Carver v Police

[2013] NZHC 2812

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-012-1229 [2013] NZHC 2812

BETWEEN  PAUL ERIC CARVER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   24 October 2013

Appearances:           Appellant in person

M J Grills for Respondent

Judgment:                24 October 2013

(ORAL) JUDGMENT OF LANG J [on appeal against conviction]

PAUL ERIC CARVER v NEW ZEALAND POLICE [2013] NZHC 2812 [24 October 2013]

[1]      At approximately midday on 6 February 2013, Mr Carver was the driver of a bus travelling north on State Highway 1 near Waihola to the south of Dunedin.  He went to overtake another vehicle and, in doing so, a speed detection device operated by a police officer in the vicinity recorded that his bus was travelling at 100 kilometres per hour.  The maximum speed the bus was permitted to travel at was 90 kilometres per hour.

[2]      The police officer stopped Mr Carver, and issued him with an infringement notice.    Mr  Carver  defended  the  charge,  but  in  an  oral  decision  delivered  on

28 August  2013  the  Justices  found  the  charge  proved.1      He  was  convicted  and

ordered to pay a fine of $30 and Court costs of $30.  Mr Carver now appeals to this

Court against the Justices’ decision.

Grounds of appeal

[3]      Mr Carver contends that the Justices ought to have accepted that he had a defence to the charge based on absence of fault.

[4]      Mr Carver gave evidence to the effect that he had been driving the bus in question for more than four years.  The speedometer in the bus had been overwritten by staff in the mechanical workshop.  As a result, the speeds recorded in the overwritten figures were different to those on the factory-made speedometer.  This was presumably done so as to ensure that the speedometer noted the travel of the bus correctly.   The photograph that Mr Carver produced in evidence shows that the speedometer was recalibrated by the staff of the workshop using GPS on 14 October

2009.

[5]      If the bus was to travel at 90 kilometres according to the overwritten figures, it would be travelling at approximately 105 kilometres per hour according to the figures on the factory-made speedometer.

[6]      Mr Carver said that in the four years that he had been driving that bus he had found that the overwritten figures to be accurate.   On 6 May 2013, however, he

1      Police v Carver DC Dunedin CRI-2013-012-001229, 28 August 2013.

believes that they must have been inaccurate because of the fact that the bus was recorded by the speed detection device as travelling at 100 kilometres per hour.  Mr Carver said that he believed he was travelling at around 95 kilometres per hour at the time the police officer activated the speed detection device.  He accepts, therefore, that he was travelling in excess of the speed limit, but says that this was necessary because he was in the midst of an overtaking manoeuvre.

[7]      Mr Carver believes that the bus must have been mechanically altered in some way shortly before 6  May 2013  so  as  to  render the overwritten  figures  on  the speedometer no longer accurate.   He believes that this may have been done, for example, by changing the width or tread of the tyres, or by changing the differential. Both of those alterations would have resulted in the bus travelling at a different speed to those recorded in the overwritten figures on the speedometer.

Decision

[8]      Given the fact that Mr Carver accepted that he knew he was travelling at approximately 96 kilometres per hour, conviction on the charge was inevitable.  It is likely, however, that Mr Carver was influenced in his decision to overtake by his reliance on the overwritten figures on the speedometer.  Since the date of the incident Mr Carver has ceased to be employed by the bus company that owns the bus in question.  Attempts by him since that date to obtain confirmation that the bus had been mechanically altered have been unsuccessful.  I do not hold that against either Mr Carver or his former employer.

[9]      Even if conviction was inevitable, however, I consider that the consequences of the conviction have proved to be disproportionate to the gravity of the offending. Mr Carver advised me that he received demerit points for other infringements incurred whilst acting in his duties as a bus driver for his former employer.  One of these was for operating a cellphone in circumstances where he needed to obtain urgent confirmation from his employer as to the whereabouts of another bus.  The present conviction means that he will incur demerit points that will automatically disqualify him from driving for a period of three months.  I consider that would be a

disproportionate consequence to the gravity of his offending on 6 May 2013.2    For that reason I am satisfied that the appeal should be allowed.

Result

[10]     The appeal is allowed.  Although the charge was made out on the evidence, I

quash the conviction and order that he be discharged without conviction pursuant to s 106 of the Sentencing Act 2002.

Lang J

Solicitors:

Crown Solicitor, Dunedin

Copy to: Appellant

2      In terms of s 107 of the Sentencing Act 2002.