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

[2010] NZHC 951

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2010-443-000006

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 June 2010

Counsel:J B N Henderson for appellant (with Mr C  ) S T Ellis for respondent

Judgment:      11 June 2010

RESERVED JUDGMENT OF DOBSON J

Solicitors:

Auld Brewer Mazengarb & McEwen, PO Box 738, New Plymouth 4340 (sam[email protected])

Counsel:

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

C V NEW ZEALAND POLICE HC NWP CRI-2010-443-000006  11 June 2010

[1]      In the early evening of 11 April 2008, Mr C   was driving his vehicle along Vivian Street, which is a one-way street in New Plymouth.   He was pulled over by Senior Constable Bromley after allegedly being recorded as travelling at

71 kilometres  per  hour  in  a  50  kilometre  per  hour  area.    He  was  issued  an infringement notice for speeding, which he defended at a first hearing before two Justices of the Peace on 18 August 2008.   Following the hearing, Mr C   was convicted,  fined  $170  and  ordered  to  pay  Court  costs  of  $130.    In  addition,

35 demerit points were imposed.

[2]      Mr C   appealed to this Court.  The conclusion of the reserved judgment of

Mallon J issued on 18 November 2009 was as follows:1

...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.

[3]      A request was made on Mr C  ’s behalf that any rehearing be before a District Court Judge.  That request was declined and the matter was the subject of a rehearing before two Justices of the Peace on 22 February 2010.   Their reserved decision on 9 March 2010 was that the charge was proven, and the original fine of

$170 and Court costs of $130 were ordered.  The Justices directed that the demerit points previously ordered “would also stand”.

[4]      Mr C   then appealed from the adverse finding at the second hearing.  He filed a comprehensive 13 page synopsis of argument in support of his appeal against conviction and sentence.   That was supplemented by relatively voluminous appendices.  Mr C   had conducted his own defence at both hearings before the Justices of the Peace.  However, he had retained Mr Henderson to appear for him at his  first  appeal  in  this  Court,  and  (apparently  subsequent  to  completion  of  his

1      C   v New Zealand Police HC New Plymouth CRI-2008-443-22, 18 November 2009 at [25].

synopsis of argument himself) Mr C   again retained Mr Henderson to present the argument at the appeal before me.

[5]      In view of the detailed criticisms made of the course of the second hearing before  the  Justices,  because  the  synopsis  of  argument  had  been  prepared  by Mr C  , and without opposition on behalf of the Police, I heard from both Messrs Henderson and C   on various aspects of the arguments sought to be pursued on the present appeal.

[6]      It is appropriate to marshal the diverse strands of argument, and deal with them, under the six headings that follow.

Failure to disclose

[7]      Mr C   undertook preparation for the second hearing on the basis of an expectation that the Police would be required to make complete disclosure of everything relevant to the hearing, entirely afresh.  The Police did not acknowledge any obligation to do so.   Criminal disclosure,  although procedural in  nature, is nonetheless  required  for  the  substantive  reason  that  an  accused  person  should, subject to principled exceptions, have access to all the information available to a prosecuting authority that is relevant to the issues to be determined by the Court. Where Mr C   had obtained access to relevant materials held by the Police in the course of the first hearing of the matter, it would be unnecessarily formalistic to impose an obligation that they “re-disclose” on a second occasion.   There is no justification for Mr C  ’s expectation they would do so.

[8]      However, that does not address his concern to have prior disclosure of any new materials intended to be relied upon by the Police at the second hearing.  He instanced “correct certificates for the radar unit” which were apparently handed to an expert called on behalf of the Police, Dr Armstrong, only after he arrived at Court, and which Mr C   had had no opportunity to consider and therefore prepare questions about.

[9]      However,  that  is  the  sort  of  supplementary  information  that  counsel competent  in  defending  such  matters  in  the  traffic  court  could  reasonably  be expected to deal with on the spot.  It is not a criticism in respect of which I consider Mr C   is entitled to expect different standards because he elected to defend the matter as a lay litigant on his own behalf.

[10]     After thoroughly testing various examples of his criticisms in this regard, I am not persuaded that he can make out any material omissions from the standard of disclosure reasonably expected in the circumstances.

General attitude of bias against him by the Justices of the Peace

[11]     Mr C   argued that the Justices did not approach the hearing in a balanced and fair manner and had decided that a conviction would be the outcome before the hearing had even started.  He cited this as a breach of Article 10 of the Universal Declaration of Human Rights 1948 (as well as contending in another context that the conduct of the hearing was in breach of the New Zealand Bill of Rights Act 1990).

[12]     The reserved judgment of the Justices records:

[5]       We wish to record that the defendant appeared in his own defence, although it appears from the Court records and file notes that he has sourced a reasonable amount of legal advice.

[6]       We also wish to record that the hearing was conducted according to normal Court procedure.  The defendant was extended considerable leeway by us.  He failed on many occasions to accept direction from the bench, and the hearing lasted in excess of six hours.

[7]       The defendant was offered the opportunity to re-plea on the charge, but elected to remain with his plea of not guilty.

[13]     From that, and from a perusal of numerous of the exchanges recorded in the transcript, it is apparent that the Justices were at times impatient with Mr C  . They also appear to have formed views on certain procedural and evidentiary aspects of the hearing relatively quickly, as they arose.   However, criticisms of such a general nature are far less than would be necessary to vitiate the outcome.  I do not accept that Mr C   can make out bias on the part of the Justices by virtue of the

tenor of their conduct.  However, certain of the more specific criticisms he makes of them also fall to be considered under some of the subsequent grounds of appeal considered below.

Refusal to permit cross-examination

[14]     Mr C  ’s synopsis listed six instances that he characterised as wrongful refusals  by  the  Justices  of  the  Peace  to  permit  him  to  cross-examine  Senior Constable Bromley on inconsistencies between the evidence the constable gave in the second hearing, and what he had said by way of sworn evidence at the first hearing.  Cross-examination on inconsistencies in previous evidence is a legitimate part of cross-examination in testing the credibility or reliability of a witness.   If, indeed, the apprehending officer was giving evidence on the second occasion that was materially inconsistent with the evidence he had given at the first hearing, then a refusal to allow the earlier testimony to be put to the witness would deprive the defendant of a potentially important opportunity to cast doubt on the credibility or reliability of what was being said in the second version of that evidence.

[15]     However, on testing Mr C  ’s claim to such inconsistencies, he was not able to satisfy me that inconsistencies of the type contemplated in the previous paragraph  had  arisen.    For  instance,  Mr C    characterised  Senior  Constable Bromley’s evidence at the second hearing about the location of his vehicle as being inconsistent  with  the  evidence  he  gave  about  its  location  at  the  first  hearing. However, the officer’s  evidence at the first hearing did not address the precise location of his vehicle.   Instead, Mr C   invited the inference that there was an inconsistency because  a plan he had  produced  in the course of  giving his own evidence at the first hearing portrayed the officer’s vehicle as stopped in a different location,  and  Mr C    was  not  cross-examined  at  the  first  hearing  about  any inaccuracy in what that plan portrayed.  However, the plan had not been put to the officer in the course of Mr C  ’s cross-examination of him at the first hearing, and there was accordingly no relevant inconsistency between the officer’s evidence at the second hearing as to the location of his vehicle and the absence of direct evidence on that point at the first hearing.

[16]     Given the nature of the forum and of the charge, evidence extending for some six hours suggests that the issues were aired more thoroughly than would ordinarily be the case for defended hearings on such speeding infringement notices.  It is to be expected that Justices would resist any non-specific attempts to complicate a second hearing by wholesale reference to the course of evidence at a first one.  The context is relevant to the Court’s approach to evidentiary matters.

[17]     A  second  constraint  on  his  cross-examination  that  Mr C    complained about was in questioning Dr Armstrong, whose expertise includes assessment of radar detecting devices used for monitoring the speed of motor vehicles.  Mr C   wanted to question Dr Armstrong about deviations from published best practice for use by enforcement officers of the type of device on which his speed had allegedly been recorded.  He broached the topic in this way:

Q.Do you agree that section 19 [of a manual on the topic] states “If there is ever doubt concerning the speed, or operation of the speed detection unit, no action is to be taken”?

A.        That’s what it says.

Q.        Does it concern you that in this case –

OJBECTION: SERGEANT SUTTON (16:04:03)

Bordering on opinion.  This witness has not heard the evidence in this case. Your Worships have and you will make a ruling on credibility of the officer who did the stop on his tracking history, so I object to this witness being asked this question.

THE COURT:

I concur with that.   Not comfortable with any more questions on tracking history for this witness.

MR CHING:

This is the crux of the case.

THE COURT:

We’ve given you a ruling.  You don’t have to like it. You just have to accept it.

[18]     Again, counsel competent in contesting such matters could reasonably be expected to have broached the opinion sought from the expert on a hypothetical basis.  For instance:

...if in a particular case, there was more than one vehicle in the band, but no tracking history of each of the vehicles had been kept, then would you have a concern at the reliability of the recorded speed?

[19]     Certainly, the prosecuting sergeant was very prompt in lodging an objection that  was,  in  literal  terms,  justified  because  the  terms  of  Mr C  ’s  question appeared to require a finding by Dr Armstrong on a factual matter in the particular case when he had not heard the factual evidence, and the matter was for decision by the  Court.     Mr C  ’s  inability  to  regroup,  where  competent  counsel  could reasonably be expected to do so, cannot transform this into a material error on the part of the Justices that could go to vitiating the outcome.

Inadequate analysis of wrongful reliance on certificate under s 146 of the Land

Transport Act 1998

[20]     Section 146(1) of the Land Transport Act 1998 (the Act) provides:

In proceedings for [a speeding offence against any bylaws or enactment, any other offence against this Act, or an offence against the Road User Charges Act 1977], the production of a certificate (or a document purporting to be a copy of the certificate) purporting to be signed by a sworn or non-sworn member of the Police authorised for the purpose by the Commissioner or by a person authorised for the purpose by the [Agency], as to the testing and accuracy of any equipment or device to which this section applies that is referred to in the certificate, is, in the absence of [proof] to the contrary, sufficient proof that the equipment or device referred to was tested on the date specified in the certificate and was accurate on the date of the alleged offence.

[21]     That provision streamlines the mode of proving the accuracy of equipment used  for  policing speeding offences.    It  creates  a  rebuttable  presumption.    The section also requires any person subject to a charge in which a certificate is to be relied upon to give 14 days’ notice of their intention to challenge the informant’s intended reliance on such a certificate:

In any proceedings where a certificate has been produced under this section, the court may, on application made not less than 14 days before the hearing

of the charge concerned, and if satisfied that there is good cause to do so, set aside the certificate and require the accuracy of the equipment or device to be established by evidence other than the certificate.

[22]     In this case, there was apparently at the hearing some question as to whether Mr C   had given the requisite notice under s 146(6), so as to entitle him to challenge the informant’s reliance on certificates under s 146(1).   Mr Henderson advised that he had, in fact, given the requisite notice on behalf of Mr C   under s 146(6) and Ms Ellis did not challenge that.

[23]     A deficiency Mr C   relied upon was that testing of the radar devices is intended to be carried out in accredited laboratories.   His research has apparently revealed a practice of non-compliance with that requirement, in that accredited laboratories exist only in Auckland and Wellington, and the testing of the devices has routinely been done on a regional basis in motel rooms hired for the purpose by the certifying staff.  Mr C  ’s argument was that the certificate was not a proper one for the purposes of s 146, when that requirement had not been complied with.

[24]     However, it is not mandatory for an informant to rely on certificates under s 146(1), in order to make out such charges.  That is merely an efficient means of substituting for direct proof of the accuracy of the recording devices.  In this case, the  Police  called  Mr  Robert  Gardner  from  Police  Calibration  Services  and Dr Timothy Armstrong from Industrial Research Limited.   Mr Gardner’s evidence traversed the reliability of the radar unit in question, and he was cross-examined about that.   Dr Armstrong gave evidence  about the procedures for testing radar equipment.   He opined that the failure to conduct testing on the device in an accredited laboratory had no bearing on the accuracy of the radar unit on the day of the infringement.   The Justices of the Peace did not ultimately rely on the s 146 certificate.   Rather, they were satisfied that none of the grounds challenging the accuracy of the radar unit device were made out, by virtue of the content of the evidence of Mr Gardner and Dr Armstrong.

Finding that the speed reading attributed to Mr C   was proven, was against the weight of evidence

[25]     There were a number of strands in Mr C  ’s criticism that the informant had failed to establish the speed at which he was travelling, and that it was his vehicle to which the speed reading related.

[26]     Mr C   appears to have convinced himself that the radar device could not have been reflecting the speed of his vehicle, given the angle of the beam, and his recollection of the location of the patrol car, relative to Senior Constable Bromley’s evidence that he had “locked on” the speed as Mr C  ’s vehicle was more or less parallel with him.   Mr C  ’s criticism overlooks the common sense distinction between the point at which the radar device recorded the speed of his vehicle, and the point at which the operating officer operated the device so as to lock in the speed it had been recording.  It is unnecessary to make a positive finding on the evidence on appeal, but I am readily satisfied that various rationalisations including that one were open to the Justices of the Peace in arriving at the view they did that the speed of Mr C  ’s vehicle had been accurately recorded.

[27]     The other aspect of this was non-compliance by Senior Constable Bromley with a tracking procedure recommended as the standard when using a speed monitoring radar  device  in  circumstances  where the  radar  beam  is  likely to  be reflecting the speeds of more than one vehicle.  Senior Constable Bromley did not follow  the  standard  practice.    As  Ms Ellis  submitted,  non-compliance  with  the procedure does not prevent the charge being proven.   It is a matter going to the credibility and reliability of the evidence from the monitoring officer.  In this case, non-compliance with the procedure was raised in cross-examination and the Justices record they are satisfied that the evidence established that the speed recorded was that of Mr C  ’s vehicle.

[28]     Accordingly, I am not satisfied that Mr C   can make out the critical finding on the charge was against the weight of evidence.

Inaccuracies/omissions from the transcript

[29]     Mr  C    has  had  an  issue  with  the  accuracy  and  completeness  of  the transcript of the hearing.  Considerable resources have been deployed in attempting to placate these concerns.  With respect, a standard of 100 per cent word-for-word accuracy is one that the Court transcription service simply cannot aspire to.  Appeals on very much more serious criminal proceedings than the present one are routinely argued  and  determined  on  less  than  complete  transcripts.     An  appellant  in Mr C  ’s position would need to raise inadequacies that clearly had the prospect to cause a miscarriage of justice because of the inability to completely reconstruct what occurred at a hearing, before the criticism of the extent and accuracy of a transcript could have any relevance on appeal.  That simply does not arise in this case.

[30]     For all these reasons, I am satisfied that the appeal must be dismissed, and I

do so.

Dobson J