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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 550
Decision Date: 28 March 2018

CaseChat Overview and Summary

Francisco Catalin Deliu appeals against his conviction for exceeding the speed limit on State Highway 16 in Auckland. Deliu was caught by Constable McCarthy, who was using a laser speed detection device. The conviction was initially struck out by the District Court, but leave to appeal was granted by Toogood J. The appeal now before the court concerns two issues: whether the evidence was improperly obtained due to the manner in which the constable operated the speed detection device, and whether there is a reasonable doubt as to whether the certificate of accuracy relates to the device used. The court held that the evidence was not improperly obtained, as the constable’s actions did not contravene the Police Instructions or breach Deliu's right to be free from unreasonable search and seizure. The court also found that the discrepancy in the serial number between the certificate of accuracy and the logbook does not raise a reasonable doubt as to the device used. The appeal against conviction is therefore dismissed.

In this case, the appellant, Francisco Catalin Deliu, was found guilty of speeding on State Highway 16 in Auckland. The issues raised on appeal were whether the evidence was improperly obtained due to the manner in which the speed detection device was operated and whether there was a reasonable doubt as to whether the certificate of accuracy related to the device used. The court held that the evidence was not improperly obtained, as the constable's actions did not contravene the Police Instructions or breach Deliu's right to be free from unreasonable search and seizure. Additionally, the court found that the discrepancy in the serial number did not raise a reasonable doubt as to the device used. The appeal against conviction was dismissed.

Orders