F v Police HC Auckland CRI 2007 404 327
[2008] NZHC 205
•25 February 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2007 404 000327
BETWEEN F
Appellant
ANDPOLICE Respondent
Hearing: 25 February 2008
Counsel: Kevin P McDonald for Appellant
Michael Hodge for Respondent
Judgment: 25 February 2008
RULING OF WILLIAMS J
A. The appeal hearing is adjourned to 5 May 2008.
B. The Pukekohe District Court is to produce, if possible, a transcript of all the evidence given before the Justices of the Peace on 29 June 2007 and a transcript of the Justices’ decision adjourning this matter.
C. The Pukekohe District Court is to produce, if possible, a transcript of all the evidence in this matter given on 19 October 2007.
D. The Pukekohe District Court is also, if possible, either to send the exhibits produced at either of those hearings to this Court or to provide photocopies of documentary exhibits.
Solicitors:
Kevin McDonald & Associates, PO Box 331-065 Takapuna, Auckland [email protected]
Crown Solicitor, P O Box 2213 Auckland
Copy for:
Case Officer, Auckland High Court: Ra[email protected]Corrinna.MacDonald@justice.govt.nz
F V POLICE HC AK CRI 2007 404 000327 25 February 2008
[1] On 6 January 2007 the appellant, Mr F , was allegedly recorded by a Police Laser travelling at over the 100 kph speed limit at Ramarama, and an infringement fee of $230 was imposed.
[2] Because Mr F regards this matter as one of principle, he did not pay the infringement fee and in due course a notice of hearing in respect of the infringement notice was issued out of the Pukekohe District Court.
[3] That went through several adjournments before reaching the result which then led to an appeal to this Court in respect of the re-imposition of the infringement fee and the imposition of $30 Court costs.
[4] As it appears now from Mr McDonald’s submissions for Mr F , the matter first came before Justices of the Peace on 29 June 2007. At that stage it was apparently the case that some evidence was given and a challenge was raised to the admissibility of a Certificate of Accuracy dated 11 August 2006 in respect of the Laser device which gave rise to the prosecution. Counsel then acting – not Mr McDonald – challenged the admissibility of the certificate on the basis that although it bore the full name of the non-sworn Police member who tested the Laser device, the certificate was not signed.
[5] 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. That hearing took place on 19 October
2007. Between the two hearings the Police disclosed a brief of evidence from the non-sworn member, a Mr Gardner of Wellington, and at the adjourned hearing called Mr Gardner to give evidence.
[6] During the giving of his evidence objections were raised concerning the suggestion that notes made by Mr Gardner as to the accuracy of the Laser device in question and on which his certificate and brief of evidence had been prepared, had not previously been disclosed to the defence. It was submitted they were disclosable
and at the hearing of the appeal and for the appeal purposes only, Mr McDonald produced a copy of the Laser Calibration Test Report, WS52030 dated 11 August
2006. On the face of it, and given the number of such devices operated by the Police and tested by Mr Gardner, that material may well have been disclosable.
[7] In addition to Mr Gardner, the Police called Constable Arvidson who was, it seems, the officer who is said to have operated the Laser device in relation to Mr F on 6 January 2007. He produced the Laser device’s log book 22287 but, according to the decision of the Justices of the Peace, said it was not part of his duties to test the accuracy of the device, that being a matter for his sergeant. The sergeant, it seems, was not called.
[8] Not only are there those deficiencies in the documentary record but, of even more importance, to date the Pukekohe District Court has not produced a transcript of the evidence given on 29 June 2007 or the decision of the Justices of the Peace of that day adjourning the matter for a further hearing.
[9] Secondly, the notes of evidence of the 19 October 2007 hearing produced for this appeal, are only a partial record of the evidence given on that date. The record before this Court seems to omit some of the evidence given by Mr Gardner, and omits the whole of the evidence given by Constable Arvidson. In those circumstances, at the appeal hearing Mr McDonald urged the Court to allow the appeal and set aside the infringement fee.
[10] But the point was made that, at this stage at least, it is not known whether the Pukekohe District Court will be able to rectify the current omissions from the written record. If the Court is able to produce the missing material then a reasoned decision can be made as to the correctness or otherwise of the adjournment granted on
29 June 2007 concerning the deficiencies alleged on that date, and a reasoned decision will be able to be reached as to whether the whole of the evidence, including all of that given on 19 October, justified the Justices’ conclusion.
[11] As observed to Mr McDonald during submissions, both of those are judicial determinations. They warrant review by this Court only on principle and
conventional grounds, and at the present stage it is unknown whether a review on those grounds is possible, for lack of the material.
[12] If the District Court is unable to produce the required material then this appeal will need to be determined on such material as there is, and it may be that at that point Mr F has a rather stronger case on appeal than the deficient record would suggest at the moment. However, those are matters for the future.
[13] Accordingly, there will be orders:
a) Adjourning the appeal hearing to 5 May 2008 when it can be heard either by Williams J or by any other Judge.
b)The Pukekohe District Court is to produce, if possible, a transcript of all the evidence given before the Justices of the Peace on 29 June
2007, and a transcript of the Justices’ decision adjourning this matter.
c) The Pukekohe District Court is to produce, if possible, a transcript of all the evidence given in this matter on 19 October 2007.
d)The Pukekohe District Court is also, if possible, either to send the exhibits produced at either of those hearings to this Court or to provide photocopies of documentary exhibits.
…………………………..
WILLIAMS J.
26 February 2008
Copy for:
Mrs M Appleton JP and Mr S Baldick JP, sitting at Pukekohe District Court
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