D v Police HC Napier CRI 2008-441-4

[2008] NZHC 844

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2008-441-4

BETWEEN  D

Appellant

ANDNEW ZEALAND POLICE Respondent

Judgment:      6 June 2008

(on the papers)

JUDGMENT OF HARRISON J

In accordance with R540(4) I direct that the Registrar endorse this judgment with the delivery time of

12 noon on 6 June 2008

SOLICITORS

Elvidge & Partners (Napier) for Respondent

(copy to: Ross D  )

D V POLICE HC NAP CRI 2008-441-4 6 June 2008

Introduction

[1]      Mr D   appeals against his conviction in the District Court at

Napier on a charge of driving at a speed exceeding 100 kilometres per hour.

[2]      The essence of Mr D  ’s appeal is that Justices of the Peace erred in failing to grant him a rehearing.  His grounds of appeal are without merit, and I am in no doubt that Mr D   has sought to manipulate and frustrate the hearing procedure in the District Court.   But ultimately, as the Crown accepts, his appeal must be allowed for procedural reasons.

Background

[3]      The police issued  an  infringement  notice to  Mr D   on  10 January

2007.   The notice alleged that he drove a motor vehicle on the Napier-Taupö Highway on 23 October 2006 at a speed exceeding 100 kilometres per hour.   His offending was detected by a speed camera.

[4]      Mr D   requested a hearing for the offence.  A preliminary hearing was scheduled for 1 March 2007.   Mr D  , who lives in Auckland, wrote to the Court on 26 February advising that he wished to plead not guilty but that he would not be able to attend on 1 March.  The proceeding was adjourned to 13 April for a defended hearing.

[5]      On the day before the fixture, that is on 12 April, Mr D   wrote to the Court.  He sought an adjournment.  He said that he was unwell.  The registry obliged by adjourning the fixture for a defended hearing on 12 June.

[6]      Then, in a repeat of his previous conduct, Mr D   wrote again to the Court on 11 June, the day prior to the fixture, to request a further adjournment. Again he relied on his ill health.

[7]      Mr D   did not appear when the proceeding was called on 12 June. Both the registry and the police had copies of his letter sent the previous day.  The

Justices of the Peace ordered that the original infringement fee of $120 should stand and imposed court costs of $30 without requiring the police to call evidence or prove their case.

[8]      Mr D   applied for a rehearing on 7 September 2007.   A fixture was allocated for 16 October but on 18 September he sought an adjournment.   On this occasion he said that he would be overseas on 16 October.  The registry then wrote to Mr D   requesting him to file an affidavit in support of his application together with a schedule of his availability.  By then the Court must have inferred that Mr D   was attempting to delay a hearing indefinitely.

[9]      Mr D   did not file an affidavit or appear when the proceeding was called  on  16 October.     Nevertheless,  the  Court  adjourned  the  application  for rehearing until 11 February 2008.  Mr D   filed an affidavit with the Court on

1 February.  He explained his previous applications for adjournment and also gave notice of the grounds of his substantive defence.  It was to the effect that the camera device used to detect his speed was not legally operational.

[10]     Mr D  ’s affidavit noted that it was filed ‘in support of my rehearing set down for the 11th  February 2007 and supporting evidence in respect of my defended hearing yet to be set down’.   However, he did not personally appear on

11 February.   The Justices dismissed his application for a rehearing.   Again they reinstated the infringement fee and awarded costs without requiring the prosecution to prove its case.  Subsequently Mr D   filed a notice of appeal.

Decision

[11]     As noted, the fixture allocated for the rehearing was 11 February 2008.  The

Justices’ decision on that day was as follows:

[1]      The matter of the charge against Mr Ross D  , having been granted an opportunity to be heard, he has not appeared (sic).

[2]      The previous infringement fine of $120 with Court costs of $30 is to stand and his application for a hearing is dismissed.

[12]     The Justices apparently inferred from Mr D  ’s absence that he did not wish to pursue his application for a rehearing.  The Justices’ jurisdiction to grant a rehearing is found in s 75 Summary Proceedings Act 1957.  Its nature is wide and discretionary, and includes a power, where the defendant does not appear, to restore the original conviction, sentence or order ‘if [the Court] thinks fit’: s 75(6).

[13]     However,  if  the  Justices  were  purporting  to  exercise  their  power  under s 75(6), they did not say so or give reasons.  Nor did they apparently consider their power to receive and consider Mr D  ’s affidavit as evidence ‘in proceedings for an offence … relating to the driving of motor vehicles …’ (s 144(1)(a) Summary Proceedings Act).  While they were not of course bound to take it into account, the Justices should at least have given reasons for not doing so.

[14]     A more fundamental problem has been identified by Mr Daniel Kerr for the Crown but not by Mr D  .   Mr D   had given notice to the District Court on 26 February 2007 that he intended to plead not guilty.  Once this plea was entered,  the  Court  was  bound  to  hear  evidence  to  formally  prove  the  offence: s 61(b)(ii) Summary Proceedings Act.  The Justices simply treated Mr D  ’s absence as an abandonment of his plea of not guilty.  This fact did not absolve the police from their obligation to prove the offence to the Court’s satisfaction given Mr D  ’s denial.

[15]     The appeal must be allowed accordingly.   I should add, though, that the defence which Mr D   now seeks to raise as forecast in his affidavit sworn on

1 February 2008 is untenable.  He relies on a statement in a pamphlet issued by the

New Zealand Police as follows:

The Calibrations Service of NZ Police subjects the camera devices to six- monthly accuracy checks.   This ISO 17025 accredited laboratory also measures them through the six-monthly Calibration Certification.

[16]     Mr D   has produced a copy of the certificate of accuracy issued by the New Zealand Police dated 21 February 2006 for the camera which photographed his vehicle on 23 October 2006.  He points out that the offending event occurred some eight months after the certificate was issued.   He says that the legal effect of the pamphlet is that a camera which has not been certified within that six monthly period

from  21 February  2006  (that  is,  before  21 August  2006)  is  not  an  accurate  or approved vehicle surveillance device.

[17]     Mr D  ’s argument is plainly misconceived.  The police are required to test the device for accuracy within 12 months before the date of the alleged offence: s 146(5) Land Transport Act 1998.  This camera was tested and its accuracy certified on 21 February 2006, about eight months before Mr D   allegedly infringed. The certificate was then legally valid and the statutory presumption remained on

23 October 2006 that the device was accurate.

[18]     A pamphlet issued by the police, advising that it subjected cameras to six monthly accuracy checks, is of informational benefit only.  It has no legal force or effect  whatsoever.    The  accuracy  of  the  device  must  be  determined  solely  by reference to s 146 Land Transport Act.

[19]     Mr D  ’s appeal is allowed.  The proceeding is remitted to the District Court to be reheard.  The Court must allocate a prompt fixture to hear the charge. Mr D   will be aware that the Court will not tolerate any further delays and that if he does not appear the hearing will proceed in his absence.  The police should

ensure that a copy of this decision is given to the presiding Justices.

Rhys Harrison J