Hayat v Police

[2015] NZHC 795

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2015-443-001 [2015] NZHC 795

BETWEEN

ASHIK HAYAT

Plaintiff

AND

NEW ZEALAND POLICE Defendant

Hearing:	20 April 2015
Counsel:	M S Boyd for Appellant A W M Britton for Respondent
Judgment:	22 April 2015

JUDGMENT OF HEATH J

This judgment was delivered by me on 22 April 2015 at 4.00pm pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, New Plymouth
Counsel:

J C Hannam, New Plymouth (M Boyd)

HAYAT v NEW ZEALAND POLICE [2015] NZHC 795 [22 April 2015]

Introduction

[1]      On 11 April 2014, Dr Hayat, who is a consultant nephrologist employed by the Taranaki District Health Board, was driving from New Plymouth to Hamilton for a meeting with other specialists.  The road conditions were poor, due to inclement weather, and traffic was heavy throughout the journey.  It seems there were a number of roadworks along the way.

[2]      Dr Hayat was charged with driving a motor vehicle on State Highway 3 at a speed which, having regard to all of the circumstances, might have been dangerous to the public.1     He entered a plea of guilty to the charge but no conviction was recorded at that time because he had signalled an application would be made for a discharge without conviction.2

[3]      Dr Hayat’s application came before Judge Courtney, in the District Court at New Plymouth, on 23 September 2014.  The District Court Judge was not satisfied that the entry of a conviction would be out of all proportion to the gravity of the offence.3   Accordingly, Dr Hayat was convicted, ordered to pay a fine of $850, and disqualified from holding or obtaining a driver licence for a period of six months from that date.4

[4]      Dr Hayat seeks an extension of time to appeal against conviction.5    If time were extended, the appeal would be pursued on two grounds.   The first alleges a “miscarriage of justice”6  on the basis of erroneous reliance by the Police in the summary of facts (on the basis of which Dr Hayat pleaded guilty) on Global Positioning System (GPS) data purporting to establish the speeds at which he was travelling en route to Hamilton.  The second is a direct challenge to the exercise of the  District  Court  Judge’s  discretion  to  refuse  to  grant  a  discharge  without

conviction.

1      Land Transport Act 1998, s 45(1)(b).

2      Sentencing Act 2002, s 106.

3      Ibid, s 107.

4      Police v Hayat DC New Plymouth CRI-2014-073-133, 23 September 2014 at para [19].

5      Criminal Procedure Act 2011, ss 231(3) and 232. An appeal against a refusal to grant discharge without conviction is treated as an appeal against conviction rather than one against sentence: see Byrt v Police [2015] NZCA 41 at para [10].

6      This term is defined by s 232(4) of the Criminal Procedure Act 2011.

Summary of facts

[5]      On 11 April 2014, Dr Hayat drove a Toyota stationwagon owned by the Taranaki District Health Board to travel to his meeting in Hamilton.  A GPS location device had been installed into that vehicle.  As well as providing information about location, the device registers the speed at which the vehicle is travelling.  A message is sent back to the District Health Board when a vehicle exceeds the speed limit.  As a result, information is conveyed both about the speed at which the vehicle is travelling and the location at which the speed is registered.

[6]      Dr Hayat left New Plymouth at about 8.30am.  The meeting was due to begin at 12.30pm.  A complaint was made to Police about Dr Hayat’s driving after he had passed roadworks on State Highway 3, south of Piopio.  When an officer spoke to Dr Hayat in Te Kuiti, he denied any wrongdoing, at that point.

[7]      At 11.54am, Dr Hayat was again stopped.   This was, he told me in oral evidence,7 in the vicinity of Cambridge.  On this occasion, Dr Hayat was issued with an infringement notice for exceeding the speed limit.   His speed was recorded at

122 kilometres per hour. After the event, Dr Hayat learnt that the Duke and Duchess of Cambridge were visiting the town that day.  He now believes that their presence caused some of the traffic delays.

[8]      When the GPS data was ultimately checked, it was found that the vehicle had been  travelling  in  excess  of  120  kilometres  per  hour  on  18  separate  occasions between New Plymouth and Te Kuiti. It is fair to say that some of those driving incidents were close in time and distance.

[9]      Dr Hayat has not previously appeared before the Court on any criminal or driving charges.

7      As no affidavit had been filed in support of the application to extend the time to appeal, I

allowed Dr Hayat to give oral evidence on that application.

Application to extend time for appeal

[10]     A preliminary question arises.  Dr Hayat did not file an appeal until 6 January

2015.   Section 231(2) of the Criminal Procedure Act 2011 requires any notice of appeal  to  be  filed  within  20  working  days  after  the  date  of  sentence,  or  the conviction  appealed.    The  relevant  starting  date  is  23  September  2015,  when sentence was imposed.  Section 231(3) confers on the first appeal court the power to extend that time.  Thus, Dr Hayat must persuade me that this is an appropriate case to extend time.

[11]     No criteria are set out in s 231(3) to guide the Court in determining whether an extension of time should be granted.  The exercise of any discretion of this type must have the interests of justice at the forefront.  That principle has been confirmed by the Court of Appeal; see in particular R v Knight8 and R v Lee.9

[12]     In  Lee,  the  Court  of Appeal  adopted  the  approach  in  Knight,  citing  the following passages from the Court’s judgment in that case:10

… The touchstone  is  the interests  of justice in  the  particular  case. The discretion must be exercised in accordance with the policy underlying the legislative provisions. The feature which provides the reason for the time- limit for appealing set by s 388(1) is the interest of society in the final determination of litigation. That necessarily carries through as a powerful consideration in determining whether leave should be granted under s 388(2) to appeal out of time. The overall interests of justice in a particular case may call for balancing the wider interest of society in the finality of decisions against the interest of the individual applicant in having the conviction reviewed. Also relevant is ``the respect which is traditionally shown for the liberty of the subject'' (R v Hawkins [1997] 1 Cr App R 234 at p 239).

These considerations are of particular importance when a later decision of a superior Court shows that the decision from which it is sought to appeal was or might have been wrongly decided. As Somers J, speaking for the Court in Stowers v Auckland City Council (Court of Appeal, Wellington, CA 67/82, 2

September 1983), put the point: ``In such circumstances the mere assertion of the exposed error without more is not enough. The applicant for leave

must show special circumstances – circumstances that is to say which are

particular to the case and which lead to the conclusion that justice requires that leave be given'' (p 4).

…

8      R v Knight [1998] 1 NZLR 583 (CA) at 587.

9      R v Lee [2006] 3 NZLR 42 (CA).

10     R v Knight [1998] 1 NZLR 583 (CA) at 587–588.

[13]     Following the Knight test, Dr Hayat must demonstrate some good reason why he should be permitted to appeal out of time.  More than a mere assertion of error is required.    A Court  hearing  a  first  appeal  must  be  satisfied  that  there  is  some circumstance that suggests that justice requires leave to be given.  A balancing test is then carried out by reference to all relevant factors, the aim being to ascertain where the interests of justice lie, both as regards the would-be appellant and society at

large.11

[14]     In my view, this is not an appropriate case to grant an extension of time to appeal.  I have reached that conclusion on the basis of evidence given by Dr Hayat as to his reasons for entering pleas of guilty, the need for special circumstances when an appeal against conviction is brought following a plea of guilty and the difficulties that  Dr  Hayat  faces  in  challenging  the  exercise  of  the  District  Court  Judge’s discretion not to grant a discharge without conviction.  I explain why I have reached that conclusion by reference to each of those factors.

The reasons why a plea of guilty was entered

[15]     First, I deal with the circumstances in which the plea of guilty was entered. In his oral evidence, Dr Hayat emphasised advice received from his counsel about the high probative value of the GPS data in establishing speed.  He asserts that had he not received that advice he would not have pleaded guilty.

[16]    Dr Hayat’s concerns about the accuracy of the GPS data arises out of information that came to his attention after the plea had been entered.  This was in the form of an article on the Stuff.co.nz website in which it was announced that the Police did not regard such evidence as a reliable means of proving a driver’s speed. Ms Boyd, for Dr Hayat, supported that view by reference to an earlier decision of the

District Court that was not put before Judge Courtney: Police v Cooper.12    In the

course of that judgment, Judge Connell observed that the question whether GPS data

was admissible evidence was “far from resolved” and that the “technology has not been accepted by the Courts in any general application”.13

11     R v Lee [2006] 3 NZLR 42 (CA) at para [106].

12     Police v Cooper DC Napier CRI-2012-041-9, 7 December 2012 (Judge Connell).

13     Ibid, at paras [26] and [29].

[17]     Even assuming that GPS data may not necessarily be a reliable means of establishing speed for the purpose of a criminal charge, it does not follow that it cannot be used; for example, to indicate relevant speed so that a defendant can assess whether he or she considers that the information matches the way they were driving on a particular day.   In this case, Dr Hayat knew that the charge was driving at a dangerous speed, not speeding of itself.  While, as he said in oral evidence, he relied on the GPS data to found his plea, he must also accept responsibility for assessing the reliability of that data against his knowledge of the way in which he drove on the day in question.

[18]     When he sought a discharge without conviction, Dr Hayat filed an affidavit in support.  Although he now complains about the reliability of GPS data on which the Police  relied  in  the  summary  of  facts,  in  an  affidavit  filed  in  support  of  his application for discharge without conviction he deposed that, in an endeavour to get to an important meeting involving peer reviewing promptly, he drove quickly to make up time lost earlier through both weather conditions and heavy traffic. Specifically, he said:

12.There is no doubt I rushed to catch up, and travelled significantly over the speed limit.   I agree that the fastest I have travelled is approximately 132 kilometres per hour.

[19]     In oral evidence, Dr Hayat attempted to persuade me that his reason for pleading guilty was based solely on his understanding of the reliability of the GPS data.   I do not accept that evidence.   It is contrary to what Dr Hayat said when seeking a discharge without conviction in the District Court.

Entry of a guilty plea

[20]     A second difficulty that Dr Hayat faces in challenging the conviction on the ground that the GPS data is unreliable is that he entered a plea of guilty.  While it is understandable that he referred, in the first instance, to the data contained within the vehicle’s computer system, he was the person driving and was fully aware of the approximate speed at which he had been driving throughout his journey to Hamilton.

His “agreement” (on oath) that he drove at speeds up to 132 kilometres per hour evidences that.14

[21]     The law is clear that an appeal against conviction cannot be brought when a plea of guilty has been entered, save in the type of “exceptional” circumstances to which the Court of Appeal refer in R v Le Page.15    Delivering the judgment of the Court of Appeal, Panckhurst J expressed the general principle as follows:

[16] Despite the understanding which Mr Le Page and his counsel … had at the time the pleas were entered and at the time of sentencing, it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned. These principles find expression in numerous decisions of this Court, of which R v Stretch [1982] 1 NZLR 225 and R v Ripia [1985] 1 NZLR 122 are examples.

(my emphasis)

The merits of the proposed appeal

[22]     An appeal against a decision not to discharge without conviction is an appeal against the exercise of a discretion.  Such appeals can only succeed if an appellate court is satisfied that the Judge took into account irrelevant factors, failed to take into account relevant factors, erred in law, or was plainly wrong.

[23]     While there is some doubt about the reliability of GPS data for determining speeds and the Police do not rely exclusively on evidence of that type to support its prosecutions, Dr Hayat’s evidence confirms the way in which he drove might have been dangerous to the public.  The more so, given that the driving took place in poor conditions with heavy traffic.

[24]     The prospects that Dr Hayat could, on full analysis, challenge successfully the exercise of the District Court Judge’s discretion are low, to say the least.

14     See the extract from Dr Hayat’s affidavit in support of his application for a discharge without conviction set out at para [18] above.

15     R v Le Page [2005] 2 NZLR 845 (CA), at paras [16]–[19].

Result

[25]     For those reasons, the application to extend time to appeal is dismissed.  That being so, there is no appeal before the Court to determine.

P R Heath J

Delivered at 4.00pm on 22 April 2015