F v Police HC Auckland CRI 2008-404-112

[2008] NZHC 2395

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-112

BETWEEN  F

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         30 June 2008

Counsel:         Appellant in person

MJF Wright for Respondent

Judgment:      30 June 2008

JUDGMENT OF POTTER J On sentence appeal

Solicitors:           Meredith Connell, P O Box 2213, Auckland for Crown

Copy to:            J J F  , 6 Crannog Fen, Wattle Downs, Manurewa, Auckland

F V NEW ZEALAND POLICE HC AK CRI 2008-404-112 30 June 2008

Introduction

[1]      Mr F   was charged with an infringement offence that on 16 May 2007 he drove a motor vehicle on Preston Road at a speed exceeding 50 kph, being a speed detected by approved vehicle surveillance equipment.

[2]      Mr F   requested a hearing and the matter was heard before Justices of the Peace on 1 April 2008.  Mr F   was convicted and fined $80 and ordered to pay Court costs of $30.

[3]      Unfortunately, it would appear that neither the evidence given at the hearing nor the judgment were recorded.  The Crown, nevertheless, submits on the basis of a brief of evidence of Bryan John Burns, who was operating the speed camera on that date and states that he took a photograph at 2.12 p.m. of a car, which Mr F   accepts is his, which he recorded as travelling at a speed of 65 kph, that I can be satisfied that the police case was proved and that it is “unlikely a substantial miscarriage of justice has occurred”.

[4]      Mr Wright noted that r 5.1 of the Land Transport (Road User) Rule 2004, which creates the offence, provides a defence only under sub-para (3) and that none of the three alternatives in that paragraph apply in this case.

[5]      Mr F   takes  a point about  the  registration  plate  being inaccurately stated on the information and says that there were no 50 kph speed limit signs in the area of Preston Road where he was travelling on that date.  He accepts the car was his and accepts that he drove over the speed limit if it was 50 kph, but he says he did not know it was 50 kph, nor that he was exceeding the speed limit.

Result

[6]      It is inappropriate for this Court to determine an appeal when neither the notes of evidence nor the decision in the District Court are available.   I am not

prepared to assume that the charge was duly proved against Mr F  .  Therefore, I allow the appeal and remit the matter for rehearing in the District Court.