Jackson v Police [2017] NZCA 374 (29 August 2017)

Last Updated: 8 September 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA76/2017 [2017] NZCA 374
BETWEEN	TIMOTHY JOHN JACKSON Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	22 June 2017
Court:	Clifford, Lang and Mander JJ
Counsel:	Applicant in person M H Cooke for Respondent
Judgment:	29 August 2017 at 4 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is granted.
____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

[1] The applicant, Timothy Jackson, was convicted following a Judge-alone trial in the District Court on a charge of driving a motor vehicle on a road at a speed which (having regard to the circumstances) might have been dangerous to the public.^[1] Mr Jackson was subsequently fined $800, ordered to pay Court costs of $130, and disqualified from driving for the minimum mandatory period of six months.^[2]
[2] Mr Jackson appealed his conviction, but not his sentence, to the High Court. That appeal was dismissed by Dunningham J.^[3] Mr Jackson now applies for leave to bring a second appeal against his conviction. Mr Jackson, a solicitor, represented himself before us, as he had done in both the District Court and the High Courts
[3] This Court considered the approach to applications for leave to bring a second appeal in McAllister v R.^[4] We return to that decision below. We note at the outset these comments from that decision:

[46] Before we turn to the present application we should explain that we have dealt with the merits in some detail because it was a combined hearing. However, we envisage that when reasons are required to be given when dealing with leave only on these applications, we will usually give our reasons “briefly and in general terms” as envisaged by r 5I of the Court of Appeal (Criminal) Rules 2001.

(Footnotes omitted.)

[4] Given the issues raised by Mr Jackson, and the history of this matter, we have found it necessary to record our judgment in more detailed and lengthy terms than is normal.

Mr Jackson’s conviction

[5] In the early afternoon of Sunday 20 December 2015 a police speed camera was operating on State Highway 1, approximately 20 km south of Kaikoura. At 1.46 pm that speed camera took a photo of a motorbike travelling north towards Kaikoura at 145 kph.
[6] Later that afternoon a Senior Constable, coincidentally also named Jackson, spoke to Mr Jackson in Kaikoura, at the BP Service Station on State Highway 1. Mr Jackson was subsequently charged with dangerous driving. His Judge-alone trial took place in the District Court on 7 July 2016. Mr Jackson acknowledged he had been riding his motorbike on that part of State Highway 1 at about the time the photograph was taken. He defended the dangerous driving charge on the basis that the admissible police evidence was not sufficient to establish beyond reasonable doubt that the person photographed riding the motorbike was him. He also argued that, if the Court was satisfied as to identity, nevertheless the circumstances did not establish that riding at that speed might be dangerous to the public.
[7] Judge DJL Saunders delivered his reserved decision on 23 August 2016, finding Mr Jackson guilty and convicting him.^[5]
[8] The Judge did so, on the issue of identity, on the basis he was satisfied:

• (a) That Mr Hoskins, the qualified speed camera operator, was present in the speed camera van when the motorbike and rider rode past at 1.46 pm on 20 December and were photographed.^[6]
• (b) That Mr Hoskins had read the registration number A6WZY on the computer screen, and had transmitted that information to a duty officer in Kaikoura.^[7]
• (c) That information was in turn conveyed to Senior Constable Jackson, who correctly recorded that number in his notebook.^[8]
• (d) That Senior Constable Jackson acted lawfully when he spoke to, and took photos of, Mr Jackson at the petrol station in Kaikoura with his motorbike registration number A6WZY. Mr Jackson had not been detained unlawfully so as to render the evidence of those photos inadmissible.^[9]

[9] The Judge acknowledged that the number, shown on the rear of the motorbike in the photograph included in the photo booklet prepared for the hearing, was not particularly clear.^[10] “A subsequent photo ... from the computer record”, as the Judge described it, was produced at trial.^[11] It was possible, the Judge said, without any digital enhancement to determine the registration number details “A6WZY” from that photo.^[12] The original photo also showed the rider of the bike had a pack on his back, a black helmet and a pair of white, calf length boots. The photos taken by Senior Constable Jackson showed Mr Jackson dressed similarly.
[10] The Judge was therefore sure the person (Mr Jackson) spoken to by Senior Constable Jackson at the petrol station was the rider photographed by the speed camera.^[13]

Mr Jackson’s first appeal

[11] Mr Jackson appealed his conviction to the High Court. On the issues of identity and admissibility he did so on the basis of the arguments he had made in the District Court: the admissible evidence was insufficient to establish that he was the person photographed riding a motorbike that afternoon. The District Court Judge had erred in his assessment of that evidence. A miscarriage of justice had occurred.
[12] The High Court appeal was set down for hearing on 8 November 2016. On 11 October the High Court advised Mr Jackson and the respondent that the District Court was unable to produce a record of the evidence given at the District Court trial. On 18 October Mr Jackson filed a memorandum setting out his submission that, given there was no record of the trial notes, his appeal should be disposed of by way of an order for a rehearing. If the High Court agreed, the matter could be dealt with on the papers. If, however, the High Court did not agree, Mr Jackson sought an adjournment of the 8 November hearing (as he was to be out of the country on that date) so that he could “appear and advance such appeal as he can mount with the available information”. That adjournment was granted.
[13] Thereafter, a degree of confusion arose. We need not go into the details, suffice to say that, by the time Dunningham J considered Mr Jackson’s appeal on the papers in early 2016, she was under the impression he had consented to the hearing in that way of both his application for a retrial and his substantive appeal. Mr Jackson maintains that was not what had happened. He had not agreed to the substantive appeal being dealt with on the papers. We are satisfied that was indeed the case. We consider this leave application on that basis. In her written submissions, Ms Cooke for the respondent had suggested it was reasonable for us to conclude, on the basis of Mr Jackson’s emails and his submissions, that he was in fact consenting to the substantive appeal being heard on the papers. During the hearing of Mr Jackson’s application Ms Cooke acknowledged, however, that it was appropriate we proceed on the basis we have just outlined.
[14] The Judge released her judgment on 26 January 2016, dismissing the appeal. Reflecting Mr Jackson’s written submissions, she did so on the following basis:

• (a) The enlarged image produced at the hearing should have been disclosed to Mr Jackson in advance. It was not. It should also have been formally produced as an exhibit. It had not been. Thus, if Mr Jackson’s conviction turned on that evidence, it could not be said that second image was before the Court and there would have been an error in the trial that affected its outcome.^[14]
• (b) Even without that image, however, the photograph produced in the booklet, combined with the evidence provided by the two prosecution witnesses (Mr Hoskins and Senior Constable Jackson), was sufficient to identify Mr Jackson as the person who had been photographed by the speed camera that afternoon:
  • (i) Mr Jackson’s motorbike and the backpack, black helmet and white calf length boots Mr Jackson was wearing when spoken to and photographed by Senior Constable Jackson, matched those shown in the photograph and which had been described by Mr Hoskins when he contacted Senior Constable Jackson.^[15]
  • (ii) More importantly, Judge Saunders had made a clear and reasonable finding that Mr Hoskins had been able to read the registration number from the photo on his computer screen, and had conveyed that registration number to Senior Constable Jackson who had in turn recorded those details in his notebook.^[16]

[15] In the circumstances, it could not be a mere coincidence that the number Mr Hoskins conveyed to Senior Constable Jackson exactly matched Mr Jackson’s registration number, and that the photographs taken by the Constable matched the image taken by the speed camera (which the Constable had not seen when he took his photos).^[17]
[16] The Judge addressed Mr Jackson’s challenge to the lawfulness of events at the service station — and hence the admissibility of the photographic evidence — in the following terms:

[25] The appellant's claim that he was unlawfully detained, and therefore the evidence of the photographs taken by Constable Jackson should be inadmissible, is not developed in submissions. The appellant simply asserts that “the officer detained the appellant — the appellant submits unlawfully — and obtained photographs of the appellant's vehicle to compare with the speed camera image”. It appears that this submission is an extension of the submission that there was not reliable evidence of the identity of the vehicle in the speed camera photograph, making the subsequent photographing of the bike an unlawful attempt to “subsequently bolster such identification evidence”.

[17] The Judge went on to conclude the Senior Constable was exercising the power to stop the driver of a vehicle provided by s 114 of the Land Transport Act 1998.^[18] There was nothing to suggest Mr Jackson was not free to go after the officer had lawfully questioned him, checked the identity of his vehicle (including photographing it), inspected it for defects and issued the ticket and the compliance notice.^[19]
[18] The Judge was also satisfied that the absence of a transcript did not mean there was a potential miscarriage of justice that could only be resolved by directing the matter to be reheard. Even if she accepted the substance of Mr Jackson’s crossexamination of Mr Hoskins, as set out in Mr Jackson’s submissions, that did not impeach the clear evidence given by Mr Hoskins that he saw the registration details on the computer image before him, and relayed them to Senior Constable Jackson:^[20]

The suggestion by [Mr Jackson] that Mr Hoskins “memorised the registration details from information that was later given to him” is completely contradicted by the fact Constable Jackson recorded the registration details given to him by Mr Hoskins and used those to locate the motorcycle. I therefore do not consider that the absence of a transcript means that this is a case where there was a potential miscarriage of justice that can only be resolved by directing the matter to be reheard.

This application

[19] This Court’s jurisdiction to consider second appeals against conviction is provided by s 237(1) of the Criminal Procedure Act 2011. The leave of this Court is required for such appeals. Section 237(2) provides:

... 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.
[20] Mr Jackson does not suggest his appeal involves a matter of general or public importance. Rather, Mr Jackson says a miscarriage has occurred here because:

• (a) His first appeal was heard and disposed on the papers without him having an opportunity to be heard and make oral submissions. He had not agreed to that.
• (b) The High Court erred in finding that a rehearing was not required, and in determining the appeal on the basis of the evidential conclusions — on identity and the nature of Senior Constable Jackson’s interactions with Mr Jackson — reached in the District Court.

[21] The respondent opposed the grant of leave. It argued that no miscarriage of justice had occurred. On the photographic evidence, Mr Jackson was clearly identified as the speeding motorbike rider. If there was a retrial, none of the factual matters Mr Jackson raised on appeal would affect the result of the trial. The outcome would be the same

Analysis

[22] In McAllister v R, a decision involving a second appeal against a conviction for contempt, this Court commented on s 264 of the Criminal Procedure Act (the equivalent in that context of s 237 here):^[21]

[32] The leave provisions dealing with second appeals in the Act reflect a change. Previously, a second appeal to this Court was confined to a question of law which ought to be considered by reason of its general or public importance. These criteria were strictly applied. As we have seen, under s 264 there is no requirement for a question of law. Further, the leave requirements also entail consideration of an alternative limb, namely, that a miscarriage of justice may have occurred, or may occur unless the appeal is heard. These changes mean that, in large measure, the test for an application for leave for a second appeal is in the same terms as that in s 13 of the Supreme Court Act 2003.

[Footnotes omitted.]

[23] What does a miscarriage of justice mean in these circumstances? That term is defined in s 232 of the Criminal Procedure Act, which deals with the determination of first appeals against conviction. As relevant, s 232 provides:

(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—

(a) in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or

(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c) in any case, a miscarriage of justice has occurred for any reason.

...

(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 was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.

[24] Section 240, which deals with the determination of second appeals against conviction, mandates the same approach:

240 Second appeal court to determine appeal

(1) A second appeal court must determine a second appeal under this subpart in accordance with this section.

(2) The second appeal court must allow the appeal if satisfied that the appeal should be allowed on any of the grounds described in section 232(2).

(3) The second appeal court must dismiss the appeal in any other case.

[25] In McAllister v R, this Court explained the relevance of the s 232(4) definition of miscarriage in the context of leave applications as follows:

[37] In terms of the miscarriage of justice limb, there are various ways of characterising the approach to be taken, for example, if there is an argument reasonably available that the court below is in error, that possibility would appear to come within s 264(2)(b), with the qualification we discuss in [38]. In the context of applying s 13 of the Supreme Court Act, the language used by that Court varies and a prescriptive approach would be unhelpful.

[38] The statutory indications are that it is not intended that every error will give rise to a miscarriage. For example, s 264(2)(b) requires the Court to be satisfied a miscarriage may have occurred, or may occur “unless the appeal is heard”. In any event, we agree with the submissions for the respondent that the definition of “miscarriage of justice” in s 232(4) is not apt to determine whether all applications for a second appeal are meritorious. The definition is stated to apply to s 232(2) and is likely to have more relevance in relation to an application for leave to appeal against conviction. By contrast, for example, the definition does not fit well in the context of an application for leave for a second appeal against a decision relating to name suppression.

(Footnote omitted.)

[26] Dunningham J’s decision to consider Mr Jackson’s first appeal on the papers involves an error. In saying that, we acknowledge Dunningham J had taken some care to satisfy herself that Mr Jackson had agreed to his substantive appeal, as well as his submission as to the need for a rehearing, to be dealt with on the papers. She was informed by a Court officer that that was indeed the case. There is no criticism of her in those circumstances. Nevertheless, Mr Jackson did not receive the hearing he wanted and was entitled to.
[27] The Judge’s error is a failure to comply with s 330 of the Criminal Procedure Act, which requires all appeals to the High Court under that Act to be “dealt with by way of a hearing involving oral submissions”. It is not at all clear that requirement can be waived, in the absence of the consent by the appellant. Mr Jackson did not so consent. The Judge’s decision can also be seen as involving a breach of Mr Jackson’s natural justice right to be heard. In R v Taito the Privy Council expressed the view that the right of appeal found in s 25(h) of the New Zealand Bill of Rights Act 1990, and in the then s 383 of the Crimes Act 1961 (the equivalent to s 229 of the Criminal Procedure Act) required a judicial decision on the merits of the appeal to be arrived at after a hearing in open court.^[22]
[28] The Crimes Act was amended to provide for certain appeals, and applications for leave to appeal, to this Court and the Supreme Court to be dealt with on the papers.^[23] No equivalent provision was made for appeals from the District Court’s summary jurisdiction to the High Court. The position remains the same under the Criminal Procedure Act. Whilst s 329 provides for appeals to this Court and the Supreme Court to be dealt with on the papers, no equivalent provision is made as regards appeals to a District Court or the High Court. Rather, s 330 requires a hearing with oral submissions.
[29] So the question becomes the significance of that error. In terms of the “miscarriage of justice” formulation of the test for leave, this is also an occasion where the s 232(4) definition may not be completely apt to determine the application, particularly as that definition is based on an error affecting the trial. The error in not providing Mr Jackson with an oral hearing on his first appeal could not, in any normal sense of the words, be regarded as one that “affects” his trial. When applied in the context of an application for leave to bring a second appeal, we think that the concept of a miscarriage of justice must extend to an error, irregularity or occurrence in or in relation to the appeal that has created a real risk that the outcome of the appeal was affected.
[30] In its written submissions, the respondent, as noted above, argued that if Mr Jackson’s case was to be reheard, the outcome would not be affected. That argument was made without express reference to s 330, or its implications. At the hearing of the leave application, Ms Cooke responsibly drew the Court’s and Mr Jackson’s attention to that issue.
[31] That argument does not address the point we have just made: namely, that at this point we are considering the significance of Mr Jackson not having been heard on his appeal. Moreover, even if that argument were to be made — say on the basis that Mr Jackson’s appeal to the High Court had little or no merit — it would still not be an answer to his substantive and procedural natural justice right (recognised by s 25(h) of the New Zealand Bill of Rights and reflected in s 330 of the Criminal Procedure Act), to be heard on his appeal. Given the fundamental nature of those rights, the argument that hearing the appeal would not make any difference is not persuasive. That is even more so when the Judge, without any error on her part, was under the impression that the putative appellant had agreed to the matter being dealt with on the papers.
[32] A second appeal in this Court will cure the error that arose when Mr Jackson’s first appeal was decided on the papers in the High Court. It will also be an opportunity for Mr Jackson to say that the Judge was wrong in deciding that, in effect, his conviction was safe and that a retrial was not called for.
[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 adequate evidential record from the District Court may compromise the appeal to such an extent that the substantive issues raised by Mr Jackson may not be able to be determined. Were that to be the case, then for that reason alone Mr Jackson’s conviction would need to be quashed and a retrial ordered. The respondent may consider, in these circumstances, that a proper and efficient disposition of this appeal would be for it to be considered by this Court on the papers, and on the basis of the respondent’s consent to that disposition being the quashing of Mr Jackson’s conviction and the ordering of a retrial. That is a matter for the respondent to determine in accordance with its prosecutorial obligations.

Result

[34] Mr Jackson’s application for leave to bring a second appeal against his conviction is granted.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] New Zealand Police v Jackson [2016] NZDC 16002 [Jackson (DC)].

^[2] New Zealand Police v Jackson [2016] NZDC 17112 at [3].

^[3] Jackson v New Zealand Police [2017] NZHC 37 [Jackson (HC)].

^[4] McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.

^[5] Jackson (DC), above n 1.

^[6] At [9].

^[7] At [11].

^[8] At [13].

^[9] At [21].

^[10] At [10].

^[11] At [10].

^[12] At [10].

^[13] The Judge also found, contrary to Mr Jackson’s argument, that his speed was one which, in the circumstances, might have been dangerous to members of the public. Mr Jackson also appealed that finding to the High Court. That matter is not, however, material to the disposition of this application.

^[14] Jackson (HC), above n 3, at [21].

^[15] At [22].

^[16] At [23].

^[17] At [23].

^[18] At [26].

^[19] At [26].

^[20] At [24].

^[21] McAllister v R, above n 4.

^[22] R v Taito [2002] UKPC 15, [2003] 3 NZLR 577 at [12].

^[23] See Crimes Act 1961, ss 392A and 392B.