C v Police HC Timaru CRI 2008-476-19

[2008] NZHC 2464

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2008-476-000019

C

Appellant

v

POLICE

Respondent

Hearing:         31 July 2008

Counsel:         Appellant in Person

C A O'Connor for Respondent

Judgment:      31 July 2008

JUDGMENT OF FOGARTY J

[1]      Mr C   appeals against a conviction in the Oamaru District Court on 12

June by two Justices of the Peace for an offence against the Land Transport Act

1998.   He was found to have exceeded a speed limit by 16 kilometres an hour.  He was convicted and fined $120 and ordered to pay Court costs $130.  The note of the Justices of the Peace is short:

[2]       You have admitted it says that you were doing a 105 not 116.  You have also on your admission said that the Japanese car speedo’s [sic] are thoroughly unreliable.   You have no proof of being an expert witness and none were called and we therefore accept the Police evidence and unfortunately reject yours at this stage.

C V POLICE  HC TIM CRI 2008-476-000019  31 July 2008

[2]      In this appeal Mr C   has a number of grievances:  firstly, that the notes of evidence do not accurately record the exchange between he and the witnesses. That may be so but on the face of it what I see is that his questions in cross- examination are demarcated by three dots when it finishes and the next sentence is the answer of the witness.  Secondly, he felt that he was being discriminated because he was defending himself.  Thirdly, he felt he did not get a fair trial because he was unable to get clear evidence from the police officer who was operating the radar device as to the position that the officer had been in at the critical time of measuring the speed of the appellant’s vehicle at 116.  Certainly, the officer could not really remember precisely where he was although he did acknowledge that he might have been in a particular point.

[3]      Establishing where the machine was was an important part of Mr C  ’s case because his defence was that the radar device is, in certain circumstances, not accurate.  This is particularly where, as here, there was a slope.  He argues that the radar device depends on the sending out and receiving wave signals, that every wave has a vertical element and a horizontal element and where the signal is sent and received over a slope then the vertical element, by definition, cannot be parallel at all passages of the beam and thus there can be inaccuracy in the recording.

[4]      At the hearing before the District Court Justices of the Peace Mr C   had not taken advantage of s 146(1) of the Land Transport Act which provides:

146     Evidence of testing and accuracy of speed-measuring devices, etc

(1)         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 Director, 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.

…

[5]      Rather, he was of the view that he was not challenging the accuracy of the equipment but its accuracy in the way that it was used.  I do not think that that is a distinction intended by Parliament in s 146(1).   Where Parliament provides for a procedure where evidence is given to the Court as to the testing of accuracy of any equipment the term accuracy has to be read in context.  It means that the equipment is accurate in conditions of use.   There is absolutely no point in equipment being accurate in ideal laboratory conditions but inaccurate on the road.

[6]      It does seem to me, therefore,  that  it  was  open  to  Mr  C    to  take advantage of s 146 and require the police to produce a certification that this machine, the radar device, is accurate in conditions of slope such as was present here.  This he has not done.  What Mr C   did was he sought to give an expert opinion to the Court as to the limitations of the radar device in the particular context of the slope that he was driving up at the time that he was recorded at 116.

[7]      The prosecuting sergeant objected to the admission of this evidence on the grounds that Mr C   had not qualified himself as an expert.     Mr C   pointed out that he had a science degree which included advanced level physics and argued that that was sufficient qualification.  The Court rejected that and found that they had no proof of him being an expert to give evidence.  They did not give any particular reasons but certainly having a science degree and familiarity with physics would not be sufficient on normal principles to be in a position to give an expert opinion on the testing and accuracy of a Stalker DSR radar device.   The law requires not only general expertise but proof of specific expertise directly pertaining to the critical opinion which is being proffered to the Court.

[8]      Accordingly,  the  decision  of  the  Justices  of  the  Peace  to  not  accept Mr C  ’s opinion as to inaccuracy was correct.   That being the case, viewed against the scheme of the Land Transport Act, they were entitled to proceed on the presumption that the equipment was accurately recording the speed of his car and accordingly enter the conviction.

[9]      I do not think, as it happens in this case, the grievances that I have referred to above had any bearing on the outcome.   The case always depended on not only

proving exactly the point at which the device was triggered to record the speed but also that it was inaccurate when recording speed from that particular point given the slope and that latter point required an expert opinion and/or a certificate produced following notice being given under s 146 of the Land Transport Act.

[10]     For these reasons the appeal fails and it is accordingly dismissed.

Solicitors:

Gresson Dorman, Timaru, for Respondent

cc: J S C  , 23 Guise Street, Temuka