C v Police HC Auckland CRI 2007-404-322

[2008] NZHC 1663

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-322

BETWEEN  C

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         28 October 2008

Counsel:         S Nicolson for Appellant

N Whittington for Respondent

Judgment:      28 October 2008

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Lowndes Jordan, Auckland

Crown Solicitor, Auckland

C V NEW ZEALAND POLICE HC AK CRI 2007-404-322  28 October 2008

[1]      Mr C   was charged with driving a motor vehicle in excess of the speed limit.  After a defended hearing in the District Court at Auckland, in August

2007, two Justices of the Peace found the charged proved.   Mr C   was ordered to pay a fine of $170 and Court costs of $30.   Mr C   appeals against that finding and the orders made.

Facts

[2]      On the afternoon of Sunday 24 February 2007, Mr C   was driving his red Ferrari motor vehicle along Tamaki Drive, in the direction of Mission Bay. His son was a passenger in the car.

[3]      At the point of Tamaki Drive in issue, there are two lanes on either side of the road.   A 50km/h speed limit is in force.  There is no dispute that Mr C  ’s vehicle was situated in the lane closest to the centre line.  Nor is there any dispute that a blue Toyota “people mover” vehicle was in the vicinity of the Ferrari.  It was driving in the same direction but on the lane closest to the footpath.

[4]      Constable  Ngaau  was  on  speed  detection  duties  on  Tamaki  Drive  that afternoon.  He was operating a Stalker DSR radar speed detector.  He observed what he believed to be the red Ferrari passing the Toyota.   The constable activated the speed detector, resulting in a reading of 75km/h.

[5]      After obtaining that reading, the constable performed a U-turn manoeuvre and, after driving up to Mr C  ’s vehicle, pulled him over and issued him with a speeding infringement notice alleging that Mr C   was travelling some 25km/h over the legal limit.

[6]      Ms Nicolson, for Mr C  , has raised two points on appeal, both of which are relevant to the question whether the Informant proved beyond reasonable doubt that it was Mr C  ’s vehicle that was travelling at 75km/h.

[7]      The first related to evidence given by the constable of his observation that the vehicle in front, at the time that the reading was taken, was the Ferrari.  Ms Nicolson submits that that  amounted  to  evidence  of  identification  to  which  s 67A  of  the Summary Proceedings Act 1957 refers.

[8]      Her second point is that, when the speed detector was being operated in “Fastest Mode” and two vehicles were in close proximity, separate readings could be expected from the stronger (namely, the larger) and the faster (the smaller) vehicles. She submitted that the absence of a second speed reading was indicative that the bigger Toyota vehicle was the subject of the reading received from the radar device.

The District Court judgment

[9]      Constable  Ngaau  was  the  sole  witness  for  the  Informant.     Both  Mr C   and his son gave evidence on Mr C  ’s behalf.  His son was aged 12 years at the time evidence was given in the District Court.

[10]     In their judgment, the Justices of the Peace recited the evidence given before them.  Their conclusion that the charge was proved seems to be based on one short paragraph in the judgment.  The Justices said:

[11]     When your car [Mr C  ] was in front of the blue vehicle Constable [Ngaau] locked on the radar which confirmed excessive speed. The observation that the blue vehicle was passing your car actually took place after the speed of your car was locked in.

[11]     The observations made in para [11] of the Justice’s decision are problematic. The first sentence seems to confirm the constable’s evidence that the Ferrari was in

front at the time the radar locked onto it.  However, the second sentence seems to suggest acceptance, if only in part, of the evidence given by Mr C   and his son that the blue Toyota vehicle passed the Ferrari on the inside.

Analysis

[12]     Mr Whittington, for the Informant, submitted that this was not a case in which I should interfere with the decision of the Justices.   While acknowledging problematic aspects of the decision to which I have just referred, Mr Whittington referred me to evidence on which the Justices could have based a conclusion that the charge had been proved.

[13]     In my view, the findings of the Justices of the Peace are not supported by reasons which would adequately explain why they believed the charge was proved beyond reasonable doubt.

[14]    In the first place, the Justices had evidence from the constable and Mr C   which conflicted.  The finding in para [11] of their decision does not suggest that any veracity finding was made.  Nor were issues of reliability addressed in a manner which would explain the decision reached.   Whether, as Ms Nicolson has said, that discrepancy can be based on a failure to follow s 67A of the Summary Proceedings Act (as to the need for caution of identification) or on a more general assessment  of  comparative reliability of  evidence,  it  could  not  be  said  that  the Informant’s case had been proved beyond reasonable doubt on the visual evidence alone.

[15]     When  one  takes  account  of  the  speed  device  evidence,  there  are  also problematic aspects with it.  Mr Whittington may well be right to say that in certain circumstances a smaller vehicle may be travelling in front of a large vehicle and the detection  device  could  give  solely a  speed  reading  from  the  faster  and  smaller vehicle.  However, the way in which the point is expressed in the Manual to which reference was made at the District Court hearing, suggests at least some doubt on that  issue;  at  least  in  the  absence  of  evidence  explaining  how  that  could  have occurred in this particular case.

[16]     It was accepted that the device was in “Fastest Mode”.  The Manual states:

FASTEST MODE

DSR  offers  a feature  called  Fastest  Speed  Tracking.    Fastest  is a  field selectable feature and can be disabled, if desired.

The addition of the Fastest mode allows the ability to track small high-speed targets that normally could not be tracked because a stronger target shields the weaker target from normal speed measurement.  The classic example is where a speeding sports car passes a slower moving truck.  The fastest sports car, although clearly speeding, previously could not be measured because the strongest truck target captures the target display window.  The DSR, in this example, will display the speed of the strongest truck in the target window, while the speed of the fastest sports car will appear in the middle fastest window. Tracking of both targets may be performed simultaneously.

[17]     I make no finding on whether Mr Whittington’s proposition is right or wrong, as to the likelihood or otherwise of the device giving a reading from a smaller and faster vehicle.  What is important in the present case is that there is room for doubt as to the way in which the reading was obtained and from which vehicle.  That, coupled with the problematic aspects of visual identification, means that I do not accept the decision is safe.  For that reason, the appeal must be allowed.

Result

[18]     The appeal is allowed.  The conviction and fine entered in the District Court are set aside.  The order for costs is set aside also.  I direct that the information be dismissed.

Costs

[19]     Initially, Mr C   sought costs in the event that the appeal succeeded. I made it clear that I was not prepared to entertain an application for costs and such an application could only be pursued if there were a rehearing in the District Court and the issue decided substantively in Mr C  ’s favour.  Ms Nicolson took instructions from Mr C  , who withdrew his application for costs.

[20]     In those circumstances, given the nature of the alleged offending, I consider it

inappropriate to direct a rehearing and have not done so for that reason.

P R Heath J