L v Police HC Christchurch CRI 2008 409 112

[2008] NZHC 1549

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008 409 112

L

Appellant

v

POLICE

Respondent

Hearing:         2 October 2008

Appearances: Appellant in Person

D L Elsmore and K J Basire for Respondent

Judgment:      2 October 2008

ORAL JUDGMENT OF CHISHOLM J

[1]      This is an appeal against a conviction for exceeding 100 kilometres per hour. Mr L   was fined $80 and ordered to pay Court costs of $30.  Obviously he feels extremely keenly about  this  whole  matter,  and  he  has  advanced  comprehensive submissions in support of his appeal.

[2]      In the District Court the sole witness  for  the prosecution  was  Constable Thistol.  She said that she had recorded the appellant’s speed at 114 kph on a Stalker DSR speed detection device.  Her evidence was to the effect that she had operated the device in accordance with the police manual and current certificates as to the

accuracy of the speed detection device and as to the accuracy of the patrol car

L V POLICE HC CHCH CRI 2008 409 112  2 October 2008

speedometer were produced.   According to the constable the appellant had commented when he was stopped that he was not exceeding 109 kph (this is denied by the appellant).

[3]      The charge was strenuously defended by the appellant.  He cross-examined the  police  officer  at  great  length  with  reference,  amongst  other  things,  to  the operation of the Stalker speed detection device.  Before that Mr L   had raised with the Judge his concern about the refusal of the police to supply him with the manufacturer’s manual.  His belief is that the police had deliberately returned it to the manufacturer so that it would not be discoverable and they would not have to explain important differences between the police manual (which was before the Court) and the manufacturer’s manual.

[4]      Mr L   was the only witness for the defence.  His evidence was that at all relevant times he was travelling at under 100 kph.  He was aware of the presence of the police car from a considerable distance.  His radar detector signalled to him when the speed detecting device in the police car was activated.  Passengers in his car had confirmed to him at the time that he was travelling under the speed limit. Because he knew that he was travelling under the speed limit he did not find it necessary to reduce speed once he became aware that there was a police car in the vicinity.  It was his belief that the police radar unit was not operated properly or for some other reason there was interference with it.  These possibilities were explained by him in his evidence.

[5]      Underlying Mr L  ’s defence was an allegation that the police were deliberately withholding the manufacturer’s manual because they did not want differences between it and the police manual to be exposed.   The Judge sought clarification from Mr L   as to the allegation that he was levelling against the police.   Rightly or wrongly the Judge interpreted the situation as one where Mr L   was alleging a high level police conspiracy not to allow evidence about deficiencies in the operation of the Stalker DSR unit to be exposed.   Mr L   believes that this interpretation by the Judge prompted the Judge to change his attitude towards the defence case from that point in the hearing

District Court Decision

[6]      The Judge said that he was impressed by the police officer and accepted her evidence:

“I am satisfied that Constable Thistol, who impressed me with her professionalism and her experience, operated [the speed detecting device] in accordance with all of the known parameters contained in the operator’s guide and her general training with radar speed devices.”

He went on to describe the built-in checks and balances that he considered were incorporated within the system operated by the police and noted that the speedometer on the police vehicle and the radar unit had been recently checked and certified accurate.  He also noted that the speed recorded by the radar unit accorded with the police officer’s own observations “as a  trained  observer” as  to  the appellant’s speed.

[7]      While acknowledging that Mr L   may well be genuine in his belief that he was travelling at a slower speed, The Judge said that he was in “no  doubt whatsoever” that Mr L   was travelling at 114 kph and commented that the speedometer in Mr L  ’s vehicle might have been inaccurate.  When concluding his judgment the Judge said that he was faced with the evidence of “a trained observer in a patrol car with certified equipment against an untrained observer with an uncertified car and uncertified speed equipment” and that there was no doubt in his mind that Mr L   was speeding.

[8]      Several  grounds  of  appeal  have  been  advanced  by Mr  L  .    Before addressing those particular grounds it is important that I repeat that the role of an appellate Judge is comparatively narrow.  This is because the Judge in the District Court has the advantage of hearing and seeing the witnesses, an advantage that is not enjoyed by this Court.  Those matters have already been discussed with Mr L  .

First Ground Of Appeal

[9]      Mr  L    claims  that  the  police  simply  chose  to  get  rid  of  the manufacturer’s manual so that no-one could question the inconsistencies between it

and the police manual.   He believes that the Judge was wrong to accept the prosecutor’s argument that the police did not hold the manufacturer’s manual and were therefore under no obligation to provide it to Mr L   by way of discovery.

[10]     While I have no doubt about Mr L  ’s sincerity in advancing this ground, there is no basis on which the police could have been ordered by the Judge to discover a manual that was not in their possession.  As the Court of Appeal indicated in Attorney-General v District Court at Otahuhu 10 CRNZ 24:

“[29]   It is both elementary law and practical commonsense that no one can be compelled to disclose documents which are not in his or her possession or power.”

This ground of appeal fails.

Second Ground Of Appeal

[11]     After the Judge had indicated to Mr L   that the police could not be ordered to produce the manufacturer’s manual he gave Mr L   a choice as to whether or not he wanted to continue with the hearing.   Mr L   elected to continue,   apparently   on   the   basis   that   he   would   be   able   to   produce   the manufacturer’s  manual  himself  later  in  the  hearing  when  he  gave  evidence. However, it transpired that he was not allowed to do so.   Mr L  ’s second ground of appeal is on the basis that he should not have been required to proceed when he did not realise at the time of electing to proceed that he would not be able to produce the manufacturer’s manual at a later stage.

[12]     Unfortunately for Mr L  , he made the election to continue with the hearing and there is no basis on which I could rule that the Judge erred in principle or in any other respect when he accepted Mr L  ’s election to proceed.   This ground of appeal also fails.

Third Ground Of Appeal

[13]     The  next  ground  of  appeal  is  that  the  Judge  erred  by  not  accepting  Mr

L   as an expert witness in relation to the operation of radar devices.  I accept

that there was considerable evidence before the Judge about Mr L  ’s previous experience with speed detection devices both in the United States and also in New Zealand.   It also seems to be the case that Mr L   was accepted as an expert witness on a previous occasion in the District Court at Dunedin.

[14]     The  problem  with  this  ground  of  appeal  is  that  Mr  L    was  giving evidence as a witness in his own cause.   Thus he  was not in the conventional situation of an expert witness, one of the characteristics of such witnesses being that they are independent in the sense that they are not one of the parties.  In the end it was for the Judge to decide the weight that he should give to Mr L  ’s evidence and, to the extent that it conflicted with the evidence of Constable Thistol, whose evidence he should prefer.   Unfortunately for Mr L   the Judge preferred the constable’s evidence.

[15]     It is not the role of a High Court Judge to interfere with the weight given by a District Court Judge to the evidence of a witness or to interfere with a District Court Judge’s preference of one witness over another.  This is because, unlike the District Court Judge, the High Court Judge has not had the opportunity of hearing and seeing the witnesses and comparing their evidence.

Fourth Ground Of Appeal

[16]     This  concerns  Mr  L  ’s  evidence  about  the  “conspiracy”  and  the Judge’s refusal to admit a series of letters from the police to Mr L  .  In relation to the “conspiracy” the point seems to be that the Judge inaccurately construed Mr L  ’s allegation as being a “high level conspiracy” which Mr L   says does not accurately reflect what he was trying to say.  Mr L   said that he does not think that his challenge to the police could be accurately described as a “conspiracy” and he was not suggesting that it was at the highest level.  Rather, it was at a lower level.  He also explained that he was seeking to adduce the letters from the police to verify his complaint about the conduct of the police.

[17]     Regardless of whether Mr L  ’s allegation about the police was justified, the ultimate issue for the Judge was whether in this case Mr L  ’s speed had

been accurately recorded by the police radar unit and whether the unit had been properly operated by the police officer.  It is difficult to see how the conspiracy issue could have altered the outcome in this case.  In the end it was a matter of the Judge determining whether he accepted the evidence of the officer or Mr L  ’s evidence.  He chose the officer’s evidence.

[18]     It is also difficult to see how the outcome would have been any different if the letters had been admitted.  It seems that those letters confirmed that the police had returned the manufacturer’s manual.   This was already known by the Judge. Although Mr L   claims that there were sinister motives, again it was for the Judge to assess the two witnesses.  I cannot see any basis on which this Court can properly intervene.

Fifth Ground Of Appeal

[19]     This ground is perplexing.  Mr L   claims that during the course of the hearing the prosecuting police officer:

“… boldly and improperly stepped to the bench.  Without saying a word and without invitation he literally flipped a letter in front of the Judge.  The letter had never been entered and the Judge viewed it, looked at the Prosecutor, and nodded his head”.

Mr  L    complains  that  this  is  outside  the  conduct  that  could  be  properly expected and “undoubtedly prejudiced the case”.  As far as I can gather the letter that Mr L   claims was handed up was a letter to the police from the president of the company that manufacturers the radar device in question confirming that a copy of the manual was supplied to the New Zealand police in 2003 and subsequently returned to the manufacturers.

[20]     Ms Basire indicated that she had checked with the police prosecutor who denies that the events described by Mr L   took place.  There is no record on the Court file or in the Judge’s decision of the letter having been produced.

[21]     Given the conflict about what (if anything) happened, it is impossible for me to resolve what happened.  However, given that the issue of the “conspiracy” was on the table and that the letter related to that issue, it is difficult to see how the events

described by Mr L   could have altered the outcome.   Even if the letter was handed up, it seems likely that the Judge did not take any notice of it.

Sixth Ground Of Appeal

[22]     The  final  ground  is  that  the  Judge  erred  by  refusing  to  accept  the manufacturer’s manual into evidence when Mr L   sought to produce it during the course of his evidence.  According to the Judge’s decision, he refused to allow Mr L   to produce it because he had not given the police the requisite notice under s130 of the Evidence Act 2006 and the Judge was not prepared to waive that requirement.

[23]     Mr L   claims that the Judge was wrong in law and that in fact ss16, 18,

19 and 22 of the Evidence Act applied.   In particular he considers that it was a “business record” in terms of s16 and that s19 was triggered accordingly.  Given the circumstances Mr L   claims that the Judge should have dispensed with the notice requirements under s22 (or under s130 if it was the section that applied).

[24]     The problem with this ground of appeal is that whether s130 or the sections relied on by Mr Larson are applied, there is a notice requirement which was not complied with in this case.  Consequently the only way that the manual could have been admitted was by the Judge exercising his  discretion  to  waive  compliance. While I can understand Mr L  ’s frustration about the matter, when it comes to the exercising of a discretion this Court is only allowed to interfere on extremely narrow grounds.   I am afraid that this is not a situation where I am prepared to interfere with the Judge’s exercise of discretion.  Given that the underlying objective of the evidence was to show that there was some form of “conspiracy” on the part of the police, it was perfectly open to the Judge to conclude that it would be wrong to waive the notice requirements because the police were entitled to be forewarned and to have an opportunity to challenge the document that Mr L   was seeking to adduce (which he had downloaded from the internet).

Outcome

[25]     So, despite your best endeavours, I am afraid, Mr L  , having worked my way through the various matters, this is not a case where I can allow the appeal. I know that your frustration will remain but this matter does have to come to an end and this is the end.  The appeal is dismissed.

Solicitors:         Crown Solicitor, Christchurch

Copy to:           The Appellant