Ellis v Police

[2013] NZHC 1803

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-34 [2013] NZHC 1803

BETWEEN  CHRISTOPHER JOHN ELLIS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   16 July 2013

Appearances:           Appellant in person

M G Wilkinson for Respondent

Judgment:                17 July 2013

JUDGMENT OF GODDARD J

This judgment was delivered by me on 17 July 2013 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Crown Solicitors, Wellington

Copy To:       Appellant

ELLIS v POLICE [2013] NZHC 1803 [17 July 2013]

[1]      On 24 April 2013, following a defended hearing in the District Court before Justices of the Peace, Mr Ellis was found to have infringed a speed limit of 50 kph on Awarua  Street,  Porirua,  on  30  November  2012,  and  was  ordered  to  pay an infringement fee of $30 plus court costs of $132.89.

[2]      At  the  defended  hearing  before  the  Justices,  the  sole  witness  for  the prosecution  was  a  traffic  camera  operator  employed  by New  Zealand  Police  at Wellington.  The witness, Mr Covell, has been a traffic camera operator for a number of years and is trained and certified to use the approved vehicle surveillance equipment:  viz,  a  Redflex  radarcam  integrated  camera  and  camera  unit.    His evidence at the hearing was that this equipment is approved vehicle surveillance equipment pursuant to the Transport (Approved Vehicle Surveillance Equipment) Notice (No 2) 2008 and that at the time he used the unit it was certified as accurate.

[3]      Whilst  deploying  the  unit  in  the  rear  of  an  unmarked  police  vehicle  on Awarua Street on 30 November 2012, Mr Covell said he deployed it in accordance with the Speed Camera Deployment Standard, being the standard for such deployments.  He made an appropriate Deployment Register entry to that effect.

[4]      During deployment a photograph was taken with an Image Control Number of ICN 61955009.  The image captured was of Mr Ellis’s motor vehicle travelling at a speed of 56 kph at 8.58 am and photograph printed of the image (and an enlargement of the image) were produced as exhibits.

[5]      It is clear from the notes of evidence taken at the defended hearing that there was no contest to the above matters.   Indeed this was conceded by Mr Ellis in a written submission filed in advance of the defended hearing, where he set out the following facts as accepted:

(a)       That the surveillance vehicle was lawfully positioned;

(b)That the equipment used to capture the image was approved vehicle surveillance equipment;

(c)       That  the  approved  vehicle  surveillance  equipment  was  properly calibrated and deployed; and

(d)That  the  operator  was  fully  trained  and  properly  certificated  in relation to operating the approved vehicle surveillance equipment.

[6]      At the defended hearing Mr Ellis cross-examined Mr Covell but did not give evidence himself or call any evidence on his behalf.

[7]      His challenge was to the veracity and mode of production of the photographs produced by the prosecution.   This was on the basis that the Redflex radarcam captures images which are then stored on digital data files.   These are only transformed into hard copy photographs when, for example, an alleged infringement is to be defended.  The creation of the photograph for Mr Ellis’s defended hearing had been carried out by another (unknown personnel at the Police Infringement Bureau) and not by Mr Covell, although he had produced the photograph and the enlargement as evidence in the Court.

[8]      During his cross-examination of Mr Covell, Mr Ellis referred a defence photograph to him which he had brought to Court and which depicted the same vehicle with a similar notation across the top of the photograph, with the exception that the speed recorded was described as 30 kph.   The photograph was not put forward as an image that had been captured on a Reflex radarcam.  It was referred to by Mr Ellis for two other reasons: to demonstrate that the information  on such photographs can be digitally manipulated; and as a document ‘purporting’ to have been taken by a Redflex radarcam and thus a document constituting sufficient evidence under s 145(2) Land Transport Act 1998, in the absence of proof to the contrary, of the speed described in the caption to the photograph.   It is not clear whether this photograph was ever in fact formally produced through Mr Covell, as the Court record does not disclose that.   However, the Crown accepts that for the purposes  of  this  appeal  the  photograph  can  be  taken  as  having  been  produced through Mr Covell.

[9]      The  sole  issue  for  the  Justices  was  whether,  in  accordance  with  the requirements of ss 145 and 146 Land Transport Act, the prosecution had proved the offence as charged.

[10]     Giving  their  decision,  the  Justices  of  the  Peace  noted  that  Mr  Ellis  had produced a photograph showing the same or similar information to that contained in the prosecution photograph, which he did not purport to be from a speed camera, but which demonstrated that the information on such photos could be digitally manipulated.  Referring to s 145 of the Land Transport Act 1998 and in particular subsection (2), the Justices found that Mr Ellis had not however produced any proof contrary to that established by the prosecution and therefore the infringement was proved beyond reasonable doubt.  The Justices also noted that Mr Ellis questioned the appropriateness of s 145 as circumventing the normal process for producing photographs for other documentary evidence required under the Evidence Act 2006 but observed that the Court was not in a position to question the motive behind the operative statutory requirements in s 145.

Relevant Legislation

[11]     The provisions of the Land Transport Act governing the situation are ss 145 and 146:

145      Evidence of approved vehicle surveillance equipment

(1)       In proceedings for a moving vehicle offence, an image produced by means of an exposure taken by approved vehicle surveillance equipment and showing or recording a motor vehicle on a road, the speed of the vehicle, the location of the vehicle, the colour or form of a traffic control device, the fact that a toll has not been paid in respect of the vehicle, and the date and time when the image was taken, or showing or recording any of those things, is, in the absence of proof to the contrary, sufficient evidence of that fact or event.

(2)       The production in proceedings for a moving vehicle offence of an image purporting to be an image referred to in subsection (1) is, in the absence of proof to the contrary, sufficient evidence that the image was produced by means of an exposure taken by approved vehicle surveillance equipment.

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 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.

(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.

The appeal

[12]     On appeal Mr Ellis argued that Mr Covell should not have been permitted to produce the Redflex radarcam image in photographic form as he did, because he had not been part of the process that had rendered the image into photographic form. Further, that Mr Covell had agreed that the enlargement of the image must have been a digital manipulation and further, that he did not know who had created the photograph.  Mr Ellis’s essential submission was that there had been a lengthy and obscure chain of evidence, from capture of the image to its production as a photograph and enlargement, that had not been done by Mr Covell, yet he had produced this as a critical exhibit. At best, Mr Covell was only a party to the genesis

of this important documentary exhibit but not a party to its production.   The photograph would have been created from a digital disc, on which the images from the Redflex radarcam had been downloaded, by unknown personnel in the Police Infringement Bureau.

[13]     Mr Ellis accepted however that if s 154(2) did permit a witness with no exact knowledge of the provenance of certain evidence to produce such evidence in Court then the operation of the section clearly cured any deficiency.   The documentary evidence, viz. the subject photograph, would on that basis constitute sufficient evidence in the absence of contrary proof.

[14]     In relation to the photograph that he had brought to the Court and put to Mr Covell,  Mr  Ellis  submitted  that,  whilst  he  did  not  suggest  this  photograph purported  to  be  an  image  taken  by approved  vehicle surveillance  equipment,  it nevertheless  purported   to  contain  the  same  image  as  that  captured  in  the prosecution’s photograph.  On that basis, the image in the defence photograph must attract the effects of s 145(2) and be rendered a perfect document and therefore constituted sufficient evidence that he was travelling at 30 kph, in the absence of proof to the contrary.   A further submission was that this photograph had been introduced in evidence before the prosecution had produced its Redflex radarcam photograph.   However, I did not understand Mr Ellis to contend that the order in which the competing photographs were produced, precluded the prosecution photograph from constituting proof.   In any event, such a contention is quite irrelevant, as in order to attract the effect of s 145(2), an image must have been captured  by  means  of  an  exposure  taken  by  approved  vehicle  surveillance equipment.  Mr Ellis’s photograph did not qualify in this respect and nor did he argue that it did.  In the event it was not capable of proving any essential fact.

[15]     Mr Ellis’s final argument was that s 145(2) is a dangerous provision because it circumvents the established approach to the production and verification of documentary evidence in Court.   However, the Legislature has  clearly made an express exception to that principle in ss 145 and 146 Land Transport Act.  Such an approach is not unique in respect of scientific analysis or technical documentary evidence which can be duly certified.

Discussion

[16]     Whilst  Mr  Covell  was  challenged  through  cross-examination  as  to  the process of the production of the image in the digital photograph produced by the prosecution, this process is clearly envisaged and incorporated within the provisions of s 145(1) and (2), and no evidence was called or produced by Mr Ellis to the contrary.   The provisions clearly provide for an image produced by means of an exposure taken by approved vehicle surveillance equipment to constitute sufficient evidence  (in  the  absence  of  proof  to  the  contrary)  that  the  subject  image  was produced by approved vehicle surveillance equipment.  No further proof of a chain of evidence is required to prove the image, other than that approved equipment was deployed by a certified operator on a particular date to capture it.  This was done in the present case and the resultant image speaks for itself.  The detail of how it was actually processed and by whom is not required.  Many thousands of such images are daily recorded but an image will only be produced in photographic form if it is required for evidential purposes.

[17]     The wording of s 145(2) requires no further examination by the Court.  Its interpretation and application is clear. As the Court of Appeal in R v Haskett noted:[1]

... Because of the low level nature of the offending and the low level of “punishment”, Parliament has been satisfied that, generally speaking, production of a photograph recording the speed should suffice as prima facie proof.

[1] R v Haskett CA261/05, 30 March 2006 at [34].

[18]     Furthermore, Mr Ellis did not attempt to deny either at first instance or on appeal that the motor vehicle in question was his or that he had been driving on Awarua Street in Porirua on the date and at the time in question.   His challenge was simply by way of submission.

[19]     In conclusion, the evidence for the prosecution met the statutory test and the photographic evidence produced by Mr Ellis did not constitute proof contrary to the prosecution evidence.  The order in which the photographs were produced (if in fact Mr Ellis’s photograph was actually produced), cannot affect that outcome.  Contrary

to Mr Ellis’s submission, his photograph could not constitute evidence within the

meaning of s 145(2), as it was not an image produced by means of approved vehicle surveillance equipment.

Result

[20]     The appeal is dismissed.

Goddard J