G v Police HC Greymouth CRI 2005-418-2
[2005] NZHC 1201
•22 March 2005
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND
GREYMOUTH REGISTRY
CRI-2005-418-000002
G
Appellant
V
NEW ZEALAND POLICE
Respondent
Hearing: 22 March 2005
Appearances: Appellant In Person
M T Bradley for Respondent
Judgment: 22 March 2005
ORAL JUDGMENT OF PANCKHURST J
This is an appeal against conviction and sentence following a hearing in the District Court at Westport on 14 January 2005. Mr G was charged with two offences of driving while disqualified at Karamea. These related to 15 and 17 October 2004. I shall come to the circumstances of the offences in a second.
The background is that on 4 August 2004 Mr G was served with notice that his driver's licence had been suspended and that he was a disqualified driver for incurring an excessive number of demerit points. Between July 2003 and March 2004 he had incurred demerit points totalling 110 as a result of exceeding 50 kph in a restricted area and two offences of exceeding 80 kph while towing.
G V NEW ZEALAND POLICE HC GRY CRI-2005-418-000002 [22 March 2005]
The suspension was for a period of three months which of course ran from the date of service of the requisite notice being 4 August. The offences which incurred the demerit points were committed, I note, in Napier and Rangiora. Mr G has indicated in the course of his argument this morning that he was living in Karamea as a result of a business failure in Christchurch from which he also became bankrupt.
His living circumstances were that he resided in a house on the main road into Karamea which he occupied with two of his children, a daughter aged 13 and a son aged 14 years.
The evidence given at the defended hearing was based upon video film and dealings which occurred between the local constable and the appellant. The gist of the constable's evidence was that from driving past Mr G 's home he became suspicious that he was not complying with the suspension notice since, on occasions, the car was missing or had been moved from its parked position. Concerned at this, he approached the owners of a dairy factory across the road and apparently secured permission to place a video camera in the factory. This was able to capture a view of the driveway entrance to Mr G 's house.
The camera was installed on 15 October and at about 9.45 that evening it showed Mr G 's car being driven from the property and not returning until the early hours of the following morning. However the quality of the image in relation to the driver was, unsurprisingly, indistinct given the lighting.
On 17 October the video captured Mr G getting into his car at about 5 in the evening, reversing it from the driveway and parking it on the roadway immediately outside his home but on the opposite side. On this occasion the evidence of identification was much sounder.
These two charges of disqualified driving were defended in the District Court on the basis that the evidence in the form of the video film was illegally obtained and should not be received. The Judge disagreed. He assumed for the purposes of the hearing that use of video surveillance in the present circumstances did constitute a
search. He then considered whether the search was unlawful or alternatively, unreasonable. This the Judge approached on the basis that it was a question of time, place and circumstance. He was satisfied that the constable had reasonable grounds to believe that driving while disqualified offences were being committed. He was also of the view that the constable did not have the resources to lie in wait in order to obtain the necessary evidence.
Finally, the Judge considered that the degree of intrusion on privacy was
minimal, since the camera was effectively trained from some distance on the driveway of the address and was no more intrusive than that. Hence he concluded that there was nothing unreasonable and therefore no breach of the New Zealand Bill of Rights Act had occurred. In case that conclusion was wrong the Judge indicated that had it been necessary to do so, he would in any event have admitted the evidence in terms of the principles established in the case of R v Shaheed [2002] 2 NZLR 377.Mr G has argued this morning that it was unreasonable to use a video camera in the circumstances of this case. He points out that the community in Karamea comprises about 600 people. The thrust of his argument was that what was required in the present circumstances was face to face, or personal, policing of a perceived problem in a small community. He submitted that the constable went about things in the wrong way and that he "couldn't believe it" when he found that a video camera had been used in this fashion. This was criticised as unnecessary and extreme, given the offences which were under investigation.
Mr Bradley, in his written submission, effectively supported the reasoning of the Judge. While acknowledging that this is an unusual case to the extent that a video camera was used in relation to traffic offences, counsel supported the Judge's process of reasoning, namely that there were reasonable grounds for the belief that the suspension notice was not being complied with, that police resources were limited and that any intrusion involved was relatively minimal, in any event.
To a significant extent the problem in reconsidering this issue on appeal is that the evidence in the District Court concerning this aspect was limited. Mr G
represented himself. He did, to some degree, challenge the constable concerning his course of action but there was relatively little in the way of challenge and certainly Mr G has been more forthcoming in his submissions today in criticising the constable's approach than I perceive was the case in the District Court.
I am not persuaded that use of the camera was unreasonable. I do accept that that is a borderline call. Certainly it is unusual to find the use of an intrusive, investigative technique of this kind in relation to an offence of driving while disqualified. However, whether the technique is unreasonable or not is a question of assessing the particular circumstances of the case and here the circumstance that it was a sole police constable in Karamea is, of course, of considerable moment.
At the end of the day I do not consider it would be competent of me to disagree with the careful assessment of the Judge who heard the matter. It follows that the evidence of the video films was properly admitted. Therefore the convictions must be sustained, the more so since Mr G candidly acknowledged when he was cross-examined in the District Court, that he had driven both on 15 October and 17 October 2004. As to the first occasion he said to the Judge that he drove because it was raining on that day. On the second his evidence was to the effect that he simply drove the vehicle out of the front yard to enable him to undertake some work there. Hence, by the conclusion of the hearing, there was unequivocal evidence to establish the offences.
The second aspect of the appeal is against the sentence imposed. Mr G was ordered to perform 75 hours of community work and disqualified from driving for eight months. With reference to that, the Judge said he might have been inclined to impose the minimum period of disqualification, six months, but since there were two offences on different days, he considered eight months was appropriate. That term was imposed in relation to both charges but on a concurrent basis.
Mr G has submitted that the sentence was, in all the circumstances, clearly excessive. He has now performed 45 to 50 hours of the community work at Karamea. He also drew attention to the fact that after he was spoken to by the constable in late October and told that he would face the driving while disqualified
charges, his vehicle was impounded and to that end taken to Westport. He incurred a cost of $900 being towage and associated fees in retrieving it back to Karamea subsequently.
Mr G 's circumstances have also changed since the hearing in January. He is a joiner by occupation and has returned to Christchurch where he has employment in his trade. This means that in order for him to maintain contact with his daughter, who is still in Karamea, he is endeavouring to travel back, by bus, to Karamea every few weeks.
In my view the sentence imposed was clearly excessive, given the particular circumstances of this case. Driving while disqualified is always to be regarded as a serious driving offence. The offence on 15 October was certainly in that category. Mr G drove for reasons of sheer convenience, that is because it was raining. The second offence, however, was almost technical in that he simply parked his vehicle on the roadway outside his home in order that he could attend to some work on the section. It does not seem to me that this dimension was sufficiently recognised, nor that weight was given to the circumstance that because of the isolation of Karamea, Mr G also had to bear a significant financial penalty, the $900 incurred in relation to the impounding of his car.
In these circumstances I allow the appeal against sentence to the extent that the sentence of community work is reduced to one of 50 hours and the disqualification to one of six months on each charge, those terms of course to run concurrently, so that the effective disqualification is six months. In short, I am satisfied that the minimum term which was considered by the Judge was the appropriate term in the unusual circumstances of this case.
Solicitors:
Appellant: Mr S M G , C/o XXXXX X Street, Karamea
Raymond Donnelly & Co, Christchurch for Respondent
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