E v Police HC Christchurch CRI-2009-409-000037

[2009] NZHC 1837

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2009-409-000037

E

v

POLICE

Hearing:         24 June 2009

Appearances: J Black (for O Paulsen) for Appellant

D J Orchard for Respondent

Judgment:      24 June 2009

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      This  is  an  appeal  against  an  order  of  the  District  Court  finding  an infringement offence proved.

[2]      The appellant, Mr E  , was charged with a breach of 5.1(1) of the Road User Rules 2004, in that he drove a vehicle on the road at a speed exceeding 50 kilometres per hour, being the applicable speed limit.

[3]      After a defended hearing before two Justices of the Peace, the offence was found proven and Mr E   ordered to pay an infringement fee of $170, with Court costs.

[4]      At the hearing, it was common ground that Mr E   had reached a speed of

74 kilometres per hour as he travelled from Detroit Place, Christchurch, across the

E V POLICE HC CHCH CRI-2009-409-000037  24 June 2009

intersection of Moorhouse Avenue and into Deans Avenue.  The only matter in issue was whether he was in the 60 kmph speed zone of that area when the radar locked onto his speed, or whether he was in the 50 kmph speed zone.  It had been accepted by the officer who took the reading that the intersection of Moorhouse and Deans Avenues, and about 50 metres on either side of that avenue (in Deans Avenue and Detroit Place), is in fact a 60 kmph area.

[5]      Unfortunately, in their decision, the Justices wrongly found as a fact that all of Deans Avenue and Detroit Place is a 50 kmph area.   Having reached that conclusion, erroneously, the Justices did not then make any finding as to the precise location of the appellant’s vehicle when it was clocked.  Their only finding was that it was clocked after the intersection.

[6]       The police accept that the Justices’ finding was wrong and that accordingly the decision cannot stand.

[7]      Originally, in written submissions, counsel for the police had suggested the matter should be remitted back to the Justices for re-hearing.  However, on further reflection, counsel accept a more appropriate course would be simply to amend the charge and abate the infringement fee accordingly.   The appellant, Mr E  , has never disputed he was travelling at 74 kilometres per hour.  His gripe was that he was in a 60 kmph zone at the time, not a 50 kmph zone.

[8]      It is common ground that I have jurisdiction to amend the charge.

[9]      Accordingly,  I direct  that  the  charge is  to  be  amended  by  replacing  the reference to the 50 kmph zone with a 60 kmph zone.  That has the effect of reducing the infringement fee from $170 to $120.  The Court costs remain the same, at $35.

[10]     I therefore quash the decision imposing the $170 fee, and replace it with a fee of $120.

[11]     There will be no Court costs arising out of this appeal, but the Court costs of

$35, which are standard, will stand.

Solicitors:

Cavell Leitch Pringle & Boyle, Christchurch

Crown Solicitor, Christchurch