Hadley v Police

[2013] NZHC 2103

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2013-476-0002 [2013] NZHC 2103

BETWEEN  JAMES WILLIAM PETER HADLEY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   (on the papers)

Counsel:                  J W P Hadley, Appellant in person

N M Willcocks for Respondent

Judgment:                19 August 2013

JUDGMENT OF HEATH J

This judgment was delivered by me on 19 August 2013 at 4.00pm pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Gresson Dorman & Co, Timaru
Copy to

Appellant in person

HADLEY v NEW ZEALAND POLICE [2013] NZHC 2103 [19 August 2013]

[1]      Mr Hadley was given an infringement notice, on 22 July 2012 alleging that, at Lindis, he drove a motor vehicle on a road at a speed exceeding 100km/h.  That was the applicable speed limit in the area.  Mr Hadley disputed the notice.

[2]      A defended hearing on the charge was held in the District Court at Oamaru, on 9 May 2013.   Evidence was led from the police officer who had stopped Mr Hadley.  He had used a radar device to ascertain Mr Hadley’s speed.  The Justices of the Peace found the charge proved.  Mr Hadley was ordered to pay a fine of $170 and Court costs of $30.67.1

[3]      Mr Hadley appeals against that finding.  His notice of appeal contends that the Justices “did not adequately weigh or address all evidence”.  However, in a letter to the Court dated 23 July 2013 a procedural issue was also raised.   Mr Hadley submits that the Police failed to disclose, prior to the hearing, evidence relevant to the accuracy of the radar device, thereby affecting his ability to prepare adequately. Both parties agreed that I should deal with the appeal on the basis of the papers filed.

[4]      Constable Smith is stationed at Omarama Police Station.   He has been a certified operator of speed enforcement equipment since July 2002.   He holds a certificate of proficiency, in that regard.  When Constable Smith gave evidence, Mr Hadley raised an objection to production of the certificate of proficiency on the ground of non-disclosure.

[5]      Constable Smith said that he was driving a marked Police vehicle in the Omarama area on Sunday 22 July 2012.  He conducted a “daily radar test” and filled out a “radar log book”.  He also referred to having obtained a certificate of accuracy for his patrol vehicle’s speedometer and odometer.  Mr Hadley complains that this document was not disclosed before the hearing.

[6]      At 6.58pm, Constable Smith was travelling north on State Highway 8, on the

Lindis Pass.  Mr Hadley’s vehicle (a Land Rover) was being driven south.  By using

the radar device, Constable Smith ascertained Mr Hadley’s speed at 125km/h. At the

1      Police  v  Hadley  DC  Oamaru  CRI  2012-045-464,  9  May  2013  (L  Campbell  JP  and

G Pointon JP).

hearing, the constable gave evidence about the way in which the radar device was

operated and the length of time that the beam was tracking Mr Hadley’s vehicle.

[7]      Constable Smith turned his vehicle around and headed south.  He stopped Mr Hadley’s vehicle and spoke to him.   Constable Smith asked him about speeding. According to Constable Smith, Mr Hadley neither admitted nor denied the offence.

[8]      Mr Hadley questioned Constable Smith about his evidence.   The constable was not shaken by that cross-examination.  Much of the questioning was directed to the manner in which the infringement notice came to be issued rather than the question whether Mr Hadley was driving at a speed exceeding 100km/h.

[9]      During the  course of  cross-examination,  and  immediately afterwards,  Mr Hadley raised his concerns about lack of disclosure with the presiding Justices.  At the conclusion of the Police case, Mr Hadley told the Bench that there were three documents he had not received: the certificate of accuracy of the front antenna of the radar unit the certificate of proficiency and a copy of Constable Smith’s amended brief of evidence.  Mr Hadley did not dispute that the material had been sent to him but said it had not been received.

[10]     Mr Hadley elected not to give evidence.   His concern was that he had not been able to prepare adequately for the hearing.   In addressing the Court, he said, among other things:

I could  quite reasonably have  prepared  very differently today,  including calling experts and I have not had that opportunity.

[11]     Ms Willcocks, for the Police, submits that the Court had sufficient evidence on which to find the charge proved.  I agree.  The only evidence available was from Constable Smith.   That  evidence  was  more than  sufficient  to  establish  that  Mr Hadley was driving at a speed in excess of 100km/h at the relevant time.

[12]     As to disclosure, I consider that the assertion of prejudice is too general.  Mr Hadley did not expressly dispute the way in which the equipment functioned.  Nor did he ask any questions to lay a foundation for the view that there was something

amiss in the way it was operated.  Without laying an adequate evidential foundation, he speculated that the radar unit might have picked up the speed of another vehicle.

[13]     As Ms Willcocks submits, there is a statutory presumption that a certificate of accuracy proves that the equipment or device was accurate in measuring speed.2

That presumption was not rebutted.   Nor did Mr Hadley come within any of the defences set out in r 5.1(3) of the Land Transport Road User Rules 2004.

[14]     In my view, the failure to disclose did not cause material prejudice to Mr Hadley.  He received a fair hearing.  Had he wished to engage an expert, he could have done so before the hearing.   The expert’s inquiries would have revealed the certificate. A defended hearing may or may not have ensued.

[15]     Also,  Mr  Hadley  had  the  opportunity  of  giving  evidence  to  contradict Constable Smith, but elected not to do so.  In those circumstances, I am satisfied that the finding made by the Justices was justified.

[16]     The appeal is dismissed.

Delivered at 4.00pm on 19 August 2013

P R Heath J

2      Land Transport Act 1998, s 146.