Jackson v Police
[2017] NZHC 37
•26 January 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2016-409-000093 [2017] NZHC 37
BETWEEN TIMOTHY JOHN JACKSON
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: (On the papers) Appearances:
Appellant in person
B Hawes for RespondentJudgment:
26 January 2017
JUDGMENT OF DUNNINGHAM J
[1] Mr Timothy Jackson appeals his conviction under s 35(1)(b) of the Land Transport Act 1952 for driving a motor vehicle on a road at a speed which, having regard to the circumstances of the case, might have been dangerous to the public.
[2] Mr Jackson has advanced the following three grounds of appeal:
(a) there was insufficient evidence of identity of the motor cycle depicted in the photograph taken by the speed camera and formally produced in evidence, and
(b)the evidence of Senior Constable Douglas Jackson who spoke to, and photographed, the appellant at the BP petrol station in Kaikoura, was improperly obtained and therefore inadmissible; and
(c) even if the Court is satisfied with the identity evidence, there was insufficient evidence to convict the appellant of dangerous driving.
JACKSON v NEW ZEALAND POLICE [2017] NZHC 37 [26 January 2017]
[3] A further issue has arisen since the appeal was filed and that is, because of an unexpected technical problem, there is no recording of the hearing available for transcription. The District Court Judge has provided his own notes of the hearing but they are, understandably, not a complete record of the hearing. The appellant says this alone warrants a rehearing, but that is disputed by the respondent. I consider this issue after I discuss the main grounds of appeal, as the need for a rehearing based on the lack of a record of the hearing will turn on whether there is a material dispute over what occurred during the hearing which could affect the outcome of the appeal.
Background
[3] On Sunday 20 December 2015, a police speed camera vehicle was operating a speed camera site, in an 80 kilometre per hour area on State Highway 1, south of Kaikoura. The vehicle was parked about 200 metres south of the Omihi Camping Ground, near Oraro.
[4] At 1.46 pm, a motorcycle was checked travelling at 145 kilometres per hour as it was heading north towards Kaikoura. In the District Court, Judge Saunders was satisfied that the speed camera operator, Mr Hoskins, was able to read the registration number on the computer screen and transmit it to a duty officer, Constable Douglas Jackson. Constable Jackson noted the registration number in his notebook and commenced enquiries by visiting likely stopping points in Kaikoura.
[5] At 2.06 pm, the Constable found the appellant at the BP station with the motorcycle carrying the registration details he had been provided with. When questioned about the alleged speeding, the appellant explained “I must have been passing someone”. Constable Jackson then took a statement from the appellant and photographed the appellant’s motorcycle and his attire. The Constable then drew the appellant’s attention to defects on the motorcycle, one of which related to a matter on which a warrant of fitness could be declined, and he issued a compliance notice.
[6] In a subsequently signed brief of evidence, there were two letters of the registration number plate transposed (Constable Jackson typed in A6WYZ instead of A6WZY). Judge Saunders accepted that it was a technical error and the officer was not under any misapprehension about what he was looking for.
District Court decision
[7] In convicting the appellant, Judge Saunders was satisfied that the photograph taken of the rider speeding was the same rider located at the BP station. His Honour held:1
…I am satisfied that without any digital enhancement, it is possible to determine the registration place (sic) number and letters as “A6WZY.” It is also evidence (sic) on the photo that the rider of the motor cycle had a pack on his back, a black helmet and a white pair of calf length boots.
[8] His Honour also held that when Constable Jackson approached the appellant at the BP station and took photographs of his motorcycle, that did not constitute unlawful detention and therefore the evidence obtained was admissible.
[9] The Judge accepted that the fact the officer took photos of the appellant for evidential purposes, and to compare with any speed camera photos which he had not seen prior to speaking with the appellant, did not raise any doubt about whether the officer was sure about the information provided by Mr Hoskins.
[10] In relation to whether the speed, having regard to the circumstances of the case, might have been dangerous to the public, the Judge first acknowledged that speed, in and of itself, does not automatically constitute dangerous driving. However, he then identified the following factors that might make the speed of the vehicle dangerous to the public:
(a) a sealed state highway with a gazetted 80 kilometres per hour speed limit;
(b)medium to high traffic use on that day with over 2,000 vehicles recorded over the period the detection unit was in place;
(c) the proximity of the camping ground entrance just north of the detection vehicle;
(d)an electronic speed sign operating close by reminding drivers of the speed;
(e) the likelihood of pedestrians and vehicles given the time of day and holiday period;
(f) the weather conditions, being dry, that increased the likelihood of pedestrians and cyclists in that area.
[11] The Judge found that there was a “distinct and reasonable possibility that the defendant would not have been able to safely and appropriately deal with any emergency situation, such as a pedestrian crossing the highway to or from the camp ground”. The motorcyclist also created a danger for a motorist “trying to exit the camp ground given the limited visibility and the expectation that any opposing vehicle would be approaching at less than 100 kilometres per hour”. The Judge therefore concluded that the element of reasonable likelihood of danger was made out.
[12] Having satisfied himself that the charge was proved beyond reasonable doubt, the appellant was convicted. He was sentenced on the same day to pay a fine of $800, plus Court cost of $130. He was also disqualified from driving for six months.
The legal principles governing this appeal
[13] Section 229 of the Criminal Procedure Act 2011 provides a right of appeal against conviction. In accordance with ss 232(2)(b) and (c) of the Act, the Court must allow the appeal in the case of a Judge-alone trial if satisfied that miscarriage of
justice occurred because the Judge erred in his or her assessment of the evidence or for any other reason.
[14] Section 232(4) defines a miscarriage of justice as any error, irregularity or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected; or resulted in an unfair trial or trial that was a nullity.
[15] The legal principles which apply when there is no adequate record of the trial were set out by the Court of Appeal in Kingi v R:2
The mere fact that there is no record (or no adequate record) of the trial is not in itself:
(a) ground for finding miscarriage of justice has occurred;
(b) before an appellant may claim that result, he or she must be able to show an irregularity in the trial or a misdirection in the summing up; and
(c) however, where there is reason to suspect something has gone wrong in the trial, the absence or insufficiency of a proper transcript may be material.
Analysis
Did the Court err in finding that the identity evidence was sufficient to identify the appellant?
[16] Judge Saunders accepted that while the number plate of the motor cycle was not particularly clear in the speed camera photograph included in the photograph booklet, from a further enlarged photograph (the second image) produced from the computer record, without digital enhancement, it was possible to determine the registration plate number and letters as“A6WZY”. It was also evident from the photograph in the booklet that the rider of the motorcycle had a pack on his back, a black helmet and a pair of white calf length boots.
[17] In relation to the second image, the appellant submits that it was:
(a) not disclosed in the course of routine pre-trial disclosure;
(b)not the same as the image supplied in disclosure following a written request in the days preceding the trial for the exact image the prosecution proposed using at trial and producing as an exhibit, and
(c) not produced at trial as an exhibit; and
(d)not the subject of any evidence about the way it was created, other than self-evidently appearing to be an enlarged and higher quality copy of the exhibited photo; and
(e) it amounted to inadmissible hearsay.
[18] The Crown accepts that the second image was obtained and disclosed at “a relatively late stage”. However, the Crown notes that the appellant knew that a photograph would be presented at the trial to show the motorcycle was travelling at
145 kilometres per hour. The Crown submits that the enhanced image was merely a better version of the same image as the police had already disclosed to the appellant.
[19] The rules of disclosure in a criminal proceeding are governed by the Criminal
Disclosure Act 2008. Section 34 provides:
34 Undisclosed information
(1) This section applies if, at the hearing or trial of a defendant, the court is satisfied that—
(a) evidence sought to be adduced by a party is, or is based on, information that should have been disclosed to the other party under this Act; and
(b) that information was not disclosed. (2) The court may—
(a) exclude the evidence; or
(b) with or without requiring the evidence to be disclosed, adjourn the hearing or trial; or
(c) admit the evidence if it is in the interests of justice to do so.
(3) The court—
(a) must not order the exclusion of evidence sought to be adduced by the defendant (whether of an alibi, as expert evidence, or otherwise) if it appears to the court that the defendant was not given notice in accordance with this Act of the requirements of this Act; but
(b) if paragraph (a) applies, must adjourn the hearing if the prosecution requests an adjournment.
(4) Subject to subsection (3), subsection (2) does not limit the powers of a court under any other enactment or rule of law to deal with any failure by a party to comply with the directions of the court under this Act.
[20] Therefore, if either party seeks to adduce evidence that is, or is based on, information that should have been disclosed but was not, the Court may exclude the evidence, adjourn the trial or admit the evidence if it is in the interest of justice to do so. The appellant’s right to have all relevant information disclosed before trial is also affirmed in s 24 of the New Zealand Bill of Rights Act 1990 which requires everyone charged with an offence to be informed promptly and provided with the details of the nature and cause of the charge.
[21] As a matter of proper procedure, the second image, from which it was possible to read the registration details of the motorbike, should have been disclosed to the appellant in the normal disclosure process in advance of the hearing. It should also have been formally produced as an exhibit to replace the poor quality image included in the photo booklet. If the conviction turned on this evidence it cannot be said that the second image was before the court and there would have been an error in the trial that affected its outcome.
[22] However, even without the second image, I am satisfied that the photograph produced in the photograph booklet, combined with the evidence provided by the two prosecution witnesses, was sufficient to identify the rider as the appellant. The motorcycle, backpack, black helmet and white calf length boots which helped identify the appellant, are visible in the photograph booklet image. Furthermore,
when Mr Hoskins contacted Constable Jackson and provided the description of the offender and his motorcycle, it matched the photographs that Constable Jackson took at the petrol station.
[23] Even more importantly, Mr Hoskins said when he enlarged the image on his screen in the van, he could see the registration details and it was those details which he passed on to Constable Jackson, who then spoke to the appellant when he was stopped in Kaikoura. Based on that evidence, the Judge made a clear, and reasonable, finding that Mr Hoskins was able to read the number from the photo on his computer screen3. That evidence is, in my view, compelling evidence to connect the motorcycle which was captured speeding by the speed camera operator, with the motorcycle that Constable Jackson subsequently apprehended. It cannot reasonably
be suggested that it was a mere coincidence for Mr Hoskins to provide a registration number to Constable Jackson that exactly matched the appellant’s registration number, and for the photographs taken by the Constable which fitted the description of the speeding rider to match the image taken by the speed camera which was not seen by the Constable prior to taking of the photos.
[24] The appellant also raises concerns about the absence of a transcript of the hearing, so that the details of the appellant’s challenge to Mr Hoskins’ evidence during cross-examination cannot be confirmed. However, even if I accept the substance of the appellant’s cross-examination of Mr Hoskins, which is set out in the appellant’s submissions, that does not impeach the clear evidence given by Mr Hoskins that he saw the registration details on the computer image before him, and relayed those to Constable Jackson. The suggestion by the appellant that Mr Hoskins “memorised the registration details from information that was later given to him” is completely contradicted by the fact Constable Jackson recorded the registration details given to him by Mr Hoskins and used those to locate the motorcycle. I therefore do not consider that the absence of a transcript means that this is a case where there was a potential miscarriage of justice that can only be resolved by directing the matter to be reheard.
Was Constable Jackson’s interaction with the appellant at the Kaikoura BP service
station, an unlawful detention?
[25] The appellant’s claim that he was unlawfully detained, and therefore the evidence of the photographs taken by Constable Jackson should be inadmissible, is not developed in submissions. The appellant simply asserts that “the officer detained the appellant – the appellant submits unlawfully – and obtained photographs of the appellant’s vehicle to compare with the speed camera image”. It appears that this submission is an extension of the submission that there was not reliable evidence of the identity of the vehicle in the speed camera photograph, making the subsequent photographing of the bike an unlawful attempt to “subsequently bolster such identification evidence”.
[26] However, as Judge Saunders noted, the officer did have the power to detain the driver of a motor vehicle while he established the identity of the appellant and inspected the motorcycle for any defects. This power is provided for under s114 of the Land Transport Act 1998. While it appears the Constable did tell the appellant he had the power to arrest him, that was no more than a reiteration of his statutory powers and the Judge’s notes record that the appellant conceded he would comply with what was required.
[27] To be unlawfully detained, so that evidence obtained during that period is subject to s 30 of the Evidence Act, there would need to be something more than the exchange described. As was said in R v Casey:4
Whether s 23(1)(a) NZBORA is engaged depends initially on whether the stopping amounts to a detention..[and]…a transitory stopping for the purpose of questioning a driver at the road side does not amount to a detention…
[28] There is nothing to suggest that the appellant was not free to go after the officer had lawfully questioned the appellant, checked the identity of the vehicle (including photographing it), inspected it for defects, and issued the ticket and compliance notice, so I do not consider that he was unlawfully detained. The Judge came to the same finding and I would not disturb it.
[29] This ground of appeal also fails.
Did the circumstances of the offending justify a finding of dangerous driving?
[30] As an alternative defence, the appellant submits that the manner in which he rode his bike did not breach s 35(1)(b) of the Land Transport Act because it was not dangerous.
[31] The appellant acknowledges that cases on dangerous driving are few and far between,5 but cites Rayner v Police as authority for the applicable legal test as follows:6
[25] The authors of Brookers Law of Transportation give a helpful summary of what is required to justify a dangerous driving conviction. There must be an objectively dangerous situation, caused by some fault on the driver’s part. The author provided the following comment:
“Fault” does not necessarily involve deliberate misconduct or recklessness, or an element of moral blame. An inexperienced or incompetent driver who makes every effort to drive carefully is at fault when he or she falls below the care and skill that a competent and careful driver would exercise in the circumstances. A slight fault, a momentary lapse, or one that would normally have no danger arising from it will suffice. The fault need not be the sole cause of the dangerous situation, but it must be an operating cause: Stratford v MOT [1992] 1 NZLR 486; (1991) 7 CRNZ 501. Such a fault will often be sufficiently proved as an inference from the facts. If a driver seeks to avoid that inference by proving some special fact relevant to the question of fault, he or she may not be precluded from seeking to do so: R v Gosney [1971] RTR 321, at p325 per Megaw LJ.
If a competent driver would react to a sudden emergency in the same manner as the accused did, then a conviction for dangerous driving cannot be sustained: Transport Ministry v McIntosh [1974] 1 NZLR
142. The driver must be proved to have driven with knowledge of the circumstances which made the driving dangerous, but need not have directed his or her mind to the danger: Edmonds v Police [1970] NZLR 267.
[26] An offence occurs if it is proven that the driver fell below the standard of care expected of a reasonable and competent driver. Dangerous driving may be proved by pointing to a single dangerous act which is proven beyond reasonable doubt. Alternatively, it may be proved by drawing an
5 Presumably because the charges laid are often non-contentious and defendants usually plead guilty at the earliest convenience.
6 Rayner v Police [2014] NZHC 2857.
inference of dangerous driving from proved facts where the inference is so strong as to admit of no other conclusion. An act is dangerous if injury occurs or it is probable that it will occur. A dangerous driving offence is not proved solely by proof of speed. The Court must be satisfied that the speed might have been dangerous to the public or to a person.
(citations omitted generally)
[32] To that I would add that the principles as to when speed will contribute to a finding that there is dangerous driving are well settled and were summarised by Cooper J in Broderick v Police where he said:7
[14] Speed alone is insufficient to establish potential for danger; rather, the speed has to be looked at in the context of all the circumstances. The necessary element of danger may be the result of speed, the difference between the actual and the authorised speed, visibility, the state of traffic, the number and location of other users of the road and its condition, the lighting and any public works placed in the road, the condition of the driver and the condition of the vehicle.
[33] In summary, the appellant’s submission on this issue is that:
(a) the evidence establishes that, at the time of the excessive speed, there was no one else present on the road;
(b)there was no evidence of pedestrians or motorists entering or exiting the camping ground entrance which was 200 metres to the north of where the detection unit was parked that day, nor that the appellant’s vehicle was travelling at 145km/hr, or in fact at any speed, at or near that entrance way;
(c) the appellant gave evidence to say he remembered that stretch of road and was familiar with it from many previous trips both in cars and on motorcycles;
(d)his evidence was that the coastal traffic was moderate to light and certainly lighter than he had expected that day;
(e) he was the only witness to give any evidence about traffic in the particular area, other than Mr Hoskins who said that traffic was “heavy” with the judge noting his evidence that there were
2000 vehicle movements recorded that day during the period the detection unit was in place.8
[34] Notwithstanding these submissions, I do not consider that Judge Saunders erred in his decision to classify the driving as dangerous. While speed in and of itself is not solely determinative, the text of s 35(1)(b) of the Land Transport Act states that it is an offence where, having regard to all the circumstances, the speed or manner in which the offender drives or causes a motor vehicle to be driven, endangers the public.
[35] The factors identified by Judge Saunders, as outlined at [10] above, were all relevant to the probable danger of the appellant speeding at 145 km/hr in that area. These included the fact that the speed limit on that section of road was reduced to
80kmh (meaning the appellant was travelling 65kmh over the speed limit considered appropriate in that area), there was a camping ground entrance just 200 metres north of where the speeding camera was operating, and that, being the summer holiday season, there was an increased chance of pedestrians and other vehicles on the road.
[36] I do not accept the appellant’s submission that the evidence did not establish the speed at or near the camping ground entranceway. The unit was sufficiently proximate to that entranceway to establish that risk. I also do not consider the fact that no other person or vehicle is visible on the road at the time the speed camera recorded him speeding detracts from the judge’s assessment. The question was one of risk and the judge was entitled to take into account risk factors present in the area at the time and whether driving at that speed, in that environment, reached a threshold of being dangerous. This included the empirical evidence provided by Mr Hoskins, which the judge accepted in preference to that given by the appellant, which said that the traffic was heavy that day, with about 2000 vehicles driving past the speed camera while he was operating the unit.
[37] For all these reasons I am satisfied there was no error or irregularity in the hearing which created a real risk that the outcome of the trial was affected and the appeal is dismissed.
[38] For the avoidance of doubt, the sentence was not challenged. However, a stay of enforcement was granted and the period of disqualification was suspended, pending the determination of this appeal. That stay is now lifted and the period of disqualification is to commence at 12.00 am on 27 January 2017.
Solicitors:
Raymond Donnelly & Co., Christchurch
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