J v Police HC Wellington CRI 2010-485-112

[2010] NZHC 2159

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-112

J

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 December 2010

Counsel:         J A Tannahill for Appellant

S Barr for Respondent

Judgment:      7 December 2010

ORAL JUDGMENT OF RONALD YOUNG J (Appeal against conviction)

Introduction

[1]      On 8 April 2010 Constable Cranson said he saw Mr J   talking on a mobile phone held up to his ear while driving.  As a result Mr J   was charged with an offence contrary to the Land Transport (Road User) Amendment Rule 2009,

7.3A that he used a mobile phone while driving.

J V NEW ZEALAND POLICE HC WN CRI 2010-485-112  7 December 2010

[2]      There were originally two grounds of appeal:

a)       firstly, the prosecution had not proved the case beyond reasonable doubt; and

b)secondly, the “alleged mobile phone” did not fall within the definition of  a  mobile  phone  under  s 6  of  the  Land  Transport  (Road  User) Amendment Rule 2009.

[3]      The appellant appeared before two Justices of the Peace with respect to the charge.   He elected neither to give nor to call evidence.   The two Justices of the Peace concluded the police constable who gave evidence was accurate and reliable about what he saw.  They were satisfied that what the constable had seen was the appellant over a period of time using his cell phone while driving his car.  And so they convicted him.

[4]      At the hearing today the appellant abandoned the second ground of appeal relating to the definition of a mobile phone.

The facts

[5]      The evidence of the police constable can be summarised in this way.   The constable said that while driving in an unmarked police car he was stopped at a red light.  He saw a vehicle in a lane to his left and slightly ahead of him.  The driver was holding a device to his ear.  The device was about two to three inches long and an inch wide.  The constable was able to observe this for 20 to 30 seconds before the light turned green and both vehicles headed down Featherston Street.  The driver of the other vehicle was the appellant, Mr J  .

[6]      As  the  vehicles   proceeded  down   Featherston  Street  Mr J  ,   the constable said, was holding the device to his ear.   At the next set of lights the vehicles again stopped.  The constable then pulled up directly behind Mr J  ’ vehicle.  He said he could see Mr J  ’ lips moving in Mr J  ’ rear vision mirror.  He still had the device to his ear.

[7]      The constable then signalled to Mr J   to pull over.   He did so.   The constable went up to the vehicle and saw what he believed was a cell phone between Mr J    thighs.    Mr J    denied  using  a  cell phone  but  was  handed  an infringement notice.

Proof beyond reasonable doubt

[8]      Rule 7.3A provides:

(1)      A driver must not, while driving a vehicle, –

(a)use  a  mobile  phone  to  make,  receive,  or  terminate  a telephone call; or

(b)      use a mobile phone to create, send, or read a text message;

or

(c)      use a mobile phone to create, send, or read an email; or

(d)use  a    mobile  phone  to  create,  send,  or  review  a  video message; or

(e)use a mobile phone to communicate in a way similar to a way described in any of paragraphs (b) to (d); or

(f)use a mobile phone in a way other than a way described in any of paragraphs (a) to (e).

(1A)    Subclause (1) is overridden by subclauses (2) to (7).

(2)       An enforcement officer may, while driving a vehicle, use a mobile phone to make, receive, or terminate a telephone call if the officer is making, receiving, or terminating the call in the execution of the officer’s duty.

(3)      A driver may, while driving a vehicle, use a mobile phone if –

(a)      the driver is using the phone to make a 111 or *555 call; and

(b)      it is unsafe or impracticable for the driver to stop and park the vehicle to make the call.

(4)A driver may, while driving a vehicle, use a mobile phone to make, receive, or terminate a telephone call if the phone does not require the driver to hold or manipulate it to make, receive, or terminate the call.

(5)      Revoked.

(6)A driver may, while driving a vehicle, use a mobile phone to make, receive, or terminate a telephone call if the vehicle has stopped for a reason other than the normal starting and stopping of vehicles in a flow of traffic.

(7)A driver may, while driving a vehicle, use a mobile phone in a way described in subclause (1)(a) or (f), if both the following apply:

(a)      the phone is secured in a mounting fixed to the vehicle; and

(b)if the driver manipulates or looks at the phone, he or she does so infrequently and briefly.

[9]      To return to the grounds of challenge by the appellant.  The first point raised by the appellant in support of the claim that the case was not proved is that when the constable said he saw a mobile telephone between the appellant’s thighs “there was no evidence that the phone was unconnected and there may have been a connection to a connection in the car”.  An attached earpiece or mouthpiece may not be a mobile phone.

[10]     These   allegations   of   course   were   never   put   to   the   constable   in cross-examination.  Nor is there any evidence that the phone was connected in any way.

[11]     The second issue said to support inadequate proof is that the appellant says:

Accordingly, if the facts of this case were varied and the appellant had placed   his   mobile   telephone   between   his   legs   and   the   telephone automatically answered incoming calls this would not amount to an offence under this section.  If this were the case, it would be perfectly consistent with this scenario for an observer to notice the appellants’ lips moving in the rear vision mirror.

[12]     The appellant acknowledges this would require a variation of the facts.  This case falls to be decided on the actual facts of the case, not some theoretical variation.

[13]     The third issue relates to the vehicle’s rear vision mirror.  Counsel asserts that if the vehicle’s rear vision mirror was “properly adjusted” it would  not have been possible for the constable to see Mr J   lips from behind when following his vehicle.   Once again there is simply no evidence to support this submission.   The constable’s evidence, accepted by the Justices of the Peace, was that he could see

Mr J   lips moving.   There is nothing in the evidence that I have read to suggest that the constable was untruthful about that.

[14]     Finally  the  appellant  says  that  “it  is  simply  not  conclusive  or  beyond reasonable  doubt  to  conclude  that  even  if  the  officer  observes  the  driver’s  lips moving that an offence is being committed under r 7.3A”.

[15]     In this case there was ample evidence to justify a conviction.   Firstly, the constable saw the appellant holding a device to his ear while driving which by its description was probably a mobile telephone.  By itself that might not be sufficient for a conviction.  But the evidence here went much further.

[16]     The constable observed the appellant’s lips moving, apparently talking while holding this device to his ear.

[17]     When the constable stopped the appellant he found what he believed was a mobile telephone in the car between the appellant’s thighs.  This evidence in total is easily  sufficient  to  satisfy,  beyond  reasonable  doubt,  that  what  the  constable observed was Mr J   talking of a mobile phone.

[18]     One further matter is raised by counsel.   Mr Tannahill suggested that to establish that the appellant had been talking on the mobile phone the police were obliged to call evidence to establish the mobile phone call history to prove that calls were being made and received at the time of the alleged offence related to that phone.

[19]     Counsel for the appellant submitted:

Anything short of this procedure could produce convictions that may be uncertain which is contrary to the fundamental principles of the justice system.

[20]     There is no rule that requires this evidence to establish such an offence.  Each case will depend on its own facts.  Here, as I have said, there is ample evidence to justify the Justices’ of the Peace conclusion.   In any event the prosecution do not have to establish that the defendant actually received or sent a call for conviction.

[21]     For the reasons given, therefore, the appeal against conviction is dismissed.

Ronald Young J

Solicitors:

J A Tannahill, Barrister, J   Raizis, PO Box 10 641, Wellington, email: [email protected]

S Barr, Luke Cunningham & Clere, PO Box 10357, Wellington, email: [email protected]