Jefferies v Police HC Wellington CRI 2010-485-112

[2011] NZHC 124

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-112

KEITH IAN JEFFERIES

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 February 2011

Counsel:         J A Tannahill for Applicant

S Barr for Respondent

Judgment:      18 February 2011

ORAL JUDGMENT OF RONALD YOUNG J

[1]      Mr Jefferies in his application for leave to appeal to the Court of Appeal says I made three errors of law when I dismissed his appeal against conviction for talking on a cell phone while driving.

[2]      To get leave an appellant must show there is a question of law involved which by reason of its general or public importance or for any other reason ought to be submitted to the Court of Appeal for decision.[1]

KEITH IAN JEFFERIES V NEW ZEALAND POLICE HC WN CRI 2010-485-112 18 February 2011

[1] Summary Proceedings Act, s 140.

[3]      As to the first ground of appeal this relates to what I said at paragraph [15] of my Judgment of 7 December 2010:

[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.

[4]      The ground of appeal is that when I used the word “probably” I applied the balance of probabilities test rather than the higher standard of beyond reasonable doubt.   The submission goes on to identify why, on the facts,  I was  wrong to conclude that what the constable saw was a mobile phone.

[5]      The full quote of paragraph [15] above illustrates the error of the appellant’s submission.  I did not apply the balance of probabilities test.  As I noted if the only evidence had been the evidence of the appellant holding a device to his ear it would not by itself have been sufficient for conviction.  But as I identified there was other evidence which amply established the offence together with that evidence.   This ground of appeal is essentially an attack on factual conclusions and in any event does not accurately identify the decision I gave.

[6]      The second ground of appeal is as follows:

The Judge made an error of law in dismissing the appeal by drawing a correlation between the device “probably” being a mobile telephone and the evidence of the appellant’s lips moving and subsequently reached the conclusion that the evidence was sufficient to satisfy the beyond reasonable doubt test.

[7]      Expressed in that way it is clear that this is not a question of law.   The assertion is that the evidence was not sufficient to establish the crime beyond reasonable doubt.  In any event the ground of appeal does not accurately identify my conclusions.

[8]      In addition to paragraph [15] I also said at paragraph [16]:

[16]      The  constable  observed  the  appellant’s  lips  moving,  apparently

talking while holding this device to his ear.

[9]      The third ground of appeal relates to paragraphs [18],  [19] and [20] of my

Judgment: There, I said:

[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.

[10]     The appellant’s case is based on sub (1) of r 7.3A.  Rule 7.3A(1) provides as follows:

(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).

[11]     It is clear, therefore, that there are a number of situations where a driver is prohibited from using a mobile phone some of which do not include making or receiving a telephone call.  My observations in paragraph [20] were in the context of the claim by counsel that before a Judge could convict prosecution must establish a mobile phone history to prove calls were being made and received at the time of the alleged offence.  I rejected that approach.

[12]     As I said at paragraph [17] the evidence in total was sufficient to satisfy beyond reasonable doubt that what the constable observed was Mr Jefferies talking on a mobile phone.  That would be sufficient for a conviction under r 7.3A(1)(a), (e) or (f).  Once again, therefore, the issue is not a question of law but a question of fact. In any event if it is a question of law it is misapprehended.

[13]     Finally even if any of the issues raised where questions of law they are entirely dependent on the individual facts of this case and raise no issue of general or public importance nor is there any other compelling reason to give leave.  I therefore

refuse leave.

Ronald Young J

Solicitors:

J A Tannahill, Barrister, Jefferies Raizis, PO Box 10 641, Wellington, email:  [email protected]
I R Murray, Luke Cunningham & Clere, PO Box 10 357, Wellington, email:  [email protected]