Dallimore v Police HC Blenheim CRI 2003-406-8

[2004] NZHC 1024

IN THE HIGH COURT OF NEW ZEALAND                   CRI-2003-406-8 BLENHEIM REGISTRY

BETWEEN[    ] DALLIMORE

Appellant

AND  NEW ZEALAND POLICE

Respondent

Hearing:              18 February 2004

Appearances:      M W Newell for the Appellant

R G Marshall for the Respondent

Judgment:           18 February 2004

JUDGMENT OF FRANCE J

[1]        The appellant was found guilty after a defended hearing by two Justices of the Peace in the District Court in a decision delivered on 24 September 2003 on one charge of driving a motor vehicle at excess speed. The appellant was ordered to pay

$230 plus $30 in Court costs.

[2]        The appellant appeals against conviction and sentence. The appellant represented himself at the hearing before the Justices of the Peace but was represented by counsel at the appeal.

Facts

[3]        On 19 April 2003, the appellant’s vehicle was recorded as travelling at 127kph by a police officer operating a Stalker speed detection unit. The appellant was driving when the vehicle was stopped. There was one passenger in his car.

Decision of the Justices of the Peace

[4]        The Justices referred to the police officer’s evidence of the incident, and noted the four exhibits produced by the prosecution to demonstrate the accuracy of the radar equipment, namely, a certificate of proficiency for Constable Guthrie, a radar logbook, certificate of accuracy and certificate of accuracy for the speedometer and odometer.

[5]        The Justices also noted the appellant’s claim that one of the exhibits failed to meet evidential requirements. But, they said they had heard nothing to the contrary. The Justices concluded that the charge was proven.

Grounds of appeal

[6]        There are two grounds of appeal. The first is that there was a failure to comply with evidential requirements in relation to the operation of the Stalker device. This is a reference to the requirements in the Police Operational Manual (DUT244).

[7]        Second, the appeal is based on the manner in which the prosecution was conducted with particular reference to the fact that the appellant was unrepresented at the hearing and the issue about compliance with the Manual.

[8]        As to the first ground, the appellant relied in written submissions on the requirements in operating the Stalker device set out in the Police Manual. In particular, reference was made to the fact that the Manual says that at the beginning of each shift, pre-deployment tests are to be conducted by an approved speed enforcement operator and the results recorded in a speed device logbook.

[9]        Here, the Court had before it the speed device logbook in relation to the day in question together with a certificate of accuracy and a certificate of accuracy for the patrol vehicle. However, Constable Guthrie, who gave evidence in Court, accepted that he had not completed the pre-deployment test, but said that had been

done  by  another  constable.    Further, he accepted that the page from the radar logbook was completed by the other officer, who was not called to give evidence.

[10]      Accordingly, the appellant’s submission was that the evidence in relation to the completion of the pre-deployment checks is hearsay and with no certificate of proficiency relating to the other officer there was no evidence before the Court that the other officer was competent. The appellant also said that the requirements of the Evidence Amendment Act (No. 2) 1980 were not met and so the evidence in issue is inadmissible hearsay.

[11]The Crown’s written submissions concluded the evidence was hearsay.

[12]      Counsels’ attention was then drawn to Jaques v Police (High Court Wellington, AP 105/03, 23 July 2003, Goddard J); Wilson v Police (High Court Auckland, A 249/00, 28 September 2001, Chambers J); and to Balani v Police (High Court Christchurch, AP 19/03, 28 July 2003, William Young J).

[13]      Having considered those decisions, counsel for the appellant acknowledged at the hearing of this matter that these decisions were applicable and affected the appeal. Mr Newell also said that if he had been aware of these decisions the appeal might not have been pursued. The second ground of appeal, he said, stood and fell with the first ground.

Discussion

[14]      As I read the decisions referred to above, and as now accepted by both counsel, their effect is that there is no legal requirement for testing to be carried out at the start of each shift (see Jaques, above, para [14] with reference to Wilson, above; and Balani, above, para [17]). This appeal was premised on the requirements in the Manual being decisive. The authorities suggest that is not so.

[15]      What does have to be proved is set out by Gendall J in Parker v Police (High Court Palmerston North, AP 15/97, 5 June 1997) as follows:

“The crucial element which a prosecution must prove is the accuracy of the [radar unit] and the speed reading it produced, when competently operated at the time and in the place in question.” (p 3)

[16]      Here, there is no challenge to the accuracy of the device. That is not surprising as a certificate of accuracy issued within 12 months of the offence is sufficient to prove the accuracy of the device and its reading on the day in question in the absence of evidence to the contrary. Under s 146 of the Land Transport Act 1998, the certificate of accuracy is proof that the radar was accurate on the date of the offence (provided it was issued within the last 12 months (s 146(5)).

[17]Here, as the Justices found, no evidence to the contrary has been raised.

[18]      The only other possible issue then is competency to operate the device. A failure to produce a certificate of proficiency is not fatal to a prosecution: Nottingham v Police (High Court Auckland, A 91/03, 3 April 2003, Paterson J). In any event, in this case, Constable Guthrie operated the radar and his competency to do so was not challenged. The Court was entitled to infer, based on his certification and testimony, that it was properly operated in this respect.

[19]The first ground of appeal therefore fails and, with it, the second ground.

Result

[20]For these reasons the appeal is accordingly dismissed.

E France J

Delivered at 5.02pm on 18^th February 2004.

Solicitors:

Farry & Co, Dunedin, for the Appellant Crown Solicitor, Nelson, for the Respondent