Haskett v New Zealand Police HC Auckland A177/00

[2001] NZHC 904

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY A177/00

BETWEEN A J HASKETT
Appellant

AND NEW ZEALAND POLICE
Respondent

Date of hearing: 14 November 2000

Counsel: Alistair Haskett, Appellant in person
Karen Mitchell for the Respondent

Date of judgment: 27 September 2001

JUDGMENT OF CHAMBERS J

Lawyers:
Alistair J Haskett, c/o Cox Arcus & Co., PO Box 2175, Auckland, Appellant in person
The Crown Solicitor, DX CP 24063, Auckland, for Respondent

A driving incident

[1] At about 9.50 pm on 1 August 1999, Alistair Haskett drove his car along the Strand in Parnell, Auckland. Two police officers, Constables Gaskell and Karaka were travelling in the opposite direction in a police car. One of them turned on their Hawk radar device. It recorded a speed of 80 km/h. The police officers believed that it was Mr Haskett’s car that the radar had detected and, based on that radar reading, that Mr Haskett had been travelling at 80 km/h. They stopped Mr Haskett. He denied that he had been speeding. The speed limit in this area was 50 km/h. The police officers issued an infringement notice. Mr Haskett advised that he wished to defend the charge on the basis that he was not guilty of exceeding the speed limit.

[2] The case came before two Justices of the Peace on 9 August 2000. At that hearing, Mr Haskett applied to have the prosecution dismissed on several grounds, the principal one being that the prosecution had failed or refused to provide him with information he had requested under the Official Information Act 1982 and the New Zealand Bill of Rights Act 1990. That application appears not to have been dealt with. The justices moved straight on to hearing evidence. They found the charge proved. They found that the radar did lock on to Mr Haskett’s vehicle with a reading of 80 km/h. They found that the prosecution had presented the court ‘with the necessary certificates of accuracy and competency for the use of the Hawk radar logbook, radar speed metering device, speedometer readings, and proficiency certificate for operator Constable Gaskell’. They ‘noted’ Mr Haskett’s complaints concerning ‘the matter of disclosure of information’ and said that they had ‘given consideration to them’. They did not expressly rule on Mr Haskett’s application to dismiss or on the general question of police failure properly to disclose. Presumably, we are to infer from the fact that Mr Haskett was ordered to pay a fine of $230 with court costs of $30 that Mr Haskett’s application was declined and that they considered his concerns over non-disclosure to be inconsequential. Since the justices made no express finding on this matter, it is perhaps not surprising that they did not give reasons for what we must take to have been their decision on the complaints.

Issues on appeal

[3] Mr Haskett appealed. Mr Haskett argued the appeal in person. He did so with skill. While some of his points were without merit, others did have considerable merit and were argued logically and with appropriate case support. In essence, Mr Haskett argued that his rights under the Bill of Rights had been breached in two important respects:

[a] He was denied the right to adequate facilities to prepare his defence in breach of s 24(d).

[b] He was denied the right to a fair hearing in breach of s 25(a).

[4] During the course of preparing my judgment, another issue occurred to me. It was this. Mr Haskett had been charged with driving a motor vehicle at a speed exceeding 50 km/h in a built-up area, contrary to s 52(1)(a) of the Transport Act 1962. Under that Act, there used to be a section (s 197) creating certain presumptions as to the accuracy of speed-measuring devices. That section was, however, repealed by s 214(1) of the Land Transport Act 1998. The Land Transport Act 1998 has an equivalent section dealing with evidential presumptions as to the accuracy of speed-measuring devices. That section is s 146. But that section applies only ‘in proceedings for an offence against this Act’. The expression ‘an offence against this Act’ is defined in s 2(1).

[5] So far as I could see, Mr Haskett was not charged with an offence against the Land Transport Act even with its extended meaning. Rather, he was charged with an offence against the Transport Act 1962. I could not see, therefore, that s 146 was available to help the prosecution. Nor was s 197 of the Transport Act 1962 because that had been repealed.

[6] I invited the parties to make further submissions on this matter. Ms Mitchell, for the police, filed some very useful submissions. She acknowledged that the police could not rely on any statutory presumption as to the accuracy of speed-measuring devices. She submitted, however, that the various certificates produced in the District Court were nonetheless admissible either as ‘business records’ under s 3 of the Evidence Amendment Act (No. 2) 1980 or as ‘public documents’ under the common law public document exception to the hearsay rule.

[7] For reasons which I shall give in this judgment, I reject both of Ms Mitchell’s submissions, but a further thought then occurred to me: could the court simply rely on the common law presumption that mechanical instruments were in order when they were used? That is not an issue on which I have had the benefit of the parties’ submissions. For reasons which I shall give, I did not find it necessary to go back to the parties to seek yet further submissions on that topic.

[8] In this judgment, I intend to deal with the issues in the following order:

[a] Were the various certificates of accuracy and competency relied on in the District Court admissible as ‘business records’ under s 3 of the Evidence Amendment Act (No. 2) 1980?

[b] If not, were they in any event admissible as ‘public documents’ under the common law public document exception to the hearsay rule?

[c] Even if the certificates were not admissible, could the police nonetheless simply rely on the read-out from the radar pursuant to the common law presumption that mechanical instruments were in order when they were used?

[d] Did the police breach the Bill of Rights in the manner alleged by Mr Haskett?

Business records

[9] In the District Court the police relied on a certificate of accuracy for the Hawk radar device. The certificate was signed by one ‘R Gardner’, who certified that he or she was a member of the New Zealand police with the rank of technician. The certificate was dated 14 October 1998, almost a year before Mr Haskett’s alleged offence. R Gardner certified that he or she had tested the Hawk speed measuring device at 50 km/h and 100 km/h and that the indicated speed on the radar was within the acceptable tolerance of 2 km/h.

[10] Ms Mitchell argued that that certificate was admissible under s 3 of the Evidence Amendment Act (No. 2) 1980. The relevant part of that section reads as follows:

‘[I]n any proceeding where direct oral evidence of a fact or opinion would be admissible, any statement made by a person in a document intending to establish that fact or opinion shall be admissible as evidence of that fact or opinion if . . . the document is a business record, and the person who supplied the information for the composition of the record . . . cannot reasonably be expected (having regard to the time that has elapsed since he supplied the information and to all the other circumstances of the case) to recollect the matters dealt with in the information he supplied.’

[11] Ms Mitchell submitted that ‘it would be impossible for the composers of the certificates to recall all of the precise details if they gave evidence in court’.

[12] The difficulty with this argument is that we simply do not know whether that is so. A party wishing to adduce hearsay evidence under s 3(1)(b) must lay a sufficient evidential foundation from which the trial judge can reasonably infer that the requirements of the subsection are satisfied: see Fiefia v Department of Labour [1983] NZLR 704 (CA). No attempt was made in this case to establish an evidential foundation, for very good reason: the police were relying on s 146 of the Land Transport Act, little realising that it did not apply to this offence.

[13] I also note in passing that Mr Haskett, at his hearing before the justices, did dispute the admissibility of the certificates. When Constable Gaskell sought to produce a certificate of accuracy for the Hawk radar, Mr Haskett opposed its introduction. The justices did not give a ruling as to its admissibility. They said that they would determine its admissibility at the end of the case after each side had presented its submissions. They ultimately decided that the certificates were admissible. They did not give reasons for their conclusion. I do not need to consider, therefore, what the position might have been had hearsay evidence been tendered without objection: see in this regard R v Samuels [1962] NZLR 1036 (CA), R v Morgan [1976] 2 NZLR 61 (CA), and R v Tafiti CA 490/97 19 March 1998. See too Weinberg, “The consequences of failure to object to inadmissible evidence in criminal cases” (1978) 11 MULR 408.

Public documents

[14] At common law, public documents are admissible as an exception to the hearsay rule. The criteria for admissibility are:

[a] That the document was not created merely for a temporary purpose: see Mercer v Denne [1905] 2 Ch 538;

[b] That the document should be available for public inspection: see White v Taylor [1969] 1 Ch 150 at 155; Te Runanga O Muriwhenua Inc. v Attorney-General [1990] 2 NZLR 641 (CA).

[15] It may be that the certificates in this case meet those criteria. But the police still have the problem that the certificates, without more, do not establish the accuracy of the radar on the date of the alleged offence.

Common law presumption that mechanical instruments were in order

[16] At common law, there is a ‘presumption that mechanical instruments were in order when they were used’: see Cross on Evidence (NZ ed.) para 2.14. The leading New Zealand authority on this topic is Holt v Auckland City Council [1980] 2 NZLR 124. In that case, the Court of Appeal referred to Professor Wigmore’s classic work, The Science of Judicial Proof, and to his observation ‘that the correctness of the data obtainable from the use of instruments constructed on knowledge of scientific laws must depend on the correctness of the instrument in construction and the ability of the technical witness to use it’ (ibid at 127). Professor Wigmore suggested three propositions applicable to testimony based on the use of all such instruments. The Court of Appeal adopted those three propositions (ibid):

‘A. The type of apparatus purporting to be constructed on scientific principles must be accepted as dependable for the proposed purpose by the profession concerned in that branch of science or its related art. This can be evidenced by qualified expert testimony; or, if notorious, it will be judicially noticed by the judge without evidence.

B. The particular apparatus used by the witness must be one constructed according to an accepted type and must be in good condition for accurate work. This may be evidenced by a qualified expert.

C. The witness using the apparatus as the source of his testimony must be one qualified for its use by training and experience.’

[17] In the present case, there was no ‘qualified expert testimony’ in terms of proposition A. That is not surprising because the police had been relying on the statutory evidential presumption. For my part, however, I would have been prepared to find proposition A established on Professor Wigmore’s alternative basis. Speed-checking devices, such as radars, have been in existence for so long that judicial notice can surely be taken of their general dependability. Australian courts reached that conclusion as long ago as 1974 and 1980: see Zappia v Webb [1974] WAR 15 and Dunsmore v Elliott (1980) 26 SASR 496. Given the vintage of those cases, it would surely be ridiculous in 1999 not to come to a similar conclusion. In Ministry of Transport v Hughes [1991] 3 NZLR 325, Eichelbaum CJ was prepared to apply judicial notice to the general reliability of microwave speed detection devices given ‘the length of time for which [they had] been in use and accepted by the Courts in this country’ (ibid at 326).

[18] The problem in this case is that the police did not establish proposition B. There was no evidence from a qualified expert as to whether the particular radar used by the constables was one constructed according to an accepted type and was in good condition for accurate work. The absence of such evidence is no doubt once again explained by the police’s reliance on a statutory presumption as to the accuracy of speed-measuring devices. Such reliance is now accepted to have been misplaced.

[19] It may be that Ms Mitchell did not raise this issue because she appreciated that the police could not meet the Wigmore test. I did not seek further submissions from the parties on this issue because, in the end, it is not decisive. I certainly would not have decided this issue against the police without hearing from Ms Mitchell had the police’s success on this appeal hinged on this issue. But it does not. For reasons I shall give in the next section of this judgment, I find for Mr Haskett in any event on a different ground.

Breach of Bill of Rights

[20] Mr Haskett has always disputed that he was travelling in excess of the speed limit. Before the justices, he challenged the accuracy of the radar printout. Prior to his hearing in the District Court, he had diligently tried to obtain relevant documentary material from the police. He sought the information pursuant to the Official Information Act and his rights ‘to adequate time and facilities to prepare a defence’ and ‘a fair and public hearing’ guaranteed under ss 24(d) and 25(a) of the Bill of Rights. He wrote on 12 occasions to the police requesting disclosure. The letters were before the justices. He received only two replies. The police disclosed only part of the requested information. Some of the information he requested was undoubtedly irrelevant. (In saying that, I am not saying he may not have had a right to the information under the Official Information Act, but, even if obtained, it would not have been relevant to any conceivable legitimate matters in issue.) Some of the information sought, however, could well have been relevant. Included in that information would have been later certificates of accuracy of the radar. Suppose on its next check the particular radar had proved hopelessly inaccurate. That would have been powerful evidence for Mr Haskett’s submission that it was inaccurate on the day on which he was stopped. Mr Haskett was never able to explore that because the police failed or refused to meet relevant requests for pre-trial discovery.

[21] Where there has been a failure on the police’s part to make appropriate discovery, there are a number of remedies available to the court. Among the remedies available is in appropriate cases a dismissal of the prosecution for abuse of process or, on appeal, a quashing of any conviction or order made against the defendant. See, for example, Cooper v Ministry of Transport HC AK AP 225/92 2 October 1992 and Allen v Police (1998) 16 CRNZ 23. In the former, Mr Cooper had appealed against a conviction for speeding. His solicitor had made a request under the Official Information Act for all maintenance and repair records and other relevant documents in connection with the Hawk microwave device. The Ministry did not supply the information requested. Anderson J noted disquiet as to an uncooperative attitude in responding to the requests. He was ‘left with a sense of unease’ because in cases of this kind ‘relevant knowledge for testing the accuracy of prosecution evidence is entirely with the prosecution’. Accordingly, any failure to provide information ‘effectively negates a defendant’s opportunity to test the case against him or her’ (op. cit at p 4).

[22] Like Anderson J, I am left with a sense of unease. Mr Haskett was entitled to information which he was not given. He lost the opportunity to challenge the police case. His submissions as to the inadmissibility of much of the police evidence were not adequately considered by the justices. It is important to note that the presumption as to the reliability of radars, whether under statute, where applicable, or at common law, is always subject to rebuttal, but the defence cannot rebut the presumption by evidence to the contrary unless the defence is given relevant documentation when it is requested. Mr Haskett, like Mr Cooper, was denied the opportunity to test the case against him. The need for full police co-operation on pre-trial discovery is all the greater in cases where the police cannot rely on the statutory presumption.

[23] Nothing in this judgment should be construed as supporting or establishing a principle that dismissal of a prosecution is the only or even the presumptive remedy for a failure to make timely disclosure of material. Dismissal is just ‘one possible result’ of such a failure: see Williams J’s view in Police v Nimmo [1999] 3 NZLR 343 at 351, a view with which I agreed in Police v Keogh [2000] 1 NZLR 736 at para [84]. All the circumstances must be considered as to what is the appropriate response: see further R v O’Connor [1996] 2 WWR 153 (SCC).

Result

[24] I allow the appeal. I quash the penalty imposed on Mr Haskett and the order for costs.

[25] It is clearly undesirable that the police should have to rely on the common law presumption as to the accuracy of radars when bringing prosecutions under s 52 of the Transport Act 1962. Parliament should act swiftly to correct the legislative lacuna which has been revealed in this case. Ms Mitchell will no doubt ensure that a copy of this decision is given to the relevant personnel within the police.