K v Police HC Dunedin CRI 2009 412 37

[2009] NZHC 2310

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2009 412 37

K

Appellant

v

POLICE

Respondent

Hearing:         16 December 2009

Appearances: Appellant in Person

L Denton for Respondent

Judgment:      16 December 2009

ORAL JUDGMENT OF CHISHOLM J

[1]      This is an appeal against conviction for exceeding the 50 kph limit.   Mr K   was fined $510 and ordered to pay Court costs of $130.   Because it was alleged that his speed was 91 kph, more than 40 kph over the limit, he served a 28 day suspension.

[2]      Mr K   represented himself at the hearing before Justices of the Peace. The prosecution case was that on 3 October 2008 Mr K  ’s vehicle had been recorded  at  91  kph  by  a  Laser  device  operated  by  Constable  Churchill.    The constable said that he did not take his eyes off the car and that he was “100% sure”

that it was a blue Mazda.   His evidence was that the registration number of the

K V POLICE HC DUN CRI 2009 412 37  16 December 2009

vehicle was ACN274 and that the traffic was light.  Having detected the speeding vehicle Constable Churchill then contacted Constable Harris who was operating the chase vehicle.   Constable Harris then moved in behind the vehicle and ultimately stopped it.   He explained to Mr K   that he had been clocked at 91 kph.   His evidence was that the traffic at the time was medium.  As a result of Mr K  ’s protest he drew a diagram in an effort to explain to Mr K   where he had been identified.

[3]      Under cross-examination by Mr K   Constable Harris accepted that on 10

October 2008 he had provided a report which included:

“A silver Mazda motor vehicle registration ASN274 was detected by Constable

Churchill driving in excess of 90 kilometres an hour ...”.

The constable confirmed that this had been signed by him and that it was true and correct.

[4]      In his evidence Mr K   vehemently denied that his was the vehicle.  He claimed that it was a case of mistaken identity and that he had been driving within the speed limit.  His unchallenged evidence was that his vehicle was a black Mazda, registration number ACN274.   Mr K  ’s evidence was that the traffic was moderate.  He gave detailed evidence (with reference to photographs and a diagram drawn by Constable Harris) challenging the  contention that his vehicle was the offending vehicle.

[5]      Obviously the Justices of the Peace struggled with their decision.   Having noted that Mr K   had put a lot of preparation into his defence, they commented:

“[2]      As you may have gathered, we have had to debate long and hard on this case.   In view of the finding that the constable with the laser gun identified your vehicle at the time of locking on with the laser, tracked it to his position on the overhead bridge from where he recorded the registration number, he turned around and followed it as he was talking to Constable Harris who was in the car at the Carisbrook onramp, there is a clear identification of the offending vehicle from the time the laser locked on until the time you were stopped by Constable Harris.”

The Justices then noted that Mr K   had already suffered a 28 day instant disqualification and that there had been some confusion about the infringement fee. They accepted the evidence of the prosecution and found Mr K   guilty.

[6]      In support of his appeal Mr K   provided a detailed written submission running into 33 points.  The crux of the appeal is that the evidence of the prosecution witnesses was misleading and inaccurate.  Mr K   also emphasised discrepancies in the evidence, particularly in relation to the colour of the vehicle.

[7]      The prosecution must, of course, prove its case beyond reasonable doubt. There  is  no  obligation  on  a  defendant  to  prove  anything.    Where  there  is  an allegation of mistaken identity it is necessary to be particularly cautious.

[8]      On  the  face  of  the  decision  delivered  by  the  Justices  it  is  difficult  to determine the precise course that they followed in overcoming the patently obvious discrepancies as to the colour of the vehicle.  In some cases it might be sufficient for the Justices to effectively accept the prosecution evidence and reject the defence evidence:  R v Macpherson [1982] 1 NZLR 650 (CA) .  In my view this is not such a case and the conviction is unsafe.

[9]      There is unchallenged evidence from Mr K   that his car was black. Constable Churchill was 100% sure that the car that the was tracking was blue.  It is simply not  good  enough  to  dismiss  any such  discrepancy on  the  basis  that  the colours might be close.   Added to this, Constable Harris’s written note. which he confirmed was true and correct, made reference to a silver car and to a different plate number.  Again, it is not good enough to say that the difference in the plate number was minor and was probably a mistake.  Once the vehement denial of Mr K   is added to the mix, it is simply not possible to regard the conviction as safe.

[10]     Under those circumstances I will extend time for lodging the appeal (the appeal being out of time), allow the appeal and quash the conviction.  I might say that I have reached this conclusion despite Ms Denton’s valiant efforts to persuade me to the contrary.

Solicitors:           Crown Solicitor, Dunedin

Copy to:            The Appellant