D v Police HC Wellington CIV-2008-454-15

[2009] NZHC 404

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2008-454-15

D

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 March 2009

Counsel:         N Carson for appellant

J Murdoch for respondent

Judgment:      3 April 2009

RESERVED JUDGMENT OF DOBSON J

Introduction

[1]      The appellant (Mr D  ) was convicted after a defended hearing on one count of driving in excess of a temporary speed limit, contrary to s 40 of the Land Transport  Act  1998  and  r 4  of  the  Land  Transport  (Offences  and  Penalties) Regulations 1999.  He was ordered to pay the infringement fee of $400 (per cl 5.1 of the Land Transport (Road User) Rule 2004) and Court costs of $30.  Mr D  , who appeared for himself at the hearing before Justices of the Peace in the District

Court at Feilding, now appeals against his conviction.

D V NEW ZEALAND POLICE  HC WN CIV-2008-454-15 3 April 2009

Background

[2]      On Friday 28 July 2006, Mr D   was travelling north on State Highway One in Carnarvon in the company of his partner, young daughter and a family friend. At the time, the area had a temporary speed limit of 50 kilometres per hour due to road works.

[3]      Constable Sandbrook was patrolling in the area.   His evidence was that he saw two vehicles approaching him from behind, a white van and Mr D  ’s vehicle.  He checked the speed at 90 kilometres per hour on his Stalker Dual radar unit.  It seems that this reading related to the van’s speed but Constable Sandbrook’s evidence was that “the defendant was fast catching up with the van and I was of the belief he was likely to try to pass it”.  The Stalker Dual radar unit can read the speed of two vehicles.  Constable Sandbrook said that the radar did pick up two vehicles and that the speeds were 90 kilometres per hour and “a higher speed” that he could not actually recall.  As a result, Mr D   was charged with travelling at the lower of the two speeds, namely 90 kilometres per hour.  Constable Sandbrook said that this was normal practice where there are two readings above the speed limit and it is not possible to identify which reading relates to which of two vehicles.

[4]      Mr D   claimed that shortly before he was directed to pull over, he had been parked on the side of the road and had just pulled out behind the van.   He claimed that he did not see the temporary speed signs.  His evidence was to the effect that he was only gaining on the van because the van was slowing quickly at the time (presumably  because  of  the  speed  restriction  or  because  that  driver  had  been signalled to by the constable).  Constable Sandbrook denied this.

[5]      Constable Sandbrook acknowledged that there was road-working machinery to the rear of his vehicle but denied that it would have obscured his vision of the van and Mr D  ’s vehicle.  He also said that he was stationed 600 metres inside the

50 kilometres per hour zone.  The radar unit reads from 300 metres away.

[6]      Constable Sandbrook stopped both vehicles.   Constable Sandbrook  asked

Mr D   what the speed limit was and he replied “100 kilometres per hour I

suppose”.   Constable Sandbrook said that he informed Mr D   that it was a

50 kilometres per hour speed area and that he was going at least 90 kilometres per hour because that was the speed of the van in front, and he was not only keeping up with it but gaining on it.  Mr D   claimed that Constable Sandbrook refused to let him see the radar reading.   Constable Sandbrook could not recall in evidence whether Mr D   had asked to see the radar reading or whether he had offered to show it to him.  He accepted that it was good practice to offer a view of the device, and said that he usually does this.

[7]      Mr D   claimed to have watched Constable Sandbrook for a period afterwards.  Mr D   said that Constable Sandbrook “remained outside of and well to the front of his vehicle at all times”, that he pulled over another two vehicles travelling at the head of a line of traffic and that “there was no way in which he could  have  clocked  the  speed  of  more  than  one  vehicle”.    Mr  D    said Constable Sandbrook’s method of operation was “random, improper and unacceptable”.

Evidence and argument at the District Court hearing

[8]      As well as giving evidence himself, Mr D   sought to produce a witness statement from a Ms Scullion (Mr D  ’s partner).   He also sought to admit email communications from the product manager of the manufacturer of the radar unit in the United States of America (Mr Hocker) as to the differences between the Stalker DSR and Stalker Dual units.   Although each of these items was formally produced  as  an  exhibit,  the  Justices  of  the  Peace  endorsed  on  the  foot  of Ms Scullion’s statement “Not admitted as evidence”, and it appears from their short oral  judgment  that  they  did  not  have  regard  to  the  email  communication  from Mr Hocker.

[9]      Constable Sandbrook presented a Certificate of Accuracy for a Stalker DSR unit, serial number 7689.  The constable’s evidence was that “DSR” stands for “Dual Stalker Radar”.  However, on a radar log book entry for the day, on a printed form providing four types of device, ‘Dual’ was circled instead of ‘DSR’.   The serial number  DS7689  was  specified  on  that  form,  which  corresponds  with  the  serial

number on the Certificate of Accuracy.  In cross-examination it was suggested that the units were different.   Constable Sandbrook’s response was that the certificates produced to the Court belonged to the unit that was in his car that day.  The Court indicated in the course of Mr D  ’s cross-examination of the constable that it accepted his sworn evidence to this effect.

[10]     Mr D   alleged that there had not been full and open disclosure by the Constable – that he had requested further information from the Police which had not been provided.

[11]     The  Justices  noted  that  the  Court  could  not  be  sure  which  of  the  two evidential radar unit readings belonged to Mr D  ’s vehicle.   However, they held that this was of little consequence as the drivers of both vehicles were issued with infringement notices for the lower speed of 90 kilometres per hour.

[12]     The Justices noted the various other issues raised by Mr D  , including:

•    the identification of the radar unit and certificates;

•    the machinery on site;

•    the  method  of  operation  of  the  radar  unit  (ie  whether  Constable

Sandbrook had taken readings from inside or outside his car); and

•    a breakdown of communication in dealing with the request for disclosure. [13]   On the latter point, the Justices noted that there had been a breakdown in

communication and that the Police should have responded to Mr D  ’s request for information.   However, they held that none of these issues had any material bearing on the main issue.

[14]     Mr D   raised a number of points in written submissions on the appeal, and Mr Carson expanded on these at the hearing of the appeal.  It was argued that the District Court erred in:

•Failing to  adjourn or dismiss the charges  when  advised  that  information requested from the Police was not provided in a proper and timely fashion, even though it was critical to preparing a full defence.

•    Holding that the ‘witness statements’ were inadmissible.

•Ignoring evidence that the Stalker DSR and Stalker Dual radar units were not identical  and  were  two  different  units,  and  accepting  a  Certificate  of Accuracy that indicated calibration in accordance with the Land Transport Act 1998 for a model of radar device that was different to that which the constable testified was used.

•    Admitting as evidence a Police log book entry that was not sworn or signed.

•Taking  no  cognisance  of  the  fact  that  speeding  offence  charges  were dismissed in other Courts where it was shown that the Police could not or would not produce evidence of the alleged speed as recorded, as was the case in this instance.

•Failing to require the Crown to meet its burden of proof and finding facts in favour  of  the  State  that  were  wholly  unsupported  by  the  evidence  or testimony presented.

•Concluding that none of the points raised by Mr D   had any material bearing on the main issue.

[15]     Section  119  of  the  Summary  Proceedings  Act  1957  provides  that  such appeals are to be by way of rehearing.   This requires the Court to come to an independent conclusion on the outcome, and there is no presumptive level of deference to the District Court.  This principle was affirmed by the Supreme Court in Austin, Nichols and Co Inc v Stichting Lodestar [2007] NZSC 103; (2007) 18 PRNZ

768.   Although Austin, Nichols was a civil case, the approach described is nevertheless relevant: see Hughes v New Zealand Police HC WN CRI-2007-485-

000155 18 March 2008 Gendall J at [33] and [34], not disturbed on appeal: R v

Hughes [2008] NZCA 546 at [66]; Greenland v New Zealand Police HC HAM CIV-

2008-419-000092 5 February 2009 Heath J at [28].

[16]     The  general  principle  will  be  subject  to  exceptions  and,  in  most  cases, superior Courts will recognise the advantage inferior Courts have in assessing the credibility of witnesses first-hand.  Thus, in Kelly v New Zealand Police HC WHA AP41/01 23 August 2002, Heath J stated at [21]:

Anyone who has had any involvement with the trial process recognises that findings of credibility turn as much on the demeanour of witnesses and the impressions made by them as the actual words they utter.  Impressions of the evidence are gathered by a Judge during the course of a trial by a process akin to osmosis.   The written words contained in the formal Notes of Evidence represent a body into which the atmosphere and human dynamics of the trial process breathe life.   This is why findings of credibility, even where extensive Notes of Evidence are available, will rarely be overturned on appeal. …

Judges who sit on appeal simply do not enjoy the advantages possessed by a trial judge who sees and hears the witnesses.  In those circumstances, it is entirely appropriate that appellate judges should defer to a trial judge's findings of credibility.

[17]    In Austin, Nichols, the Supreme Court recognised the importance of the opportunity to assess credibility, when credibility is a material factor – see paragraph [5].  See also Hughes v New Zealand Police at [35].  Here, the Court accepted the constable’s evidence – finding it “robust and convincing”.

[18]     I  will  return  to  consider  the  extent  of  any  prejudice  from  inadequate disclosure, as raised in the first ground of appeal.

[19]     As to ‘witness statements’ treated as inadmissible, the only document in that form   is   a   highly   supportive   statement   from   Ms   Scullion,   consistent   with Mr D  ’s version of events.  However, in the absence of her availability to be tested under cross-examination, it is entirely appropriate, and a conventional application of the law of evidence, that it be excluded.  Mr Carson’s gloss on this point is that, as a lay litigant, the Court owed some obligation to advise Mr D   that, on the unavailability of Ms Scullion, it was appropriate to apply for an adjournment of the hearing until she was available.  However, that is not a realistic expectation.   The statement, in its entirely unsworn form, and tendered in circumstances where its content could not be challenged, was inarguably inadmissible.  This ground of appeal has no validity.

[20]     The third and fourth grounds raised go to complementary aspects of a single challenge to the adequacy of the Police evidence.  Section 146 of the Land Transport Act 1998 is a provision intended to confine the scope of challenges that might be made  to  the  accuracy of  speed-measuring  devices.    Section  146(1)  provides  as follows:

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 Agency, 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.

[21]     Subsequent subsections provide for presumed authenticity of copies of such certificates, that they will be effective under the section to reflect testing up to

12 months before the date of the alleged offence, and more general presumptions as to the authority of those signing such certificates.

[22]     Here, the Certificate of Accuracy in respect of a Stalker DSR device, serial number 7689, was dated 26 March 2006, some four months before the date of the alleged offence.  In addition to the constable’s oral evidence linking the certificate to the device used, he produced the radar log book entry that I have described above. That entry had provision for signature by the constable and completion of his name at the foot of it, but those details were blank.  Although the serial numbers were the same in the certificate and the log book entry, confirmation by the constable that the device referred to in the log book is a “dual” means that the certificate specified the wrong type of device.

[23]     The issue is whether the Justices of the Peace ought to have recognised a reasonable doubt that the description in the certificate referring to a different type of device gave rise to any reasonable doubt that the Certificate of Accuracy was sufficient for the purposes of s 146 of the Act.  I am a little troubled that the Justices of the Peace expressed themselves satisfied on this point before hearing any evidence Mr D   might have called on the effect of the certificate misdescribing the type of device, or hearing any argument he may have wished to raise on the effect of the misdescription.  However, I am satisfied that this does not constitute a material error on their part.  It was obviously open to them, as one aspect of the assessment of the constable’s credibility, to treat the details as completed by him in the log book as sufficient to relate the device used to that for which the Certificate of Accuracy was provided.  It seems extremely unlikely that any material argument could be raised, and none of the evidence Mr D   attempted to adduce could realistically have changed the view the Justices took during the course of the constable’s evidence.

[24]     Another concern raised by Mr Carson notionally related to the rejection of the email from Mr Hocker.  However, in substance the point relates more to the onus on the Police to establish the accuracy of the measurement of Mr D  ’s speed. In that email exchange, Mr D   had asked whether, in a situation where two or more vehicles are following each other in a single line and in close proximity, the device   could   only   accurately   determine   the   speed   of   the   leading   vehicle.

Mr Hocker’s qualified response was that this proposition was incorrect, so that there were means by which an operator could identify readings for two vehicles.  Even had the Justices of the Peace been prepared to treat Mr Hocker’s email in response to the question from Mr D   as an admissible hearsay statement, then it hardly raised a  reasonable  doubt  as  to  the  accuracy  of  the  record  of  the  speed  at  which Mr D   was travelling, given the overall credibility attributed to the constable’s evidence.

[25]     The fifth ground depended on an internet search reproducing a summary of a

2005 newspaper article which had suggested that the failure by an  enforcement officer to produce the reading of the speed on which a charge of excess speed depended might amount to  a  complete  defence.    That  is  not  a  proposition  that Mr D   advanced, supported by any authority.  The Justices of the Peace were perfectly entitled to reject an informal and précised summary of a newspaper report of  comments  arising  out  of  other  proceedings  as  inadequate  to  impose  some minimum standard of proof of the speed at which the vehicle was travelling.

[26]     Grounds six and seven are conclusory ones, suggesting there was no basis for the Justices of the Peace to prefer the version of events given in evidence by Constable Sandbrook, when compared with the evidence given by Mr D  .  At that level of abstraction, the points are not helpful to the appeal, and Mr Carson’s argument was not able to persuade me that the Justices’ finding was perverse in the sense of being unsupportable by the evidence heard at the hearing.

[27]     Reverting  then  to  the  criticism  of  inadequate  disclosure.    Mr D   complained of the lateness of getting the radar log book excerpt, and the failure to be provided with the details of the driver of the white van.  This matter is to be assessed by questioning whether any inadequacy in disclosure may have led to a material prejudice in the conduct of the defence to the charge.  The fact that Mr D   was acting for himself as a lay litigant has some bearing on that evaluation of prejudice.

[28]     Having found the inconsistencies introduced by the radar log book to be of a type that the Justices of the Peace were entitled to rationalise as they did, I am not

prepared to treat that aspect of tardy disclosure as having material bearing on the appeal.

[29]     Mr Carson did not initially identify any specific prejudice arising from the Police refusal to provide details of the driver of the white van.   Ms Murdoch submitted that the refusal by the Police to provide that detail was justified because of the requirement to respect the privacy of that other driver.  Generally, the Police now have an obligation to provide disclosure to the defence of matters including the name and address of any person interviewed who could give material evidence, where the prosecution does not intend calling that person: New Zealand Police v Nimmo [1999]

3 NZLR 343, 346. As this was a concern I raised during the course of argument, I do not criticise Ms Murdoch for not having detailed submissions on the assessment to be undertaken in balancing the rights of that other driver to privacy, contrasted with the public interest in having prosecutions under the Land Transport Act conducted fairly to all participants. However, for the purposes of this analysis I treat those details as information to which Mr D was entitled.

[30]     The concern to protect the privacy of the driver does not seem to me to be materially different merely because that driver would be known to Mr D   as a person also charged in respect of her driving conduct on that day, when compared to the position of a witness, interviewed by Police because of their presence at the scene of an alleged crime, but not to be used by the Police as their own witness.

[31]     The Official Information Act 1982 and Privacy Act 1993 overlie the common law duty of disclosure.   As stated by s 6 of the Privacy Act, information privacy principle 11 provides a general prohibition against the disclosure of personal information about one person to another person unless, as relevant, the agency holding the information reasonably believes that non-compliance with the principle is  necessary  “[f]or  the  conduct  of  proceedings  before  any  court  or  tribunal” (principle 11(e)(iv)).  Moreover, under s 7, nothing in principle 11 derogates from any provision in any other Act that regulates the manner in which personal information may be obtained or made available.  Information held by the Police is also subject to the Official Information Act.  Generally, official information is to be disclosed on request unless there is good reason for withholding it: s 5.  In situations

where withholding official information is necessary to protect the privacy of natural persons, there is good reason to withhold it unless, in the particular circumstances, this is outweighed by other considerations which render it desirable, in the public interest, to make that information available: s 9.  The public interest in the conduct of fair  trials  may  in  appropriate  circumstances  require  the  disclosure  of  such information.

[32]     The relationship between the common law duty and privacy principles was at issue in R v Parsons (1995) 13 CRNZ 192.  In that case, the prosecution had made available  to  the  defence  the  Police  job  sheets  and  interview  notes  relating  to enquiries from 395 people who were not giving evidence for the Crown at the trial. This information had the names and addresses of the people blacked out.   The prosecution’s intent was to provide the names and addresses of these people to the defence if and when the defence wanted to contact anyone.   This was said to be because of the public interest in encouraging people to talk to the Police and a “risk of innocent persons who have very little to do with the case against the accused being contacted by persons with whom they would rather not associate or hear from” (at 195).   It was argued that the common law duty of disclosure was, effectively, ameliorated by the Privacy Act.   The Court disagreed.   Hammond J held that the Police were required to provide the names and addresses of all 395 people, stating at

196:

…the principle on  which [counsel  for  the  Police] stands is that  already referred to in the Privacy Act.   Such expressly recognises that personal information can be disclosed when such is “necessary … for the conduct of proceedings before any Court … that have been commenced”.  The conduct of these proceedings — based on the principles expressly laid down by the Court of Appeal in Mason [R v Mason [1976] 2 NZLR 122 (CA)] and Pearce [Pearce v Thompson (1988) 3 CRNZ 268, also reported as Commissioner  of  Police  v  Ombudsman  [1988] 1 NZLR 385 (CA)] — requires that the attention of the defence be drawn to witnesses the Crown has interviewed but does not propose calling.

[33]     It just might be that the driver of the other vehicle recalled the circumstances in which she and Mr D   were pulled over by Constable Sandbrook, that she concurred with Mr D  ’s recollection in respects where that conflicted with the constable’s recollection, and therefore could have caused the Justices of the Peace to

re-evaluate the relative credibility of the constable’s evidence, where challenged by not one but two witnesses.

[34]     However, in the end, I was persuaded by Ms Murdoch that such a concern “simply  involved  too  many  ‘ifs’”.    The  disclosure  given  to  Mr D    was inadequate.  There is no suggestion it was deliberately obstructive on the part of the Police, but conceptually at least it did impair the preparation of his defence to the charge.   The concern I have entertained was not among those addressed for the appellant.  When I raised this theoretical concern with Mr Carson, he was not able to give it any practical weight, and was inclined to accept that it was more conceptual than real.   Accordingly, the slender prospect that it would have made a material difference is not sufficient to warrant recognising it as a sufficient ground for appeal.

[35]     Accordingly, none of the grounds of appeal can succeed, and the appeal is dismissed.

Dobson J

Solicitors:

Crown Solicitor, Wellington for respondent