Jackson v Police [2018] NZCA 194 (14 June 2018)

Last Updated: 25 June 2018

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA76/2017 [2018] NZCA 194

	BETWEEN	TIMOTHY JOHN JACKSON Appellant
	AND	NEW ZEALAND POLICE Respondent

Court:	Williams, Venning and Mander JJ
Counsel:	Appellant in person M H Cooke for Respondent
Judgment: (On the papers)	14 June 2018 at 4.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

[1] On 20 December 2015 a speed camera recorded Mr Jackson travelling at 145 km/h in an 80 km/h area south of Kaikoura. The officer operating the speed camera conveyed information regarding the offending, including the registration number of Mr Jackson’s motor bike, to a duty officer in Kaikoura. Another police officer then located and spoke to Mr Jackson while he was stopped at a petrol station in Kaikoura. The police officer took photographs of Mr Jackson’s motor bike, his clothing and gear. Mr Jackson was charged with driving a motor vehicle on a road at a speed which (having regard to the circumstances) might have been dangerous to the public.
[2] The issue before the District Court was whether there was sufficient admissible evidence of identity and if there was, whether the speed was dangerous in all the circumstances. After a defended hearing, Judge DJL Saunders found the charge proved.^[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 six months.^[2]
[3] Mr Jackson appealed his conviction to the High Court. Due to a technical failure 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 the Judge’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 Court recorded in the leave decision, a degree of confusion arose as to how the appeal was to be dealt with.^[3] The High Court was mistakenly under the impression Mr Jackson had consented to his appeal being dealt with on the papers. Dunningham J delivered a 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’s application for leave to bring a second appeal.^[5] The Court considered that s 330 of the Criminal Procedure Act 2011 (the Act) mandated that the appeal to the High Court had to be an oral hearing. That was a substantive and procedural natural justice right recognised 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 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.

[8] The Police declined to take up that invitation. In a subsequent minute issued on 14 March 2018 Clifford J confirmed a direction that this appeal be heard on the papers.

Police position

[9] The Police submit the correct procedure is for the Court to declare the High Court decision a nullity and to direct the matter be sent back to the High Court for an oral hearing of the first appeal in that Court. If that submission is not accepted and 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 an acquittal without a retrial.

This appeal

[11] This appeal is to be heard on the papers, as directed by Clifford J. Such a procedure is provided for by s 329 of the Act.
[12] There was no jurisdiction for the High Court to determine the first appeal on the papers. The wording of s 330 of the Act is mandatory as to the form of hearing of the first appeal:

330 Hearings in District Court or High Court

An appeal under this Part to the District Court or the High Court must be dealt with by way of a hearing involving oral submissions.

[13] By determining the appeal on the papers the High Court made a procedural error. Some procedural errors may be saved by s 379 of the Act, but not if the procedural error has led to a miscarriage of justice or if it otherwise amounts to a nullity.^[6] The effect of procedural error in the context of a criminal prosecution was considered 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 procedural failure constitutes a nullity in the context of s 204 is a matter of degree requiring an overall assessment of the particular failure against the relevant statutory background. It is critical to understand the place of the particular requirement in the scheme of the legislation. Further, as Cooke J noted in Police v Thomas, the concept of nullity will frequently overlap with the concept of miscarriage of justice in s 204.

[49] The application of the nullity concept will be straightforward in some situations. For example, if a judicial officer deals with a matter that he or she has no jurisdiction to deal with, it seems obvious that the resulting decision should be characterised as a “nullity” which cannot be rectified by resort to s 204. The effect of s 204 cannot be to confer jurisdiction where it does not exist. (A similar issue arises in relation to the application of the proviso to s 385(1) of the Crimes Act 1961 to trials that are nullities in terms of s 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 been followed (for example, a statutorily required consent to prosecute has not been obtained), 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 appeal on the papers. The first appeal hearing in that Court is properly categorised as a nullity.
[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 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.

[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 in accordance with this section.

(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.

(3) The first appeal court must dismiss a first appeal under this subpart in any 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 was affected; 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 material before the Court we are unable to say that the District Court Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred, nor was there a miscarriage of justice as defined in s 232(4) in relation to the trial in the District Court. The difficulty in the present case is that the first appeal in the High Court was a nullity because Mr Jackson did not have the opportunity to present oral 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 where a first appeal to the High Court had been a nullity, the High Court exercised its inherent jurisdiction to grant a rehearing.^[8]
[19] The error in the present case could be addressed by Mr Jackson applying for a rehearing of his first appeal in the High Court. We would anticipate that such application would not be opposed given the approach taken by counsel for the Police on this appeal.

Result

[20] For the above reasons the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] 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.

^[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].

^[8] Butterfield v R [1997] 3 NZLR 760 (HC).