H v Police HC Hamilton CRI 2006-419-151

[2006] NZHC 1486

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-419-000151

BETWEEN  H

Plaintiff

AND  POLICE Respondent

Hearing:         1 December 2006

Appearances: Appellant in Person

CD Bean for Respondent

Judgment:      1 December 2006

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

1 December 2006 at 3.15 p.m., pursuant to r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Almao Douch, Crown Solicitors, PO Box 19173, Hamilton

Copy to:

Simon Stewart H  , 91 Tuihana Drive, Papamoa

H V POLICE HC HAM CRI 2006-419-000151  1 December 2006

[1]      Mr H   appeals against his conviction under s 40 of the Land Transport Act 1998 and Rule 4 of the Offences and Penalties Regulations 1999.  It was alleged that he drove his vehicle on State Highway 27 near Tahuna at 115 kilometres per hour, a speed in excess of the applicable speed limit of 100 kilometres per hour.

[2]      His  conviction  was  based  on  the  evidence  of  a  police  constable,  Barry Clarence Hazelton, who gave evidence of his deployment at the relevant time, of a speed detecting device known as a Stalker DSR.   That device has two antennas designed  to  detect  vehicles  both  in  front  and  to  the  rear  of the  patrol  vehicle. Certificates of Accuracy in relation to both antennas were produced in evidence as was a certificate of the accuracy of the speedometer of the vehicle that was driven by Constable Hazelton at the time.

[3]      Apart  from an  issue  that  he  raised  concerning  the  manner  in  which  the hearing had been conducted by the Justices of the Peace who dealt with the matter in the District Court, the arguments that Mr H   has presented in pursuing the appeal have been technical in nature and based largely upon alleged failures to comply with requirements of two documents, copies of which were handed to me.   They are a document bearing the crest of the New Zealand Police called the “Speed Detection Operators Module” (“SDOM”) and a document called the “Stalker Dual and Stalker DSR Traffic Radar Operators Manual New Zealand Police 01  September  2000” (“SDSD”).

[4]      Mr Bean, who appeared for the respondent, initially took exception to the appellant referring to either of these documents on the basis that they had not been put in evidence in the Court below.  However, it appears that the SDOM had been referred to in the District Court.   Mr H   advised that at the conclusion of the hearing the Justices had requested a copy of the SDOM, that it had been copied and handed to them and taken with them when they retired to deliberate.  It is plain from the face of their decision, which spoke of the requirements set out at page 30 of the SDOM, that the document was in their possession, even if not a formal exhibit.  In the circumstances, Mr Bean abandoned his argument that reference should not be made to that document.  But he maintained that the SDSD should not be referred to.

[5]      Mr H   was not in a position to refer me to any statutory or regulatory provision which gave either of the documents legal force and Mr Bean was also unaware of any such provision.  I propose to approach the matter on the basis that both documents appear, on their face, to be at least good practice guides which ought to be complied with when the speed detection devices to which they relate are used. I expressly avoid, however, any conclusion that the documents must be complied with as a matter of law.

[6]      In the event, because I think there are clear answers to the issues that have been raised by Mr H  , I also do not need to rule on the admissibility issue that has been raised by Mr Bean in relation to the SDSD, because of the fact that it was not tendered as an exhibit in the Court below.

Conduct of the hearing

[7]      I will deal first with the criticism made by Mr H   of the manner in which the hearing was conducted in the Court below.   His point was a narrow one.   He based his complaint  on an  alleged  failure  by the  Justices  to  allow  him  to  “re- examine” Constable Hazelton which he characterised as a failure to comply with s 67(6) of the Summary Proceedings Act 1957.  That subsection simply enacts that the parties may examine, cross-examine and re-examine witnesses.   Constable Hazelton was, of course, called by the prosecution and he was cross-examined by Mr H  .  In re-examination he was asked certain questions and Mr H   told me that he had wished to ask further questions based upon what the constable had said in re-examination.  As I explained to Mr H  , what he really wanted was the right to further cross-examine the witness.  The difficulty he faces however, is that he did not articulate that request.   The record did not contain any suggestion that at the conclusion of the constable’s re-examination Mr H   sought to ask any further questions.   I asked Mr H   whether he had in fact made such a request and he confirmed that he had not.

[8]      Some times it might be suggested, particularly where there is a lay litigant, that the Court should offer the right to ask further questions in cross-examination, but that would normally only appropriately be done where new material had arisen in

re-examination, as a result of questioning which had exceeded the proper bounds of re-examination.   Here, Mr H   evidently wished to pursue further evidence that had been given by the constable on the question of the pitch and tone of sounds emitted by the Stalker DSR.  However, that evidence had been led in re-examination as a result of questions that Mr H   had put in cross-examination.  For example, the record shows at page 8 a question that  was put  by Mr H   including the following:

So if we go on, audio confirmation, that you have to listen for a clear tone, check the tone is consistent with the speed, which you say you’ve done but it’s definitely not on the notes…

[9]      The question that was asked in re-examination (which will be referred to in more detail later in this judgment) was whether there was anything about the tone of the device that  assisted with the speed assessment.    It  is  plain  that  that  was  a legitimate question to be asked in re-examination as arising out of the cross- examination, and in the absence of Mr H   making any request of the Court for the right to further cross-examine, I do not think that there was in the circumstances any duty on the Court to proffer that opportunity to Mr H  .   The ground of appeal based on the manner in which the hearing was conducted must, therefore, fail.

Technical issues

[10]     As earlier mentioned, Mr H   raised a number of technical issues based on non-compliance with the SDSD and the SDOM.  Many of the points he raised were not put to Constable Hazelton, nor the subject of argument addressed to the Justices of  the  Peace.     Included  in  that  category  was  an  argument  based  upon  the requirements of page 16 of the SDSD concerning the carrying out of what is called the “tuning fork test” by which the proper functioning of the antennas of the Stalker DSR device is tested.   Mr H   argued by reference to the relevant parts of the SDSD  that  the  test  cannot  have  been  properly  performed  having  regard  to  the manner in which the logbook purporting to record the test results had been filled in. However, Constable Hazelton had not been cross-examined on that issue nor had there been any submission directed to the Justices of the Peace about it.

[11]     In those circumstances it would not be proper to inquire into the issue on appeal.  Had it been raised with the constable there would have been an opportunity for him to respond to the criticisms now raised and give relevant evidence about it. That, however, was not done and the matter cannot now be raised on appeal.

[12]     The  second  argument  that  Mr  H    put  forward  was  that  incomplete evidence had been given that a “tracking history” had been established for the “target vehicle”, that is, his car.  This argument was based on the requirements of the SDOM which provides that obtaining a proper tracking history of the target vehicle will “effectively eliminate errors”.   According to the SDOM such a tracking  history would contain three main elements.    These are called visual observation,  audio confirmation and radar verification.  At page 15 of the SDOM those three elements are themselves broken down into various parts as follows:

Visual observation      There  are  three  parts  to  visual  observation,  the operator must:

1.        identify the target  vehicle and continue to monitor its travel

2.confirm  the  target  vehicle  is  within  the radar’s range

3.        estimate the target vehicle’s speed

Audio confirmation     There  are  three  parts  to  audio  confirmation,  the operator must:

1.        listen for a clear doppler tone

2.        check the tone is consistent with the speed

3.check the level of the signal heard is strong and not fluctuating in audio content.

Radar verification       There are three parts to radar verification:

1.the  initial  reading  is  consistent  with  the operator’s visual observation and operator- estimated speed

2.        a steady target reading

3.readings consistent  with visual observation and audio tone

4.ground speed readings confirmed by patrol speedometer.

[13]     At page 30 of the SDOM there is a further reference to the tracking history in a part of the document  which is headed  “Speed detection Code of Operations”. Immediately under the heading it is said that the Code of Operations governs the operation of all speed detection equipment used by the New Zealand Police and it is advised that the Code has been “jointly prepared and agreed to by the Measurement Standards Laboratory of New Zealand  (MSLNZ)  and  the New  Zealand  Police”. Having referred to the three elements of visual observation, audio confirmation and verification by a speed detector it is stated at page 30 that:

To eliminate errors effectively, all three elements must be present for each speed check.

[14]     I have already mentioned that neither the appellant nor the respondent was able to refer me to any statutory provision which suggests that these requirements are mandatory.   On the other hand, it must be possible for a defendant to refer to the tracking history requirements of the SDOM in support of a contention that in the absence of compliance a Court should not be satisfied that a vehicle has indeed been measured at a particular speed.  I cannot see how the document can have any greater significance - so that proof that there had been non-compliance with one of the necessary elements would in some way automatically vitiate the result obtained by use of the device on any particular occasion.

[15]     Here,  Mr  H  ’  argument  was  essentially  based  on  omissions  in  the evidence of Constable Hazelton.   He argued that there had been no evidence of monitoring of the travel of his car as required under item 1 of the requirements for “visual  observation”,  and  also  no  evidence  that  the  vehicle’s  speed  has  been estimated as required by item 3.  Those matters were not, however, put to Constable Hazelton and Mr  H  ’ argument  has really proceeded upon the basis that  an omission by the constable to refer specifically to those matters meant that there had been a fatal flaw in the evidence.

[16]     The essential matter that the prosecution had to prove however was that the vehicle  had  been  driven  on  the  highway  at  the  relevant  time  in  excess  of  the

permitted speed limit.  A failure to give evidence as to specific steps in the tracking history as described in the SDOM could not have any significance in the absence of a  question  being  raised  in  the  hearing  as  to  the  possible  implications  of  that omission.   The issues that I am presently discussing were not raised in any direct way.

[17]     Constable Hazelton’s evidence-in-chief of what transpired was that he had checked the speed of a north-bound Ford car with the registration number CKH 729 by use of the Stalker DSR device.  He had given evidence about completion of the logbook entry and also  produced the certificates relating  to  the accuracy of the antennas.  Under cross-examination by Mr H   he was required to give more detail about what had occurred.  In that respect he was asked what he had done with the radar when he saw the car coming towards him and he had responded to various questions in relation to that.  It is correct that he did not give evidence about having monitored the vehicle’s travel or estimating its speed.  But the questions in my view were not designed by Mr H   to secure answers dealing with those issues and the constable’s failure to address them was, I think, reasonable in the circumstances.  I consider that the Justices would have been entitled to infer that the constable would not have used the device to check the appellant’s speed unless he had first noticed the appellant’s car and formed the view that it might be speeding.

[18]     Mr H   contended further that there was no evidence of identification of his vehicle as the target vehicle.  On one level that is plainly incorrect because the constable’s evidence was all about the appellant’s vehicle and the measuring of its speed by use of the Stalker DSR device.   Mr H   submitted that there had been evidence of a vehicle to the rear of the constable’s car and that the constable had wrongly truncated the procedures on the basis he was carrying out a single vehicle check.  I have to say that having carefully checked the transcript the only suggestion I can find that there was another vehicle was in evidence given by Mr H   after Constable Hazelton had given evidence.   The existence of another car behind the constable’s car in sufficient proximity to have affected the measurement of the speed at which the appellant was travelling, or the speed of which might have been monitored by the device instead of the speed of the appellant’s vehicle, were not possibilities put to the constable in cross-examination.    In any event, as I  have

prove that each element of the procedures set out in SDOM had been complied with.

[19]   In relation to the requirements of the tracking history insofar as audio confirmation is concerned, once again Mr H   at one stage appeared to complain that  there  was  no  evidence  that  there  had  been  compliance  with  the  audio confirmation requirements of the SDOM.  However, that is not correct because in re- examination (in evidence that is also relevant to the previous point), the constable stated:

A        When  there’s  a  single  vehicle  in  the  actual  beam  that  you  are monitoring at the time, the tone stays consistent.  When you get two vehicles that come into the, this is as I say is part of the tracking, the pitch of the tone will raise.   Especially if the second vehicle coming into the beam from behind is at a faster speed it will raise from the speed of the first vehicle we’re checking and the pitch will actually increase for the second one.  As I say, in this instance there is, because there was only one vehicle, there was just one tone.

[20]     The following questions and answers should also be noted:

Q        And what about the pitch of the tone?  Is that relative to the speed or the alleged speed of the vehicle that you are monitoring?

A        Yes the faster the vehicle the higher the pitch.

Q        So  can  you  say  anything  about  the  pitch  of  the  device  on  this occasion as it related to the speed that was detected by the device?

A        The pitch was higher than what you would get from a vehicle that was travelling at 100 kilometres per hour, but it was just, it  was  just a constant tone and didn’t fluctuate or anything like that.

Q        And from your experience in operating speed detection devices, do you developer[sic] a sense of the pitch of the device and the speed that the device is telling you that the vehicle is travelling at?

A        Yes, the higher the speed reading, the higher the pitch.

[21]     It cannot be said in the circumstances that there was non-compliance with the audio confirmation requirements of the SDOM.

[22]     Other arguments that were raised by Mr H   concerned straightforward allegations that Constable Hazelton’s evidence was factually incorrect.  An example of that was evidence that Constable Hazelton had given that a particular display on

convince this Court on appeal that the colour of the display would have been amber and he handed me up a coloured depiction of the display face of the device.   That document, however, was not given in evidence in the Court below and I explained to Mr H   that I could not accede to his submissions simply on the basis of the document that he purported to rely on at the hearing of the appeal.   Once again, I observe that had there been anything in this issue it should have been put to the constable whose response might have shed relevant light on the matter.

[23]     Another issue raised was based upon what is described as voice enunciation in the SDSD.  The SDSD says in relation to the point immediately after the Stalker DSR is locked onto a vehicle of interest, is that there will be a “three-word voice enunciator that indicates antenna/radar mode/direction”.   Mr H   complains that there was no evidence of voice enunciation and referred to a relevant question and answer in cross-examination:

Q        So  there’s  no  evidence  that  we  had  any  confirmation,  a  voice confirmation there is there?

A        No.

[24]     There was no follow-up question on the significance of that omission nor evidence given by Mr H   himself as to its significance.  I do not accept that in the absence of evidence of the voice enunciation the Justices should have concluded that the device was either malfunctioning, or not measuring the speed of the appellant’s car.  It is not a basis upon which the present appeal could succeed.

[25]     Another issue raised by Mr H   concerned the manner of carrying out a calibration check.  This was another argument founded on the SDSD.  He suggested that the test could not have been carried out in accordance with the evidence given by Constable Hazelton.  But in the absence of any questioning of the constable on that issue, the appeal cannot succeed on this ground either.

[26]     In the result I have not been persuaded that any of the matters that Mr H   has raised on the appeal have any substance.  The Justices were entitled to conclude

alleged.  For the reasons I have given the appeal is dismissed.