L v Police HC Auckland CRI-2006-404-381

[2007] NZHC 31

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-404-381

BETWEEN    L  Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         12 February 2007

Appearances: Appellant in person

Joshua Shaw for Respondent

Judgment:      12 February 2007

JUDGMENT OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Respondent

COPY: T L     , 34 Bath Street, Parnell, Auckland

L  V POLICE HC AK CRI-2006-404-381  12 February 2007

[1]      The appellant, Mr T  L     , appeals against a finding by Justices of the Peace following a defended hearing in the District Court at Manukau on 25 July 2006 that he committed the offence of driving his motorcycle at a speed exceeding 100 kph.   I note that this finding does not  constitute  a  conviction:  s 78A  Land Transport Act 1998.

[2]      The two witnesses at the hearing were a police officer, Constable Christopher Polglase, and Mr L     .  The officer’s evidence was that at about 8.25 am on 23 April 2005 he was driving an unmarked police car southbound on the southern motorway near Papatoetoe.  He observed a motorcycle ahead travelling considerably faster than the surrounding traffic.  In the officer’s words the motorcyclist ‘… was weaving throughout the lanes, overtaking the vehicles, using all three lanes available’.

[3]      Constable Polglase decided to pursue the motorcycle in an attempt to pace check its speed.  In simple terms a pace check is staying at a continuous and constant speed behind another vehicle or motorcycle over a certain or defined period and distance.   The officer had been with the Motorways Division of the New Zealand Police for about six months.  He had served a previous term of three to four months a year earlier.

[4]      The officer’s evidence was that it took him some time to catch up to the motorcycle due to the driver’s speed and the heavy traffic.  When he was within 100 metres he said that he drove his vehicle at a constant speed of 135 kph over a distance of at least 600 metres.   By then he was satisfied that Mr L     , who was driving the motorcycle, had committed the offence of driving at a speed in excess of

100 kph.

[5]      Mr L      challenged the infringement notice, as was his right.  At the hearing he  cross-examined  Constable  Polglase  with  care  and  courtesy  and  then  gave evidence himself.   The Justices, in a commendably careful decision, reviewed the relevant  evidence.    They accepted  the  officer’s  account  and  were  satisfied  that Mr L      was driving his motorcycle at about 135 kph over a distance of 600 metres. They found the charge proven and imposed a fine equal to the infringement fee of

$300.

[6]      In  argument  today  Mr L       challenges  the  reliability  and  veracity  of Constable Polglase’s evidence.  In a guarded way, just as he did before the Justices, Mr L      accepts that he may have been exceeding the speed limit.  But he says at the time he was wearing a loose jacket which in his experience would have turned into or had a wind-sail effect inhibiting any speed above 100 kph.  He says that it was simply impossible for him to be driving at a speed of 130 kph as alleged.  He says that the constable was inexperienced and unduly influenced by the sight of a red motorcycle travelling above the ambient speed.

[7]      With respect, I reject that submission.  The officer gave evidence which the Justices accepted.  They were satisfied that Constable Polglase followed Mr L      for a period of 20-25 seconds at the recorded speed.  A pace checking procedure is a satisfactory and acceptable means of proving the offence of travelling at an excessive speed.  In the absence of evidence that the speedometer was not reading accurately, the only question for the Justices was whether or not the officer’s account was reliable.  I accept the difficulties of maintaining a high speed and consistent eye on a speedometer at the same time, but once Constable Polglase said he was able to accurately effect both tasks the evidence was overwhelming.

[8]      Accordingly, I am satisfied that the Justices had a proper evidential basis for their finding and I dismiss the appeal. I record that, as before the Justices, Mr L      has advanced a novel consequential argument.  He acknowledges that the imposition of demerit points is a statutory process according to ss 88-91 Land Transport Act

1998.  Nevertheless, he says I should take the step of declaring that the Director of the Land Transport Safety Authority would be erring in law if he did impose demerit points assessed according to the Justices’ finding that he was driving at 135 kph.  He has not identified an express statutory power but submits I should act within my inherent jurisdiction.

[9]      With respect to Mr L     , he is requesting me to act arbitrarily and outside the scope of my lawful powers.  His remedy, if one is available, lies in an application for judicial review.  He would have to challenge the Director’s decision once made and prove that it was wrong in law.  A separate hearing would be required with different parties.  The difficulties facing such an application are obvious where the Director of

the Land Transport Safety Authority will be acting in accordance with a mandatory

statutory obligation.

Rhys Harrison J