Chatha v The Queen

[2004] NZCA 230

IN THE COURT OF APPEAL OF NEW ZEALAND

CA133/04

THE QUEEN

v

ARSHAD MAHMOOD CHATHA

Hearing:20 September 2004

Coram:Anderson P
McGrath J
Glazebrook J

Appearances:  Applicant in person

M F Laracy for Crown

Judgment:20 September 2004 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1]       This is an application for special leave to appeal brought pursuant to s 144(3) of the Summary Proceedings Act 1957 which provides as follows:

(3)     Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[2]       The applicant was convicted on summary trial on one count of exceeding the speed limit.  The evidence given by a Police Officer was that he was using a Stalker radar device on State Highway 1 north of Wellington, which had a speed limit of 100 km/h.  He checked the speed of a vehicle which he said was driven by the applicant and found, according to the “read-out”, that the offending vehicle was travelling at 111 km/h.  The Stalker device does not keep a permanent record in the sense that there is no print-out or some other similar process, but the display is capable of being locked on to a speed and thereby indicating in any particular case, until next used, what the speed of a vehicle was.

[3]       The applicant appealed unsuccessfully to the High Court which later dismissed an application to it to appeal to this Court.  He therefore applies to this Court under the Summary Proceedings Act provisions as aforesaid. 

[4]       The applicant submits that the following questions are raised by the appeal and that special leave ought be granted in respect of them.  First, whether the Police had an obligation to invite the applicant to show him the speed which the device had recorded.  Second, whether the Police Officer’s oral evidence was enough to prove the case without any proof of speed from the device and without any disclosure from the device.  Third, whether it is fair to the applicant to charge him without any such proof or disclosure from the device whether charging him engages the equality of arms principle.

[5]       The Police Officer’s evidence was that if he had been asked by the applicant to show the locked speed on the Stalker device he would have had no difficulty in complying with that request but no such request was made.  The applicant challenged this aspect of the evidence and it may be that the nature of Mr Chatha’s request for proof was misunderstood by the Police Officer.  In any event, despite our reading of the submissions and listening, we hope with appropriate care, to the oral submissions, there is no legal obligation established even on an arguable basis that evidence of a reading by such a device is inadmissible unless the offender or alleged offender has been invited to view a read-out of it. 

[6]       The first question is so obviously inviting a negative answer as not to warrant further consideration by this Court.  Similarly, the second question so obviously warrants an affirmative answer.  As for the third question, there may be cases where issues of fairness are raised but that will be fact dependent and not a question of law. 

[7]       In all the circumstances there is no proper basis for grant of special leave and the application is dismissed.

Solicitors:
Crown Law Office, Wellington