C v Police HC Timaru Cri-2006-476-15

[2007] NZHC 24

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2006-476-000015

C

Appellant

v

POLICE

Respondent

Hearing:         9 February 2007

Appearances: Appellant in Person

I R Murray for Crown

Judgment:      9 February 2007

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a conviction for exceeding 100 kilometres an hour. The police say that the appellant was recorded as travelling at 124 kilometres per hour while overtaking a vehicle.  The background is that the appellant says that he was following a vehicle which was travelling at less than 100 kilometres per hour, in the order of 85 to 95 kilometres per hour.  He was frustrated by that and decided to overtake.  This is, of course, a common enough event.  He disputes that in the course of overtaking he reached anything like 124 kilometres.  He admits that he did exceed

100 kilometres and thought he was doing 115 kilometres.

C V POLICE HC TIM CRI-2006-476-000015  9 February 2007

[2]      He  considered  that  his  speedo  had  been  calibrated  against  a  number  of vehicles and was spot-on, and was of the view that there had to be something wrong with the accuracy of the stalker radar used by the police officer.   As part of this appeal the appellant is concerned at what he sees to be the discrimination whereby some persons who overtake in excess of 100 kilometres per hour are prosecuted, and some not.

[3]      An appeal against a decision of the District Court is not a procedure by which it is possible to challenge the exercise of the police power to choose or exercise its discretion of whether or not to prosecute.  There are many occasions, some related to particular parts of the country rather than others, whereby many motorists have good reason to be aggrieved at the selective manner in which prosecutions proceed, but that issue can only be tackled by way of judicial review of administrative action, a very expensive and cumbersome process which is, for practical purposes, not open in this area of transport prosecutions.

[4]      There is no particular reason, in any event, to try to develop some new law on this.  There are good reasons why prosecutors should have discretion of whether or not to prosecute.  They are well established.  The Crown has provided a lot of materials in that regard, but I do not think it is necessary to go into them.

[5]      The  overall  importance  of  there  being  a  prosecution  discretion  is  well established and it just is a side effect that every now and again, sometimes there is good reason to believe that the discretion is executed unfairly.

[6]      It does seem to me, however, that it is appropriate to set the decision aside and refer the matter back to a District Court Judge for trial, rather than to two Justices of the Peace.  This is because of another ground of the argument, namely that Mr C    did not get a fair trial.   He was defending the charge himself, without the assistance of legal counsel.   He was obviously not aware of the requirements of s 146(6) of the Land Transport Act 1998 which requires him to give

14  days  notice  before  the  hearing  if  he  is  going  to  challenge  to  set  aside  the certificate as to the accuracy of the approved vehicle surveillance equipment. However, where a litigant defends him or herself it is well established that there is a

duty on the Judge, or Judges as the case may be, to assist the lay litigant to argue the case within the requirements of the law rather than on the other hand to presume a degree of competence that one would expect of a professional police prosecutor or barrister and solicitor of this Court.

[7]      In my view the learned Justices of the Peace in this case did not render that assistance.  It is not necessary, I think, to get into the detail of it, but I am satisfied that it is important that Mr C    be himself satisfied that he has been fairly tried and in that way can accept the verdict, whichever way it goes.  In this particular case, given that he has told me he wishes to challenge the accuracy of the stalker device used in this case, the appropriate and just course is to set the conviction aside and direct that the case be re-heard before a District Court Judge.

[8]      I am satisfied also that Mr C    has now had s 146(6) brought to his attention.  He is concerned that he will need some co-operation from the authorities in order to present his case, and that he may not get it.   That is something that I cannot deal with at this stage, but of course would be grounds for an adjournment if he was making reasonable requests to the prosecution authorities which were not being met.   That is a matter that can be considered by the District Court in due course if Mr C    believes that he is being thwarted unfairly in the effort to build his case.

[9]      For these reasons the appeal is allowed.

Solicitors:

Crown Solicitor, Timaru, for Respondent

Cc:   Appellant in Person:  Mr J S C   , c/- [address], Milton