J v Police HC Rotorua CRI-2010-463-59

[2010] NZHC 2252

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-463-59

J

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 December 2010

Appearances: Appellant in person

Ms N Tahana for Respondent

Judgment:      14 December 2010

(ORAL) JUDGMENT OF LANG J [on appeal against conviction]

Solicitors:

Crown Solicitor, Rotorua
Copy to:

Mr M J  , 808 Acacia Bay Road, Taupo

J V NEW ZEALAND POLICE HC ROT CRI-2010-463-59 14 December 2010

[1]      On the morning of 25 November 2009 Mr J   was driving an Aston Martin motor vehicle on State Highway 1 near Atiamuri.  Whilst doing so he was followed for some distance by a police officer in an unmarked car.   The officer ultimately turned on his flashing lights and pulled Mr J   over.  The officer told Mr J   that he had been exceeding the 100 kilometre per hour speed limit applicable to the area.

[2]      It would be fair to say that Mr J   was not happy at being followed by the police officer, and made a comment to him about the colour of the fluorescent jacket he was wearing.  This probably led the officer to take a less than favourable view of Mr J  .

[3]      The officer wrote out an infringement notice in which he recorded that Mr J   had been travelling at 17 kilometres an hour greater than the permissible speed limit.  Mr J   says that the officer refused to allow him to see the readout on the radar device and, in fact, he closed the window of his vehicle to prevent Mr J   from looking at it.

[4]      After a convoluted series of hearings and re-hearings in the District Court, the

Justices of the Peace fined Mr J   $120 and ordered him to pay Court costs of

$130.  He now appeals to this Court against the Justices’ decision.

[5]      The  principal  argument  that  Mr  J    advances  on  appeal  is  that  the infringement notice was defective because the spelling of the name of his car was wrong, and the alleged speed is indecipherable.

[6]      The first submission arises out of the fact that the officer has spelled the make of Mr J  ’ car as being “Auston Martin” rather than “Aston Martin”.  There is no substance to this submission.  The make of the car is not an essential ingredient of the charge.

[7]      The issue relating to the alleged speed has more substance.   Mr J   has presented the Court with a copy of the infringement notice showing that the alleged speed has indeed been altered to 117 kilometres per hour from another speed.  Mr

J   contends that the speed originally recorded on the notice was 100 kilometres per hour.  He accepts that the officer has written in another box on the form that Mr J   has exceeded the 100 kilometre speed limit by 17 kilometres per hour.   He submits, however, that the officer probably filled that box in after he had already altered the alleged speed to 117 kilometres per hour from 100 kilometres an hour.

[8]      It is not possible to determine how and why the alteration occurred.  What is important is whether or not the prosecution were ever in a position to prove that Mr J   had been travelling at 117 kilometres per hour.  On this issue the prosecution was entitled to rely on the evidence of the police officer, who has confirmed on oath the correctness of a summary of facts that states that Mr J   was the driver of a motor vehicle that was checked by radar travelling at 117 kilometres per hour on 25

November 2009.

[9]      The prosecution can also rely on a calibration certificate confirming that the radar device had been checked within the prescribed period prior to 25 November

2009, and found to be in good working order.   That being the case, there is a presumption that any readout produced by the device is accurate.

[10]     That evidence would be sufficient, in my view, to enable the prosecution to prove the charge against Mr J   regardless of any alteration to the infringement notice.  For that reason, even if I was to remit the proceeding to the District Court for re-hearing, the prosecution would inevitably succeed.

[11]     I do not propose to go into the arguments that Mr J   relates to his denial of a fair hearing in the District Court.  I am satisfied for the reasons I have given that the prosecution would succeed regardless of those matters.

[12]     Mr J   appears to realistically accept that this is the case.  He has brought the present appeal on a point of principle.  He feels strongly about the fact that the infringement notice was altered, and about the fact that the officer denied him the ability to view the readout on the device for himself.

[13]     Although I have some sympathy with Mr J  , at least in relation to the alteration of the speed on the infringement notice, I am satisfied that the prosecution was soundly based and that if it was remitted for re-hearing, the result would be the same.

[14]     For these reasons the appeal is dismissed. [15] I make no order as to costs.

Lang J