Terry v R [2015] NZCA 108 (31 March 2015)

Last Updated: 16 April 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA559/2014 [2015] NZCA 108
BETWEEN	ROBERT FRANK TERRY Applicant
AND	THE QUEEN Respondent

Hearing:	5 March 2015
Court:	French, Asher and Williams JJ
Counsel:	Applicant in person A Markham for Respondent
Judgment:	31 March 2015 at 3.00 pm

JUDGMENT OF THE COURT

Application for leave to appeal dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

Introduction

[1] Mr Terry seeks leave to bring a second appeal against his conviction in the Greymouth District Court on 5 June 2014 for speeding.^[1] Mr Terry appealed his conviction to the High Court and in a reserved judgment MacKenzie J dismissed the appeal.^[2]

District Court

[2] Mr Terry had indicated to the District Court prior to the hearing in that Court that he would defend the charge but he did not appear in Court when the matter was called. At the hearing the police gave evidence that at 12.28 pm on Wednesday 26 February 2014 a vehicle registered in Mr Terry’s name was checked by an approved speed camera travelling at 64 km/h along Buller Road in Reefton. Buller Road is a 50 km/h zone. On receipt of the prosecution evidence and in the absence of any explanation from Mr Terry, Judge Murfitt found him guilty of the offence and fined him $80 together with court costs of $130.^[3]

High Court

[3] Mr Terry’s argument in the High Court was that the prosecution had failed to prove he was the driver of the vehicle and he was entitled to be presumed innocent until proven guilty. He also challenged the admission into evidence of an enlargement of the photograph taken of his vehicle by the speed camera. The enlargement enabled the car’s registration plate to be read. There is no question that the vehicle was registered to Mr Terry at the relevant time.
[4] Justice MacKenzie pointed out that driving a vehicle on a road in excess of the designated speed limit for that road is an offence by virtue of r 5.1 of the Land Transport (Road User) Rule 2004 and s 40 of the Land Transport Act 1998 (the Act).^[4] Justice MacKenzie then applied ss 133(1)(b) and (2) of the Act.^[5] In combination, these two provisions impose a rebuttable presumption that the registered owner of the vehicle was the driver at the time of the alleged offence and casts the onus on the defendant to provide proof to the contrary.
[5] Mr Terry, who was the registered owner, did not appear in the District Court to defend the proceeding and so adduced no evidence as required by the provisions to which we have made reference. Justice MacKenzie found that Judge Murfitt had properly convicted Mr Terry, all elements of the offence having been proved accordingly.^[6]
[6] Mr Terry’s second argument in the High Court was that an enlargement of the speed camera photograph was not admissible in evidence against him. He offered, apparently, a decision of Justices of the Peace in support of that proposition. Justice MacKenzie, understandably, rejected the principle propounded as untenable.^[7]

Application for leave

[7] Section 237 of the Criminal Procedure Act 2011 sets the standard for leave for a second appeal against the determination of a convicted person’s first appeal. Section 237(2) provides:

The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless 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 the appeal is heard.

[8] The appropriate approach to leave applications was discussed in McAllister v R.^[8] It is unnecessary to do more than observe that this Court took the view in that case that the test for leave under the Criminal Procedure Act is substantially similar to that applicable in the Supreme Court under s 13 of the Supreme Court Act 2003.^[9]
[9] In his application for leave to appeal, Mr Terry raised a single ground of appeal. Mr Terry now argues that he was:

[d]enied basic rights to attend own hearing. Not informed by the N.Z Police of the hearing date at Greymouth.

[10] Before this Court Mr Terry submitted he received no notice of the hearing at which he was found guilty. He said the notice was sent to an address in Cheviot and he did not reside there. This was not a ground in his original notice of appeal to the High Court. Nor was it a ground raised in argument before MacKenzie J.
[11] Applicants for leave to bring a second appeal to this Court are ordinarily restricted to the grounds of appeal advanced in the High Court.^[10] Despite that general rule, the Court hearing a leave application may be moved to allow an intending appellant to advance new grounds, if it is clear that strict adherence to the rule may produce a miscarriage of justice.^[11] There is no reason to apprehend such a miscarriage in this case. That is because Mr Terry had no submission to make to us in relation to the arguments or evidence he would have advanced had he attended the District Court hearing. We are left to infer that he had no relevant arguments to make even if he had appeared before Judge Murfitt on the appointed day and no evidence to rebut the s 133 presumption.
[12] There is no basis, therefore, upon which it can be said that the issues raised by Mr Terry in his application involve any matters of general or public importance or raise any likelihood that a miscarriage of justice may have occurred or may occur unless the appeal is heard. The determination of MacKenzie J was clearly correct.

Outcome

[13] The application is dismissed accordingly.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Police v Terry DC Greymouth CRI-2014-018-229, 5 June 2014.

^[2] Terry v Police [2014] NZHC 2287.

^[3] Police v Terry, above n 1.

^[4] Terry v Police, above n 2, at [4].

^[5] At [6].

^[6] At [6].

^[7] At [7].

^[8] McAllister v R [2014] NZCA 175; [2014] 2 NZLR 764.

^[9] McAllister v R, above n 8, at [32]–[39].

^[10] Pavitt v R [2005] NZSC 24 at [4].

^[11] Ibid.