C v Police HC New Plymouth CRI-2008-443-22

[2009] NZHC 2122

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2008-443-22

C

v

NEW ZEALAND POLICE

Hearing:         29 June 2009

Appearances: Mr Henderson for Mr C 

Mr Walls for New Zealand Police

Judgment:      18 November 2009         at 12.45 pm

JUDGMENT OF MALLON J

C V NEW ZEALAND POLICE HC NWP CRI-2008-443-22 18 November

2009

Introduction

[1]      Mr C   was driving his car in a New Plymouth street in the early evening on 11 April 2008 when he was pulled over by a police officer and given an infringement notice for speeding.  He disputed the infringement notice, claiming that he was not speeding and challenging the accuracy of the radar in recording his speed. Following a defended hearing before Justices of the Peace he was ordered to pay a fine of $170 and court costs of $130 and 35 demerit points were imposed.

[2]      Mr  C    now  appeals.    He  claims  that  the  hearing  ought  not  to  have proceeded because, contrary to his wishes, he was without legal representation and had not received disclosure of information material to his defence.  He also says that there was a miscarriage of justice because the Justices of Peace did not understand his arguments.

Background

[3]      Mr C   first began his requests for information at the roadside when he was apprehended.   At this time he was shown the radar reading of 71 km/hr (the maximum speed for the area was 50 km/hr), but denied that he was speeding.  He asked to see the radar logbook and calibration units for the radar unit.  The officer refused his requests because he considered Mr C   to be agitated and aggressive. He told Mr C   that he could write to the police infringement bureau for details.

[4]      On 14 April 2008 Mr C   wrote to the police infringement bureau.  He did not specifically request that he be provided any information.  He did note things that he had asked the officer to provide and which were refused.   He also referred to having gone to the New Plymouth police station to get calibration data on the radar unit and that the officer on the desk had been unable to assist.  He pointed out that the infringement notice had been incorrectly dated.

[5]      That same day a replacement infringement notice was posted to Mr C   with the correct date.

[6]      On 15 May 2008 the police advised Mr C   that the original infringement notice had been replaced, that his speed had been checked by the radar device and the officer had complied with the “code of operations” which included the requirement to positively identify the target vehicle, and that the offence “would not be waived”.  With this letter the police provided to Mr C   a copy of the radar log book for 11 April 2008.  They also provided a Certificate of Accuracy for the radar unit (a stalker DSR) dated 10 October 2007.

[7]      Mr C   wrote to the police on 14 June 2008 again referring to the incorrect date on the original infringement notice, disputing that he was speeding and asserting that the vehicle speeding was a white hatchback in another lane, asserting that the radar could not identify a target if there were multiple vehicles in the area and noting that to visually identify any vehicle the officer would have had to look long range into  the  headlights  of  oncoming  cars.    Mr  C   also  asked  for  the  technician calibration logs for the unit, the factory test sheets supplied with the unit and the factory specification as to accuracy of the unit in all modes of operation, the vehicle identification protocol referred to by the police in their 15 May 2008 letter, the distance from the traffic lights that the unit was set for and the distance from the unit to this set point, and information about the officer’s eyesight.

[8]      On  25  June  2008  the  police  wrote  to  Mr  C    simply referring  to  the replacement infringement notice.   The letter did not comment on the information Mr C   had requested and nor did it provide that information.  It seems that it was around this point that Mr C   instructed solicitors to represent him.   On 9 July

2008 Mr C   was advised by the District Court a defended hearing would take place on 18 August 2008.

[9]      On 8 August 2008 Mr C   sent an email to his solicitor asking if he had received the information from the police.   The solicitor replied that he was still waiting for it and he would provide it to Mr C   when it arrived.  Mr C   asked the District Court for the matter to be heard by a Judge (rather than justices of the

peace) and seems to have thought that his solicitor had made a similar request.  On

14 August 2008 he also asked the Court by email to “stay the proceedings” to enable his solicitor to represent him and to give the police more time to provide the information he had requested.  The registry advised Mr C   that same day that the matter would be proceeding and further that “Mr Fraser called me yesterday to let me know that he would not be representing you on this matter”.

[10]     On Friday 15 August 2008 Mr C   visited the New Plymouth police station to ascertain if there was any available disclosure.  He was provided with the officer’s handwritten notes completed on a form “Notes ‘Made at Time’ by officer”.

Defended hearing

[11]     The  defended  hearing  proceeded  on  18  August  2008  with  Mr  C   representing himself.   Evidence was called from the officer who issued the infringement notice. Mr C   cross-examined the officer on a range of matters including as to how the officer had been able to get a single vehicle into the beam of the radar when there were multiple vehicles on the street, the range of the radar, what triggers the radar unit, the procedure the officer used and what his eyesight was like. The officer said that his eyesight had recently been checked and that he had 20/20 vision when wearing corrective lenses as he had been on 11 April 2008.  The officer maintained that he had made a visual observation of Mr C  ’s vehicle before operating the unit and that it was not possible that one of the other vehicles had triggered the unit.

[12]     Mr C   gave evidence in his defence.  Amongst other things he maintained that he was not speeding, that there were a number of vehicles on the two-lane one way street, and that a white car had accelerated to about three vehicles ahead of him and  had  then  suddenly  braked.    He  pointed  out  what  he  perceived  to  be  the difficulties  of  an  accurate  visual  identification  (the  officer  looking  at  distance through his rear vision mirror at oncoming vehicles with their headlights on).   He alleged the officer had fabricated records.   He referred to having been denied a “stay” so his lawyer could be present and that consequently he had been denied legal representation for the hearing.

[13]     Mr C   also repeatedly stated that he had been denied disclosure and was having to work off what information he had.  As to “calibration”, he said that if this is not done correctly, or is done with a different tuning fork, then the daily log book is invalid, the calibration for the unit is invalid and the certificate of accuracy is “null and void”.  He then went on to discuss potential issues with the accuracy of the unit noting that he did not have the information he needed from the police about this.  He concluded by saying that his case had been severely compromised by the lack of disclosure.

[14]     The decision of the Justices of the Peace was as follows:

Mr C  , we have had an in-depth discussion here today on the strengths and weaknesses of the Court system on handling traffic speeding situations particularly.   You are obviously not happy with some of the aspects of disclosure of facts in the system.  This includes accuracy of measurement of speed, maintenance of equipment and the ability of devices to lock onto the vehicle.  You do not believe that the withholding of some information you complain about seriously affects the proving of guilt in your particular case. We find you guilty of the offence charged and you are fined $170, Court fees of $130 plus 35 demerit points.

[15]     The “you” in the second to last sentence appears to be an error given that Mr C   was at pains to point out that he felt he had been denied information he needed.  I read it as meaning that the Justices of the Peace, rather than Mr C  , had this view.

Legal representation

[16]     The respondent says that the defended hearing had been set down for some time, the Court was not obliged to grant the adjournment Mr C   had requested, there  is  no  evidence  before  this  Court  that  Mr  C    sought  to  have  counsel represent him and Mr C   came to the defended hearing equipped to defend the matter on his own behalf.

[17]     I agree with the respondent that there ought to have been affidavit evidence before the Court dealing with what had happened as between Mr C   and his solicitor such that he was unrepresented at the  hearing.    However  the  notes  of evidence of the defended hearing record Mr C   as referring to the Court’s refusal

to grant the “stay” so that he could have legal representation and that because this had been declined he had been denied legal representation.  The court file for this appeal contains the email correspondence referred to above (at [9]) which supports this.

[18]     I disagree that the request for an adjournment (which is what the request for a stay was meant to be) was made too late for it to be granted.  The correspondence shows that Mr C   had been requesting information and had not been told that the police considered their disclosure obligations to be complete.  (The explanation from the police is that Mr C  ’s letter of 14 June 2008 had gone on to the wrong file – the file relating to the original infringement notice rather than the file for the replacement notice.)   The email correspondence referred to above indicates that Mr C   was following this up with his lawyer on 8 August 2008 and that he also did so by visiting the police station on 15 August 2008.

[19]     It  does  appear  that  Mr  C    came  prepared  to  defend  the  matter  on

18 August 2008 but in my view that does not count against him.  Having been told there would be no adjournment, and wishing to defend the matter, it was not surprising that he came prepared as best he could to do so.  Mr C   ought to have made a request for an adjournment directly of the Justices of the Peace, but he did raise his difficulties (non-disclosure and absence of representation) sufficiently for the Justices of the Peace to be alert to the possible need for this.   Mr C   also ought to have instructed someone to take the place of his solicitor if he was not available but, at least on the basis of the email correspondence, this seems to have arisen late in the piece.  A review of the notes of evidence show that Mr C   was not familiar with legal issues and the prosecutor raised a number of objections to how Mr C   was proceeding.  Legal representation may have assisted Mr C  .

Disclosure

[20]     The respondent contended that some of the information requested was not material that ought to be provided on disclosure (eg. the officer’s eyesight records and the police internal code of compliance for the unit) and that other information would not have made  any difference.   Mr C   has responded with a 6  page

“synopsis  of  scientific  &  engineering  arguments”  in  which  he  says  that  the challenges he wishes to make are as to the stated accuracy of the unit, the age of the unit, unit calibration issues, police laboratory certification, tuning fork issues and log book issues.

[21]     It is not necessary that I decide what disclosure Mr C   was entitled to and what he was not.  That is because on 10 December 2008 and 2 March 2009 he was provided with the further information he had been requesting.   He views this information as relevant to the issues he raises in the synopsis of arguments referred to above.  I consider that this information is new (that is, “fresh”) evidence which Mr C   did not reasonably have available to him at the time of the defended hearing.  At that time he had been requesting that information and had not been told it would not be provided nor given reasons why it would not be provided.

[22]     On the basis of the limited submissions from both parties that were made on technical issues, I am unable to determine whether this new evidence would have made any difference to the outcome.  Mr C  ’s pursuit of the information and his synopsis does at least demonstrate that Mr C   is determined in his defence. Armed with this information and legal representation it may be that he will be able to pursue an application to challenge the Certificate of Accuracy under s 146 of the Land Transport Act 1988.  (Mr C   was asked in the defended hearing if he knew about this section and said that he did not and, if that was the position, legal representation may have been useful to him in this regard.)

Lack of understanding by Justices of the Peace

[23]     The reasons given by the Justices of the Peace for rejecting the technical issues raised were brief.  It is unclear from those reasons whether they understood them or not.   Reasons must be adequate to the occasion (R v Jefferies [1999] 3

NZLR 211 (CA) at [14] to [17] in a similar context as here).   Ordinarily in  a defended hearing on a matter such as this a sentence or two from Justices of the Peace will be adequate.  Here Mr C   had raised technical issues.  The Justices of the Peace would have been entitled to have rejected Mr C  ’s submissions and evidence on the basis that Mr C   had not made it clear how his points showed

that the radar reading was or may have been inaccurate if that was the position.  Or they may have decided that they ought to rely on the Certificate of Accuracy in the absence of an application to have it set aside.  But the problem is that I cannot tell why the Justices of the Peace decided that the issues raised by Mr C   did not affect the proof of the offence nor why the further information would not do so.

Conclusion

[24]     There is no absolute right to legal representation (R v Condon [2007] 1 NZLR

300 (SC)) and an adjournment will not always be granted where a person is without representation (see Young v Police HC AK CRI-2005-404-222 as an example where no miscarriage of justice arose when an adjournment was declined leaving the defendant without representation); it is not clear whether the further information Mr C   now has will make any difference; and the Justices of the Peace may have been correct to reject Mr C  ’s evidence and submissions.   However, the three matters I have discussed together cause me sufficient doubt as to whether Mr C   had a fair hearing and because of that I consider that the appeal should be allowed (not unlike the situation that arose in Hines v The Ministry of Transport HC AK AP

168/91 3 September 1991).

[25]     I  have  considered  whether  the  time,  cost  and  inconvenience  of  another hearing is warranted given that a speeding offence is such a minor matter.  However the officer’s evidence was clear that it was Mr C   that he saw speeding and the certificate  of  accuracy  for  the  radar  unit  was  produced.    Mr  C    has  raised technical  issues  which  I am  unable  to  assess  on  the  basis  of  the  evidence  and submissions before me.  On balance I consider that it is in the interests of justice that the orders of the Justices of the Peace are quashed and that Mr C   is given a further opportunity to defend the matter.  The matter is therefore referred back for rehearing.  It will then be for the respondent to decide whether it wishes to pursue

the matter.

Counsel:

B Henderson, New Plymouth, [email protected]

T C Walls, Auld Brewer Mazengarb & McEwen, New Plymouth, [email protected]

Mallon J