C v Police HC New Plymouth Cri-2010-443-6

[2010] NZHC 1279

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2010-443-000006

C

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 July 2010 (by telephone) Counsel:  Applicant in person

S T Ellis for respondent

Judgment:      26 July 2010

RESERVED JUDGMENT OF DOBSON J

Solicitors:

S R J C  , 201 Wymer Road, Glenbrook, Auckland ([email protected])
Auld Brewer Mazengarb & McEwen, PO Box 738, New Plymouth 4340 (sam[email protected])

Copy to:

J B N Henderson, New Plymouth ([email protected])

C V NEW ZEALAND POLICE HC NWP CRI-2010-443-000006  26 July 2010

[1]      Mr C     was   issued   with   an   infringement   notice   for   travelling   at

71 kilometres per hour in a 50 kilometre per hour area in New Plymouth on 11 April

2008.  A first defended hearing before Justices of the Peace occurred on 18 August

2008,  following  which  Mr C    was  convicted  and  fined.    He  appealed  that decision and on 18 November 2009 Mallon J allowed the appeal, quashing the orders made by the Justices and referring the matter back for re-hearing.

[2]      A further hearing before two Justices of the Peace occurred on 22 February

2010.   In a reserved decision on 9 March 2010 they found that the charge was proven, with the result that a fine was again imposed on Mr C  .

[3]      Mr C    pursued  a  second  appeal  which  I  heard  in  the  High  Court  at New Plymouth on 9 June 2010.  In my judgment of 11 June 2010, I dismissed his appeal.

[4]      Mr C   has now sought leave to appeal to the Court of Appeal.  In addition to his notice of application, Mr C   has filed a second document of a page and a half in length, containing criticisms of my judgment under five headings.

[5]      At the outset of the hearing, I explained to Mr C   that leave could only be granted if, on the terms of s 144 of the Summary Proceedings Act 1957 he identified a question or questions of law which, by virtue of their general or public importance or for other reason, justified the granting of leave for a second appeal.

[6]      Mr C    spent  the  vast  majority  of  a  hearing  lasting  some  55  minutes expanding on  the  criticisms  of  process  so  far  as  the  second  hearing before  the Justices of the Peace was concerned, and criticising my failures to make factual findings favourable to his case, on the argument of his second appeal.

[7]      I dealt with Mr C  ’s complaints of bias against him by the Justices and their refusal to permit further cross-examination at [11] to [19] of my 11 June 2010 judgment.   In his current argument, Mr C   was highly critical of the District Court’s decision declining his request that the second defended hearing be before a District Court Judge rather than Justices.   He claimed to have been advised by a

number of lawyers that there was no point in retaining legal representation to present an argument before the Justices, and that in presenting his own case he was confronted with demonstrable bias in favour of the Police from the outset.  Mr C   was represented by counsel at the argument of both his appeals in the High Court.

[8]      Although different in their detail, the points he raised were a repetition of matters  argued  on  his  second  appeal,  and  were  considered  in  my  judgment. Mr C   did not formulate any question of law on these points.

[9]      The hearing by telephone conference on 21 July 2010 ended without any request  made  by  Mr C    to  submit  any  further  materials  in  support  of  his application for leave.   Notwithstanding that, the following morning, the Court Registry received a communication from Mr C   in which he stated that the point of law he had been discussing was that addressed at page 3 of the synopsis relied on in argument of the second appeal before me.[1]   That relates to his entitlement to have a  fair  trial  before  an  independent  and  impartial  tribunal,  as  enunciated  in  the Universal Declaration of Human Rights, Article 10.   It may be that the minimum

standards  reasonably  to  be  expected  of  a  bench  of  Justices  could  constitute  a question of law, appropriately considered on a second appeal.  The examples cited in the course of Mr C  ’s second appeal certainly demonstrate that the Justices were somewhat testy with him.  However, expectations of any tribunal must be assessed in context, and I do not see this as forming the basis of any appropriate question of law in the present circumstances.

[1] In this regard, I also acknowledge receipt of a second bundle of documents on 23 July 2010.

These comprised s 15 of Testing Laboratory Registration Act 1972, an explanatory note on introduction of the Bill that became that Act, a commentary on the use of NZS ISO 17025, and a page of Mr C  ’s corrections to the transcript of the hearing.

[10]     Mr C   placed considerable emphasis on the inadequacies in the location used to calibrate the particular radar unit when it was being certified, the lack of competence of those involved in doing so, and the prospects for certification of the device to be in error.  That certification would be relevant if the informant elected to rely upon s 146 of the Land Transport Act 1998.  Here, the informant did not rely on a certificate under s 146, meaning that the accuracy of the speed recorded was to be established independently of the certificate.   On this aspect, Mr C  ’s criticisms

amounted to an argument that the finding that the charge was proven was against the weight of evidence.   Mr C   appears to have convinced himself that the device could not have been obtaining any reliable reading of the speed of his vehicle, so that the Court could not have been satisfied of the accuracy of the device or that the recorded speed related to his vehicle.  Those are not grounds, in the context of this prosecution, that could constitute a question of law of general or public importance.

[11]     Each  of  the  other  criticisms  Mr C    made  of  the  decisions  thus  far inevitably fall into the same category.

[12]     Relatively late in the hearing, Mr C   acknowledged that he had not read the  terms  of  s 144  of  the  Summary  Proceedings  Act,  and  he  appeared  either disinclined or unable to respond to the criteria under that section, as I had outlined to him at the outset.

[13]     If strength of Mr C  ’s apparent conviction that he has suffered an injustice was a criterion for leave to appeal, then he might well qualify.   However, with respect to his re-argument of all the matters put at the hearing of the second appeal before me, he has not raised any realistic prospect of an error made by me that constitutes other than an error on the facts.  He has been unable to come anywhere near making out a case under s 144, and accordingly I decline leave.

Dobson J