F v Police HC Auckland Cri-2007-404-327

[2008] NZHC 620

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-404-000327

F

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 May 2008

Appearances: K P McDonald for the Appellant

M J Hodge for the Respondent

Judgment:      5 May 2008

(ORAL) JUDGMENT OF DUFFY J

Solicitors:   K P McDonald P O Box 331065 Takapuna Auckland for the Appellant

Meredith Connell P O Box 2213 Auckland for the Respondent

F V POLICE HC AK CRI-2007-404-000327  5 May 2008

[1]      This matter first began on 6 January 2007 when the vehicle driven by the appellant, Mr F  , was allegedly recorded by a Police laser tracking it at over

100 km at Ramarama.  This resulted in an infringement fee of $230 being imposed.

[2]      Mr F   has at all times regarded this matter as one of principle and so he did not pay the infringement fee.  In due course, a notice of hearing in respect of the infringement notice was issued out of the Pukekohe District Court.

[3]      The matter was first called before Justices of the Peace on 29 June 2007.  On that date, counsel for Mr F   objected to the admissibility of a certificate of accuracy dated 11 August 2006 in respect of the laser device which gave rise to the prosecution. The challenge was based on the certificate being unsigned.

[4]      Over the objection of counsel, the Justices of the Peace adjourned the hearing to enable the Police to call evidence from the person providing the certificate as to the background which led to its preparation.

[5]      The defended hearing resumed on 19  October  2007.    At  that  hearing,  a Mr Gardiner was called by the Police to give evidence as to the accuracy of the laser device.

[6]      The appellant was duly convicted and then appealed to this Court.   The appeal was first called before this Court on 25 February 2008 at which time it could not go ahead because there was no available transcription of all the evidence before the Justices of Peace on 29 June 2007, nor was there a full transcription of all the evidence before the Justices of the Peace at the resumed hearing on 19 October 2007.

[7]      The matter was adjourned to today in the hope that by then, a full record of the proceeding before the Justices of the Peace would be available.  Before me today, it was accepted by both parties that I still do not have a full record of the proceeding before the Justices of the Peace.  The Crown has very responsibly conceded that on the record of evidence available to me, there is an insufficient record from which I could form a judgment on whether or not Mr Gardiner’s evidence was right or wrong on the issue of the accuracy of the laser device.

[8]      The Justices of the Peace concluded that the laser device would also have been subject to a speed check.  However, the evidence of the Police Constable on the speed check of the device does not go so far as to permit the inference that the particular device used to record the appellant’s speeding had been properly speed checked.

[9]      Dealing with that last point first, it seems to be that in the absence of clear evidence from the Police that the particular device used to record the alleged infringement against the appellant had been speed checked, I cannot assume that this would have occurred.  Accordingly, I cannot for the purposes of the appeal assume that the laser device had been speed checked.

[10]     The  Crown  has  submitted  that  the  infringements  can  stand  nonetheless because even though there was no evidence that this particular laser device was speed checked, there is still the expert evidence of Mr Gardiner that the device was accurate.  The problem with this submission is that I do not have available to me a full record of the evidence that Mr Gardiner gave.  The Crown accepts that on the strength of the record of Mr Gardiner’s evidence that is available to me, neither I nor anyone else could form a judgment on whether any opinion he gave on the accuracy of the laser device was right or wrong.  This being the case, it seems to me that a fundamental element of the Crown case against the appellant is lacking.

[11]     The  Crown  has  sought  to  uphold  the  infringement  on  the  basis  that  no challenge has been made to Mr Gardiner’s evidence and since there has been no challenge to his evidence, I should treat it as being to the effect that the device was accurate.  This seems to be how the Justices of the Peace treated it.  The problem with this approach is that the appellant has a general right of appeal to this Court.  He is entitled to challenge the decision of the Justices of the Peace on the ground the decision is wrong in fact or in law.  He cannot properly exercise his appeal if I do not have all the material available to me from which I can reach a view on whether or not the decision of the Justices of the Peace on this issue is in error, either in fact or in law.  As matters stand, without a full transcript of the lower Court hearing I am in no position to judge if Mr Gardiner’s evidence before the Justices of the Peace was unchallenged.

[12]     This is a case where matters have gone awry more than once.  The need for Mr Gardiner to be called before the Justices of the Peace was because the certificate the Police relied on to prove the speed reading was not signed.   When there is a defended hearing, the burden is on the prosecution to have its case in order and to proceed on the day.  In this case, the Justices of the Peace granted the prosecution an indulgence by adjourning the hearing to enable the Police to cure the defect in their case flowing from the unsigned certificate.

[13]     In this appeal the appellant has also challenged the decision to adjourn the defended hearing when it was first called.  The Court of Appeal’s decision in R v Keefe CA162/04 22 July 2004 makes it clear that an appeal against the exercise of a discretion is to be based upon an assessment of whether or not the Court has made an error of law, failed to take into account a relevant consideration, or is plainly wrong. If none of those things are present, then an appellate Court cannot intervene when dealing with an appeal from the exercise of the discretion, which an application for an adjournment clearly is.  However, here, the reasons for the Justices of the Peace allowing an adjournment to enable the Police to improve their case are not available to me.  This is another disadvantage that the appellant has suffered.

[14]     I am faced with a situation where there is a complaint that an adjournment should not have been granted and I am in no position to make any assessment on it. There is a complaint about the entry of an infringement in circumstances where key evidence to support that infringement is not available to me.

[15]     It seems to me that for a number of reasons the appellant has not had a fair hearing in terms of ss 25 and 27 of the New Zealand Bill of Rights Act 1990.  The appeal is a relatively minor matter.  The appellant is, nonetheless, entitled to assert his rights to defend himself if he so wishes.  If he does that, he is entitled to expect that the Court processes will be properly followed so that he can raise a proper defence both in the lower Court and in exercising an appeal in this Court.  His rights to do so here have been seriously compromised by the defects in process that have followed from the non-availability of the reasons for granting an adjournment and the failure to properly record all the evidence in the lower Court.

[16]     For these reasons, he cannot have a fair appeal today.  It would be wrong in that circumstance for me to entertain any ideas of dismissing his appeal.  Nor do I consider  it  appropriate  to  grant  a  further  adjournment  given  the  delay  that  has already occurred.   Finality is important here.   I consider I have no option in the circumstances but to allow the appeal and quash the offence.

Duffy J