Deliu v Police

[2018] NZHC 550

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-285

[2018] NZHC 550

BETWEEN

FRANCISCO CATALIN DELIU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	26 March 2018
Appearances:	Appellant in person (by telephone) F M T Culliney for Respondent
Judgment:	28 March 2018

JUDGMENT OF LANG J

[on second appeal against conviction]

This judgment was delivered by me on 28 March 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

DELIU v NEW ZEALAND POLICE [2018] NZHC 550 [28 March 2018]

[1]                  Following a defended hearing in the District Court the Justices of the Peace found Mr Deliu guilty of an infringement offence alleging he drove a motor vehicle on a road at a speed in excess of 100 kilometres per hour.1 Judge Jelas then struck out Mr Deliu’s  application for leave to appeal after he failed to appear at a hearing on  24 July 2017.2 Mr Deliu now advances a second appeal against conviction pursuant to leave granted by Toogood J on 2 October 2017.3

Background

[2]                  The infringement notice was issued following an incident that occurred on the evening of 8 December 2016. On that date Constable McCarthy was parked in a marked patrol vehicle on the west bound onramp to  State Highway 16 (SH16) at    Te Atatu. The speed limit for motor vehicles using SH16 at that point is 100 kilometres per hour.

[3]                  At approximately 7.48 pm the constable observed a westbound motor vehicle travelling on SH16 at what he considered to be an excessive speed. He then activated a laser speed device and locked the device’s beam on the vehicle in question. The device showed the vehicle to be travelling at 125 kilometres per hour.

[4]                  The constable immediately activated his flashing lights and siren and pursued the vehicle until it stopped shortly before the Lincoln Road offramp. The constable then approached the vehicle and spoke to the driver, who gave his name as  Francisco Deliu. The driver also showed the constable his driving licence. The photograph on the licence corresponded with the person driving the vehicle.

[5]                  Constable McCarthy advised Mr Deliu that he had stopped him for speeding. Mr Deliu responded by saying he doubted that because he had a laser jammer. The constable then issued the infringement notice and Mr Deliu proceeded on his way.

1      New Zealand Police v Deliu DC Waitakere CRI 2017-090-1198, 16 June 2017.

2      New Zealand Police v Deliu [2017] NZDC 18787.

3      Deliu v New Zealand Police [2017] NZHC 2412.

Issues on appeal

[6]Mr Deliu has been granted leave to appeal in relation to two issues:

(a)Was the evidence improperly obtained because the constable operated the device in contravention of written police instructions?

(b)Did a discrepancy between the serial number of the device recorded in Constable McCarthy’s logbook and that recorded on the certificate of accuracy relied upon by the prosecution raise a reasonable doubt as to whether the certificate related to the device used by the constable to record the speed of Mr Deliu’s vehicle?

[7]                  Mr Deliu also advances a further argument based on an alleged breach of his right under s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA) to be free from unreasonable search and seizure. I propose to deal with this issue briefly because Toogood J did not grant Mr Deliu leave to appeal on this ground.

Issue 1: Was the evidence improperly obtained because the constable operated the laser detection device in a manner that contravened police guidelines?

[8]                  This issue arises because the Police Instructions (the Instructions) contain the following requirement in relation to the operation of speed enforcement equipment such as laser tracking devices:

All speed enforcement equipment must be operated in an overt manner. Hidden or camouflaged deployment must not be used.

[9]                  Mr Deliu contends Constable McCarthy breached these instructions because he did not operate the laser device in an overt manner. Instead, he operated it whilst his vehicle was parked in a position where it was effectively hidden from the view of motorists travelling in a westerly direction along SH16. Mr Deliu says it was not possible for the driver of a westbound vehicle to see the police car other than by looking in the rear vision mirror after passing the Te Atatu onramp. By that stage the speed detection equipment would already have locked onto any vehicle that was speeding.

[10]              The Justices of the Peace rejected this argument in the following passage from their decision:4

[6] It is our opinion that the police vehicle was not overtly hidden and that the evidence from Constable McCarthy is admissible and consequently there is a case to answer. Consequent to that we find the charge proven.

[11]Mr Deliu points out that the Instructions begin with the following summary:

Summary Introduction

Excessive speed is a major cause of road trauma, and an important factor in the severity of crashes. Enforcement of speed limits is an effective activity, due to its wide deterrent effect, to change road user driving behaviour.

Speed limits must be consistently enforced by appropriately trained Police employees, using approved and calibrated equipment to:

·reduce mean speeds and influence a reduction in road trauma

·ensure Police enforcement action is fair and transparent

·enable Police to recognise reasonable variations in speedometer accuracy across the national vehicle fleet

·provide motorists with a certainty of outcome should they drive at excessive speeds.

[12]              Mr Deliu contends the requirement for speed detection equipment to be operated in an overt manner is one of the methods by which the objectives of fairness and transparency are achieved. The use of hidden and camouflaged equipment prevents motorists who might be targeted by it from seeing the equipment before evidence is obtained that may later be used as the basis for a prosecution. Mr Deliu contends this is neither fair nor transparent.

[13]              I consider Mr Deliu is correct in saying that the requirement for speed detection equipment to be used in an open manner is to promote the objectives of both fairness and transparency. The use of hidden or camouflaged equipment defeats both purposes because it means motorists remain unaware that speed detection devices are in operation. Excessive speed can best be deterred if drivers of motor vehicles regularly

4      New Zealand Police v Deliu DC Waitakere CRI-2017-090-001198, 16 June 2017.

see police officers using speed detection equipment. Drivers also know speed detection equipment is sometimes located in positions that make it difficult for them to become aware of it until after detection has occurred. These factors mean motorists will appreciate they run a significant risk of detection if they choose to exceed the speed limit. This in turn assists to achieve the ultimate objective of reducing excessive speed.

[14]              I do not accept, however, that this extends to a requirement that the equipment be visible to motorists a reasonable distance before the device is able to gather evidence that they are speeding. That would be tantamount to a requirement that those who choose to exceed the speed limit should always have an opportunity to slow down before they face the risk of detection. That would not meet the overall objective of deterring excessive speed.

[15]              In the present case Constable McCarthy parked his patrol vehicle in plain view of all persons who cared to look at it. The fact that the drivers of westbound vehicles could not see the vehicle until after they had passed it, and then only by looking in the rear view mirror, does not mean it was hidden or that the constable operated the device covertly.

[16]              In addition, evidence may only be excluded under s 30(2) of the Evidence Act 2006 (the Act) where the Court is satisfied on the balance of probabilities it has been improperly obtained and exclusion is a proportionate response. Section 30(5) of the Act prescribes the circumstances in which evidence will be improperly obtained as follows:

30     Improperly obtained evidence

…

(5)For the purposes of this section, evidence is improperly obtained if it is obtained—

(a)     in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or

(b)      in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or

(c)     unfairly.

[17]              The Instructions do not have the status of an enactment or rule of law. As a result, any evidence obtained from a speed detection device will only fall within the definition of improperly obtained evidence if it was unfairly obtained in terms of     s 30(5)(c).

[18]              I see nothing unfair about the way in which the constable used the device in the present case. He obviously stationed his vehicle in a position that gave him an opportunity to detect westbound drivers who were speeding or otherwise endangering the safety of other road users. He also gave such persons little opportunity to slow down or desist from dangerous activity before being detected. Those factors do not make the constable’s actions unfair. Rather, such techniques deter drivers from speeding or otherwise endangering other road users because they increase the risk of detection.

Issue 2: Was the evidence improperly obtained because it breached Mr Deliu’s right to be free from unreasonable search and seizure?

[19]              I deal with this issue briefly because Mr Deliu did not obtain leave from Toogood J to argue it by way of second appeal.

[20]              Mr Deliu submits the use of the speed detection equipment to measure the speed of his vehicle amounted to a breach of his right under s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA) to be free from unreasonable search and seizure. He relies for this proposition on observations made in Hamed v R.5 In Hamed, the police had installed a camera on private property to film vehicles travelling down a rural road called Reid Road. In doing so they trespassed on the land on which they installed the camera.

[21]              The Chief Justice held that the surveillance breached the appellants’ rights under s 21 but concluded the evidence was nevertheless admissible after undertaking the balancing exercise required by s 30 of the Act.6 Blanchard J considered the

5      Hamed v R [2011] NZSC 101, [2012] 1 NZLR 305.

6      At [8], [78] and [81].

appellants had no reasonable expectation of privacy whilst using Reid Road and that surveillance of traffic on the road did not constitute a search.7 Tipping J considered the Reid Road surveillance constituted a search, but not an unreasonable search.8 He based this conclusion on the fact that “drivers on a public road have little expectation of privacy in respect of the fact of their doing so”.9 McGrath and Gault JJ did not express a view on the issue of whether the Reid Road surveillance constituted a breach of s 21.

[22]              In Lorigan v R, the Court of Appeal undertook a detailed consideration of the five judgments in Hamed.10 In that case the appellants had challenged the admissibility of film footage taken of the entrance to a residential address using cameras located in a neighbouring property with the consent of the owner of that property. The Court concluded there was no clear majority position in Hamed as to what constituted a search.11 In the following paragraph the Court concluded, however, that the test postulated by Blanchard J had support from a majority of the Court:12

[22]      We agree with Lang J that no clear majority position as to what constitutes a search emerges from Hamed v R itself. Ms Laracy’s concession means that it is not strictly necessary for us to reach a conclusion on this issue. But given the uncertainty as to the outcome of Hamed v R, it may assist if we express our view on the topic. We consider that the test (for assessing whether surveillance of a public place not involving any trespass by the police is a search) that has the support of the majority of the Supreme Court is that proposed by Blanchard J in Hamed v R. The test is whether the surveillance by the police involves state intrusion into reasonable expectations of privacy. That is similar to the test applied (in a different context admittedly) by McGrath J to determine whether police action amounted to a search in Ngan v R. And it is also broadly consistent with the test applied by the Chief Justice in Hamed v R, which involved assessing whether the privacy rights of those in the area under surveillance were breached. Although Blanchard J and the Chief Justice reached different results, the tests they applied were broadly the same.

[23]      Applying that test to the facts of the present case, it becomes immediately obvious that the use of the speed detection equipment did not amount to a search. Those who use this country’s roading network have no expectation of being free from

7 At [171].

8 At [224].

9 At [224].

10     Lorigan v R [2012] NZCA 264, (2012) 25 CRNZ 729.

11 At [22].

12     Lorigan v R, above n 10.

external surveillance. That is particularly so in metropolitan areas such as Auckland. Users of the Auckland motorway network know they will be subject to regular surveillance by both cameras (either fixed or mobile) and police officers in marked and unmarked patrol vehicles. They are also aware police officers routinely use a variety of devices to monitor the speed of vehicles travelling on the city’s streets. There is no expectation of privacy in the present context. It follows that Mr Deliu was not the subject of a search in terms of s 21 of the NZBORA.

[24]      For these reasons I do not accept the evidence obtained from the laser detection device was unfairly and thus improperly obtained. It was therefore admissible to prove the charge that Mr Deliu faced.

Issue 3: Did a discrepancy between the serial number of the device recorded in Constable McCarthy’s logbook and that recorded on the certificate of accuracy raise a reasonable doubt as to whether the certificate related to the device used by the constable to record the speed of Mr Deliu’s vehicle?

[25]      This issue arises because the prosecution adduced as an exhibit a certificate of accuracy under s 146 of the Land Transport Act 1998 (the Land Transport Act). Section 146 provides:

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 2012 (or any regulations made under that Act), the production of a certificate (or a document purporting to be a copy of the certificate) purporting to be signed by a constable or Police employee who is not a constable 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.

(2)Every document purporting to be a copy of a certificate issued under this section is, in the absence of proof to the contrary, to be presumed to be a true copy.

(3)Every certificate issued under this section is, in the absence of proof to the contrary, to be presumed to have been signed by a person duly authorised to sign it; and it is not necessary for any such certificate to show on its face that the person signing it was so authorised.

(4)This section applies to distance-measuring devices, speed-measuring devices, approved vehicle surveillance equipment, and tuning forks used to check such devices or equipment.

(5)The fact that any equipment or device to which this section applies was tested before or after the date of the alleged offence does not of itself affect the validity of any certificate given under this section in relation to the testing of that equipment or device. However, any testing must not be more than 12 months before the date of the alleged offence.

(6)In any proceedings where a certificate has been produced under this section, the court may, on application made not less than 14 days before the hearing of the charge concerned, and if satisfied that there is good cause to do so, set aside the certificate and require the accuracy of the equipment or device to be established by evidence other than the certificate.

[26]      The certificate of accuracy in the present case related to a laser detection device that had the model number LIDAR LR and the serial number 101453. The constable confirmed during cross-examination that in a logbook filled out on the day of the alleged offending he had recorded that he had used a LIDAR LR model device having the serial number LU101453. He explained that he assumed the letters “LU” stood for “Laser unit”, and that police officers regularly put those letters before the serial numbers of detection devices when they filled in their logbooks.

[27]During re-examination the following exchange occurred:

Q.Talking about the certificate of accuracy, we have regular arguments in the minor traffic Court about the discrepancy between the serial number missing two letters at the start, can you talk to us about the serial number on the certificate and the serial number on the device?

A.The serial number on the device says LU101453 and every laser that we use in the police has that LU before it, it’s that particular type of laser and the certificates’ issued [sic] by another party so I’m unsure why the LU is not there.

Q. But you do accept that the following six digits are the same on the certificate of accuracy as they are to the device that you are using?

A.       That’s correct.

[28]      Mr Deliu contends the discrepancy between the two model numbers is such that it raises a reasonable doubt as to whether the certificate of accuracy relates to the device the constable was using to record the speed at which Mr Deliu’s vehicle was travelling.

[29]      I do not consider this to be the case. The Court is entitled to have regard to all the evidence when considering whether the discrepancy raises a reasonable doubt regarding the device to which the certificate of accuracy relates. The certificate of accuracy relates to a LIDAR LR model device having the serial number 101453. The logbook relates to the same model of device having the same six digit serial number. I do not consider the fact that the constable added the letters “LU” raises a reasonable doubt because it would be a remarkable coincidence if there was another LIDAR LR device having the same six digit serial number. The explanation for the discrepancy appears to be that the police record the letters “LU” in relation to devices of this type when the entity responsible for producing certificates of accuracy does not.

[30]      Counsel for the police also referred me to Wells v Police, in which a constable had noted in his log book that a device, in that case a low tuning fork, had the serial number 124438 when the device used had the serial number 124433.13 As in this case, the discrepancy raised the issue of whether the certificate of accuracy applied to the unit that had been used. Laurenson J held that the “co-relating evidence on the Certificate of Accuracy and the Radar Log Book [were] sufficient to prove beyond reasonable doubt that the certificate does indeed relate to the unit”.14

[31]      I take the same approach. I therefore do not consider there is any merit in this ground of appeal.

Result

[32]The appeal against conviction is dismissed.

Lang J

Solicitors:

Crown Solicitor, Auckland Copy to Appellant

13     Wells v Police HC New Plymouth AP27/02, 2 August 2002.

14     At [2][a].