Terry v Police [2014] NZHC 660 (4 April 2014)

Last Updated: 16 May 2014

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI 2014-418-004 [2014] NZHC 660

ROBERT FRANK TERRY Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	3 April 2014 (Heard at Christchurch)
Appearances:	Appellant in Person K Basire for Respondent
Judgment:	4 April 2014

_{RESERVED JUDGMENT OF MANDER J}

[1] Mr Terry seeks leave to appeal the dismissal of his appeal from a decision of Judge S J O’Driscoll declining his application for travel costs upon the dismissal for want of prosecution of a charge under the Telecommunications Act 2001.

[2] The application for leave purports to be made pursuant to the Criminal Procedure Act 2011. As the criminal proceeding commenced prior to 1 July 2013, the applicable procedure is that provided for under the Summary Proceedings Act

1957. I intend to treat Mr Terry’s application for leave as being pursuant to s 144 of

_{the Summary Proceedings Act 1957.}

TERRY v NEW ZEALAND POLICE [2014] NZHC 660 [4 April 2014]

[3] That provision provides that a party with the leave of this Court may appeal to the Court of Appeal against any determination of the High Court on a question of law arising in any general appeal. This Court may grant leave if the question of law involved in the appeal is one which, by reason of its general or public importance or any other reason, ought to be submitted to the Court of Appeal for decision.

[4] Mr Terry has identified the basis for his leave application as resting on three grounds. Firstly, that [18] and [19] of my judgment of 20 February 2014 is factually incorrect. [18] and [19] provides as follows:

[18] It is apparent that the only reason that the charge was dismissed was because the complainant, through no fault of her own, could not be present to give evidence on the charge. Understandably, she wished to be with her husband or partner in Christchurch at the time of his surgery. No doubt inconvenience was caused to Mr Terry as a result of him having to attend Court, however his appearance was not a redundant one. The Police intended and indeed did apply for an adjournment which Mr Terry, after making submissions to the Judge which appear to have been accepted, successfully opposed.

[19] Notwithstanding the submissions of Mr Terry on the hearing of this appeal, I agree with Judge O’Driscoll that this was not an appropriate case for an award of travel costs particularly having regard to the circumstances giving rise to the information being dismissed. While acknowledging the wide discretion available to a Court, the reasons for the delay up until the January hearing date were systemic and the reason for the defended hearing not being able to proceed was beyond the control of the prosecution. There was no suggestion the Police acted other than in good faith. Insofar as the matters set out in s 5(2) provide applicable guidance there is nothing in the listed factors that are present in this case which would otherwise favour such an award.

[5] Leaving to one side the question of an evidential foundation for the witness’s unavailability, Mr Terry has been unable to isolate any factual error, in my understanding, as to how the matter proceeded before Judge O’Driscoll. The reason provided to the Court for the unavailability of the prosecution witness was because her husband or partner was having surgery and she wished to be with him at that time and was unable to attend Court for the fixture. That was the basis upon which Judge O’Driscoll considered the matter as I discerned from the Court record. No challenge was made to the accuracy of the information put before the Court, either in the District Court or before me on appeal to this Court.

[6] Secondly, Mr Terry submits that the Police produced no evidence, and in particular no medical evidence, for the non-appearance of their witness. That is correct. The Police’s application for the adjournment was as advised from the bar, because of the non-availability of its witness. The Judge proceeded on the basis of that information, declined the adjournment and dismissed the charge. Again, as already noted, Mr Terry did not challenge the bona fides of the explanation for the witness’s non-availability either at the time of the dismissal of the charge when he requested his travel costs in the District Court, nor in argument on appeal to this Court. As matters presently stand there is nothing to indicate that the Police advice to the Judge was other than accurate. There is no requirement on the prosecution to put forward evidence regarding the reason for the non-availability of the witness. It may be that a Judge, in order to entertain an application for an adjournment, will wish to hear evidence in respect of the grounds for the application, but Judge O’Driscoll was content to proceed on the information provided. Similarly, he dealt with the application for travel expenses by Mr Terry on the same basis without demur from Mr Terry at the time.

[7] Thirdly, Mr Terry has submitted that a High Court Judge hearing an appeal “should not be rewriting evidence from the District Court, which never existed”. As will be apparent from the observations already made, this Court proceeded in hearing the appeal on the information as it was provided to the District Court Judge. In prosecuting his appeal, Mr Terry did not question the validity of the information relating to the non-availability of the witness. There was no reason for this Court to proceed on any other different basis in assessing the merits of Mr Terry’s appeal.

[8] It follows that Mr Terry’s complaint is a belated challenge to the information communicated by the Police to the District Court Judge. He has provided no information upon which to believe the Police misinformed the Court as to the reasons for its witness’s unavailability. In the absence of him raising any issue on the hearing of the appeal regarding the explanation of the witness’s unavailability no question of law arises out of my determination of his appeal, let alone one which by reason of its general public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[9] Leave to appeal is declined.

Solicitors:

Raymond Donnelly & Co, Christchurch

Copy to:

R Terry, Reefton