of law. Secondly he submitted that if there was no evidence that he was guilty then to find him guilty in that situation was an error of law.In respect of the first point we are unable to accept any proposition as wide as that Dr Shardy advanced.Of course every relevant issue in a criminal case is properly described as of at least some significance, but that is not the same as saying it is a point of law.Undoubtedly the matters that were before the District Court Judge were mainly if not entirely questions of fact.The aspects in which Dr Shardy wishes to challenge his findings relate entirely to factual issues.Dr Shardy's second point as we understand it was that the photos produced as exhibits in the District Court, by reason of the damage which they showed disproved the account of the incident given by the two independent witnesses.However, the photos were before the District Court.They had shown some damage to Dr Shardy's vehicle and to the extent that the question is whether the damage was consistent or otherwise with the prosecution evidence, that was entirely a question of fact for the determination of the District Court Judge.

[7] A third matter which Dr Shardy mentioned was that after the accident a leaflet relating to the incident was distributed by a person who claimed to be a detective sergeant but in fact was not.We are unable to see any issue that could properly be described as a point of law in this aspect at all.So the short answer to all that Dr Shardy has put before us is that what was involved in this case were solely issues of fact, and there is no basis for raising any question of law which would give this Court jurisdiction to deal with this matter under Section 144(3).Fairly recognising the difficulties, at the end of his submissions Dr Shardy said that he would withdraw the application.We think that that is a proper attitude and for the reasons we have given the application for leave is dismissed.

[8]On behalf of the Crown Ms Mobberley said that the Crown did not seek costs, so there will be no order regarding costs.

Solicitors

Crown Law Office, Wellington