H v Police HC Dunedin Cri-2010-412-14

[2010] NZHC 1085

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2010-412-000014

H

v

POLICE

Hearing:         11 June 2010

Appearances: Appellant in person

L C Denton for Police

Judgment:      22 June 2010

RESERVED JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      The appellant, Mr H  , was charged with driving a vehicle in excess of the applicable speed limit of 100 kilometres per hour.

[2]       After a defended hearing, two Justices of the Peace found the charge proven. They fined him $120 and ordered him to pay Court costs of $30.

[3]      Mr H   now appeals that decision.

H V POLICE HC DUN CRI-2010-412-000014  22 June 2010

The hearing before the Justices

[4]      At the hearing, Mr H   represented himself.

[5]      The prosecution called one witness, a Constable Buckingham.   He testified that on 10 September 2009 he was operating a radar unit on State Highway 6 near Cromwell when he obtained a reading of an approaching vehicle of 116 kilometres per hour.

[6]      There is no dispute the driver of the approaching vehicle in question was Mr

H  .

[7]      Constable Buckingham testified that at the scene Mr H   said he did not think he had been travelling as fast as 116 kilometres, but thought he had been going about 105 kilometres.

[8]      Constable Buckingham further stated in evidence that he had operated the radar speeding measuring device in accordance with departmental policy, and that prior to using it on the particular day he had undertaken a number of calibration checks which confirmed the device was working correctly.   He also stated that he had worked for seven years for the Ministry of Transport prior to the amalgamation with the police and had a total of 22 years service.

[9]      He produced the following exhibits:

i)Certificate  of  proficiency  showing  him  to  be  a  certified operator of the New Zealand Police speed enforcement equipment.

ii)His radar logbook, in which he had recorded the results of the calibration checks he had undertaken on the day in question.

iii)Certificate of Accuracy for a Stalker DSR radar unit antenna serial number 12104 dated 21 March 2009.

iv)A speedometer certificate relating to the speedometer of the patrol vehicle he was driving.

[10]     In cross-examination, Constable Buckingham acknowledged there was  an inconsistency between his written brief of evidence and his radar logbook in that his brief stated he was using a Stalker Dual radar unit, whereas in the logbook the unit he had checked was shown as a Stalker DSR radar unit.   Constable Buckingham confirmed the DSR and Dual were separate units and that there were differences between them, but said they did exactly the same job.   He stated he had made an error in his written brief and that on the day in question it was a DSR unit he had been operating, not a Dual.

[11]     Much of Mr H  ’s questioning of Constable Buckingham centred on the contents of two police manuals, one entitled the “Stalker Dual and Stalker DSR Traffic Radar Operators Manual” dated 1 September 2000 and the other the “New Zealand  Police  Calibration  Unit  Speed  Detection  Operators  Module,  November

2001.”

[12]     In particular, Mr H   elicited from the 2000 operator manual that one of the differences between the DSR and Dual units was that the DSR unit gives a voice enunciation after the lock, whereas the Stalker Dual does not have voice enunciation. Constable Buckingham had not testified about hearing a voice enunciation which Mr H   suggested meant he must have been using a Dual Unit as per his written brief of evidence.  However, when this was put to him, Constable Buckingham said the reason he had not mentioned voice enunciation was simply because it was not a matter usually put in evidence.

[13]     Mr H   also elicited from the manuals that different calibration tests are required for the units and that as a result the completion of the radar record logbook will differ depending on which unit is being used.

[14]     The logbook form has two lines, one to record results when testing “moving mode  (opposite)”  and  the  other  to  record  results  when  testing  “moving  mode (same)”.   The testing procedure detailed in the manual for a Dual unit produces a

reading for moving mode (opposite) only, whereas the testing procedure for a DSR

unit in the manual produces a reading only for moving mode (same).

[15]     Constable Buckingham’s logbook, however, had results recorded in both the

“opposite” and “same” columns.

[16]     In explanation, the Constable stated that the DSR device is capable of doing a moving mode test in the opposite as well as the same direction and that although the instruction manual makes no reference to testing the opposite direction mode for DSR units, he chose to carry out such a test and recorded the results in his logbook as well as the results for same direction mode.

[17]     Mr H   also gave evidence.  He denied telling the officer he thought he had been travelling at 105 kilometres.  He claimed that what he had told the officer was that he had a reading of 103 on his own speedometer.   In cross-examination he accepted the police had produced a certificate of accuracy which appeared to be correct, but argued that because the calibration tests for the day had not been carried out in accordance with the manual, that meant there was significant doubt.

The decision of the Justices

[18]     In their decision, the Justices said they accepted the officer had simply made a mistake in his brief of evidence as to which unit he had been using.  They further stated they were satisfied from the officer’s explanation that the DSR device has the capability to measure speeds of traffic moving in opposite and same directions from both front and rear antennae.

[5]      The fact that the manual does not explain this sufficiently may be a fault of the manual, but we do not believe it is the fault of the officer who it is clear to us conducted the pre-deployment test in accordance with his training.  Because these tests have been conducted in our view properly it follows that the accuracy of the speed readout is not impaired.”

[19]     The Justices then went on to refer to s 146 of the Land Transport Act 1998.

[20]     Section 146(1),which applies to speed measuring devices and the tuning forks used to conduct the calibration checks, states:

146      Evidence of testing and accuracy of speed-measuring devices, etc

(1)In proceedings for a speeding offence...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.

[21]     The Justices concluded:

[7]       So really what that says to us is that the legislation creates a statutory presumption that in the absence of proof to the contrary, the certificate is to be treated as accurate and if the certificate is not rebutted by the defence then there the matter rests and that is our conclusion.  So we are not satisfied that Mr H   has been able to show that the equipment was in any way deficient or that the reading was therefore inaccurate.

[8]       Now Mr H   has also asserted that, by way of his own evidence, his speed, as he says he noted on his speedometer, was 103 and he observations therefore that it could have been as low as 100 or it could have been, as the officer suggested, 106.  The police have pointed out in rebuttal there that even at 103 or 106 Mr H   has exceeded the speed limit and that while his speedometer had not been checked for accuracy, the equipment used by the police had been.

[9]       In conclusion then, we are satisfied beyond a reasonable doubt that Mr H   did exceed the speed limit as charged and Mr H  , you are therefore fined $120, costs $30.

Grounds of appeal

[22]     On appeal, Mr H   submitted the decision was wrong because the Justices wrongly considered the certificate of accuracy in itself was sufficient and because they failed to take into account the following matters:

i)The   conflict   between   Constable   Buckingham’s   brief   of evidence and the certificate and log book as to which type of unit had been used. No certificate of accuracy had been provided in relation to a Dual unit which is what the Constable said in his written brief of evidence he had been using.

ii)       Constable Buckingham’s failure to mention voice enunciation

iii)Constable Buckingham’s failure to complete the radar daily check log book in accordance with the operating manual. The manual does not provide any procedure which can produce the results recorded.

iv)The    fact    Constable    Buckingham    provided    incorrect information to the Court about the differences  between the Stalker Dual and the Stalker DSR.

[23]     Although Mr H   did not formulate his argument exactly in these terms, essentially it amounted to an argument that because of these matters the Justices could   not   have   been   satisfied   beyond   reasonable   doubt   as   to   Constable Buckingham’s competence to operate a radar unit and/or the accuracy of the reading.

Discussion

[24]     There have been a number of decisions which have considered the legal standing of the operator manuals, including another decision involving Mr H   himself: see H   v Police HC Hamilton CRI-2006-419-000151, 1 December 2006, Cooper J.

[25]     The following principles can be distilled from the caselaw:

i)“… where the police produce the requisite s 146 certificates, the police do not need to go further to establish that the speed measuring device was tested at the start of the shift.” Wilson v Police HC Auckland A249/00, 28 September 2001, Chambers J at [15].

ii)Manuals of this kind do not have statutory authority: H   and Jaques v Police HC Christchurch A125/02, 28 April 2003, Panckhurst J.

iii)Nonetheless, it is legitimate to use a code to test the adequacy of the operational steps taken by the particular officer: Jaques.

iv)Police should follow the guidelines for the operation of radar units.    “Failure to  do  so  may mean  the Court  will  not  be satisfied   the   speed   of   the   vehicle   was   proved   beyond reasonable doubt by the radar record.  The purpose of having a set of guidelines is to follow them.” Wadham v Police HC Palmerston North AP14/02, 5 June 2002, Ronald Young J at [27].

[26]     At first blush, the comments made in Wadham quoted above would seem to provide some support for Mr H  ’ argument.  However, it is clear the Judge in that case was not purporting to lay down some absolute proposition that any deviation from the manual will be fatal to the police case. His comments were made against a very different factual background to the facts in this case.  In Wadham the radar unit in question had been malfunctioning. It was sent for repairs and was disassembled but never re-calibrated as it should have been. It continued to malfunction both before and after the alleged offence.  The relevant police guidelines told the officer he should withdraw the unit from service until the known malfunction was fixed and that no infringement notices should issue meantime. The officer disregarded those instructions and continued to use the machine.  In those circumstances it is hardly surprising the Judge found there was a reasonable doubt as to the accuracy of the machine and that the certificate of proficiency did not apply because of the intervening repair.

[27]     In this case however, the departure from the manual consisted simply of a very experienced officer taking the precaution of doing an additional test which he said was standard practice.  There was no evidence to suggest it was not standard practice.  Nor was there any suggestion the results of his additional test showed the device was inaccurate or that his test results were meaningless or arbitrary made up figures.  In the absence of any such evidence, the mere fact an additional test is not mentioned in the manual cannot in my view of itself generate a reasonable doubt

[28]     A similar approach was taken in Jaques where the Court accepted that non- compliance with the code does not create a reasonable doubt when the constable’s evidence is clear that his actual practice produced an accurate check.

[29]     The Justices were clearly entitled to take the view they did both as to the Constable’s mistake in his written brief of evidence and his undertaking of the additional test.

[30]     Another argument raised by Mr H   was that the Constable was wrong when he suggested one of the differences between the two types of unit was that the DSR unit could pick up the fastest of a group of cars whereas the Dual could only operate where there was just the one vehicle in the beam.  However, that was never put to the Constable and in my view it is not open to Mr H   to raise it now.

Outcome

[31]     I am satisfied that none of the grounds of appeal are sustainable.

[32]     Finally for completeness I should record that nominally Mr H  ’ notice of appeal was also an appeal against sentence.  However, Mr H   did not pursue that issue.    The  fine  imposed  was  the  standard  infringement  fee  and  was  clearly reasonable as was the order for costs.

[33]     The  appeal  is  accordingly  dismissed  and  the  decision  of  the  Justices confirmed.

Solicitors:

Crown Solicitor’s Office, Dunedin

Copy to Appellant