B v Police HC Auckland CRI 2006-404-164

[2006] NZHC 1142

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-000164

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         28 September 2006

Counsel:        Appellant In Person - No Appearance

M E Mann for Respondent

Judgment:      28 September 2006

ORAL JUDGMENT OF PANCKHURST J

[1]      This is an appeal against conviction for driving in excess of the speed limit, being in this instance 80 kilometres per hour.  The offence was committed on 24 July

2005 at Wenderholm, north of Auckland on State Highway 1.   An infringement notice was issued to the appellant at the relevant time.  He exercised his right to have a defended hearing of the case which occurred before Justices of the North Shore Court on 2 May 2006.   The appellant represented himself.   After that hearing the Justices found the infringement proved and ordered payment of an infringement fee of $120 together with court costs.

[2]      The appellant filed a notice of appeal the same day.  His appeal was set down for hearing this morning.  Notice of the hearing date was provided by the court on 4

July last to the appellant at his home address in Milford.  He has not appeared today,

B V NZ POLICE HC AK CRI 2006-404-000164  28 September 2006

but it appears to me that due service of the notice of hearing date has been given. Accordingly I have heard brief submissions from Mr Mann and I propose to deal with the case.

[3]      The  alleged  offence  was  of  driving  at  97  kilometres  per  hour  on  State Highway  1  while  driving  up  Johnsons  Hill,  just  a  little  to  the  north  of  the Winderholm regional park.  This was at about 10.20 pm in the evening.  The officer concerned, Constable Black, was a qualified operator of speed detection equipment. His   evidence   included   reference   to   the   process   that   he   followed   at   the commencement of his shift, that is he had calibrated the radar unit for the particular car and established that all was in order.  Moreover, in the course of the hearing, he produced a number of exhibits, including a certificate of proficiency showing that he had the requisite training, a certificate of accuracy for the radar unit, the radar unit logbook, a certificate of accuracy for the vehicle speedo, and formal evidence to establish that the speed limit in the relevant area was 80 kilometres per hour.

[4]      He  described  obtaining  the  reading  and  then  pursuing  and  stopping  the appellant who he recorded as responding to the effect that he thought the limit was

100 kilometres.  He took a further note along the lines that the appellant had said it was a long time since he had been that way, although his mate (a passenger in the car) had warned him it was an 80 kilometre per hour area.  Hence, on the face of it, this was a very orthodox case of its kind, where the officer predictably gave evidence of a nature required to establish the charge.

[5]      What, then, did the appellant offer by way of defence?  That is best captured by looking at a portion of his evidence-in-chief as follows:

I’ve been asking the Policeman to show me where his patrol car was on a map and I’ve been doing this for several months now and the last time was on the 28th of the 4th and here is the fax and I’ve even included a map to help matters out because I need the information, what he said in his statement is that he was at the top of Johnsons Hill in a rest area in that location, there is however a rest area part the way up the hill on the right hand side which it would’ve  been  possible  for  him  to  be  sitting  there  facing  a  southerly direction with his radar on stationary mode and that would’ve been possible, but  I  have  a  couple  of  concerns.    There  would’ve  been  a  short  chase probably over a kilometre, if you look at my map you’ll see where I’ve indicated the rest area where the Fowler Access Rd is and the approximate position of both vehicles when the chase ended, I’ve always maintained that

I stopped straight away because I did, and I’m concerned because I don’t feel that I’ve had proper access to all the information, I require the exact location shown to me so that I can conduct my defence of this matter in an adequate fashion.

This  captures the  flavour  of  the  appellant’s  case.    He  maintained  that  because incomplete,  or  insufficient,  disclosure  had  been  made,  the  charge  should  be dismissed on that basis alone, without reference to the merits.

[6]      It is apparent from the notes of evidence that considerable disclosure had been made.   When the officer produced several exhibits the appellant was asked whether he had seen them and he responded that yes, he had been provided with copies.  Likewise, from the appellant’s own account, it is evident that he had been advised by the officer that he (the officer), was parked in a rest area on Johnsons Hill at the time the reading was obtained.  However, the appellant still considered there was a difficulty.  Such rest area was described by the officer as being “on the top of Johnsons Hill facing in a southerly direction”, while the appellant was proceeding in a northerly direction up the hill and therefore on the opposite side of the road to the rest area.

[7]      The appellant in his evidence complained that this rest area is not at the top of the hill but, as he described it, “part way up the hill”.  However, cross-examination of the appellant in the District Court elicited the fact that there is only one rest area on the hill, being the one to which the police constable referred.

[8]      I  do  not  have  direct  evidence  of  the  material  which  was  disclosed  to Mr B   in advance of the hearing.  Rather, I am reliant upon inference, that is I need to work from the material in the notes of evidence in order to ascertain what he must have been told.  As I say, I am satisfied he was told that the car was in a rest area at the top of Johnsons Hill and the only basis for confusion arose from Mr Burrow’s view that that rest area was part way up the hill rather than at the top of it. However, as I have already noted as well, there was only one rest area in the vicinity.

[9]      In these circumstances it does not appear to me that there was any relevant absence of disclosure on the officer’s part.  Indeed, he apparently gave a map to the appellant as well.   It cannot be necessary for an officer to, for example, meet a

defendant at the site and point out exactly where it was that his car was located.  On the other hand I do accept that it is encumbent upon an officer in relation to a charge such as this to accurately state where his car was parked at the time the reading was obtained, since this is directly material to the proof and defence of the charge.  But here, such was done.  The criticisms which are made of the officer’s description of the place impress me as quibbles, when the reality was that the only rest area in the vicinity had been identified and this was sufficient for the purposes of disclosure and the ultimate defended hearing of the charge.

[10]     For these reasons the appeal is dismissed.

Solicitors:

Appellant – Mr T H F B  , 2/45 Castor Bay Road, Milford, Auckland. Meredith Connell, Auckland for Respondent