L v Police HC Palmerston North CRI-2008-454-55

[2009] NZHC 112

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2008-454-55

L

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 February 2009

Counsel:         Appellant in person

B D Vanderkolk for Respondent

Judgment:      12 February 2009 at 4pm

I direct the Registrar to endorse this judgment with a delivery time of 4pm on the

12th day of February 2009.

RESERVED JUDGMENT OF MACKENZIE J

[1]      The appellant was, on 23 October 2008, following a defended hearing before Justices of the Peace in the District Court at Feilding, convicted and fined on a charge of exceeding the  100km  per  hour  speed  limit.    He  appeals  against  that

conviction.

L V NZ POLICE HC PMN CRI-2008-454-55  12 February 2009

[2]      On 5 March 2008, the appellant was travelling towards Palmerston North on State Highway 3 near Awahuri.  Sergeant Fraser, an experienced police officer, was driving a patrol car in the opposite direction.  The patrol car was fitted with a Stalker DSR radar device which was in ‘hold’ mode.   When he noticed the appellant’s vehicle approaching at what he thought was an excessive speed, Sergeant Fraser pushed the transmit button to turn the unit on.  He looked at the speed on the radar device showing for the oncoming vehicle which he saw was 118kph.  He pushed the

‘lock’ button, which locks the speed at which the device is recording the speed of the target vehicle at the point of locking.  At that point it was locked at 117kph.  The device  also  locks  the  speed  of  the  patrol  car  at  that  point  in  time,  which  was displayed as 99kph.  Sergeant Fraser immediately compared the 99kph shown with the speed recorded on the vehicle’s speedometer and his evidence was that it was the same speed within 2kph, that being the variance shown on the testing of the speedometer of which the Sergeant gave evidence.

[3]      The appellant gave evidence and said that he had in his vehicle a GPS unit. He gave evidence that the maximum speed recorded by the GPS, as sighted by him at the particular time, was 104kph.   He said that that meant that since leaving Palmerston North that morning, travelling to Bulls, spending time in Bulls and then travelling back again, the vehicle on those two legs of the trip had not exceeded at any time 104kph.  He said that the GPS had a documented margin of error of about plus or minus 3kph.

[4]      At the hearing the appellant explored fully in cross examination, both of Sergeant Fraser  and  of  the  police  expert  who  gave  evidence  in  relation  to  the accuracy and testing of the radar device, a number of issues relating to the accuracy of  the  reading  obtained  and  factors  which  might  influence  that  accuracy.    Of particular relevance, and the principal basis of the present appeal, is the influence of a possible shadowing effect.  The essence of that is that because the radar device is installed in a moving vehicle, the obtaining of an accurate reading of the speed of a target vehicle is dependent upon there being also an accurate reading of the speed of the patrol vehicle.  The radar device obtains the reading of the patrol car speed by means of a radar signal from the road ahead of the patrol car.  The essence of the

appellant’s contention is that if the signal from which the speed of the patrol car is recorded is received not from the road ahead of the vehicle but from another vehicle travelling ahead of the patrol car, the device will under record the speed of the patrol car.   It is for that reason that the speed “locked in” for the patrol car must be compared with the speed shown on the patrol car speedometer.  If the two are not the same (within margins of tolerance), then the reading of the speed of the target vehicle will not be reliable.

[5]      This  issue  was  explored  in  some  detail.    The  Justices  found  that  the procedures and processes for ensuring the Stalker DSR is accurate and the requirements  for  maintenance  and  compliance  with  the  police  standards  and protocols had been met.   They held that the GPS in the Landcruiser could not be guaranteed to be accurate.  They noted that the defendant contested the accuracy of the reading, in particular, because of the possible shadowing effect.  They held that the essential element was exceeding the speed limit and, based on the evidence presented, the Court found the case proved.

[6]      On this appeal, the appellant relies particularly on the proposition that the speed of the patrol car, as shown on the radar device, was not crossed checked against  the  speedometer  in  accordance  with  the  required  processes.    Sergeant Fraser’s evidence, as I have set it out, was that he first locked in the speed, and then immediately  checked  the  vehicle’s  speedometer.    Mr L    submits  that  the checking of the vehicle speed should have been carried out prior to locking in the speed on the radar device.  He relies upon descriptions of the process of obtaining radar verification in the NZ Police Calibration Unit Speed Detection Operators Module.  The most relevant passage reads:

Radar verification

There are three parts to radar verification:

1.the initial reading is consistent with the operator’s visual observation and operator-estimated speed

2.        a steady target reading

3.        readings consistent with visual observation and audio tone

4.        ground speed readings confirmed by patrol speedometer

When the operator is satisfied the target vehicle is producing the correct reading they should lock the reading and take the appropriate enforcement action.  It is not always possible to lock the target vehicle’s speed.  However, failure to lock the speed will not prevent normal enforcement action being taken.

[7]      That   document   does   not   purport   to   contain   procedures   which   must necessarily be followed, nor does it purport to establish a strict order in which the steps must be carried out, as Mr L   contends.  It is obvious that the comparison between the speed on the radar device and the speed on the speedometer must be made immediately, to avoid any opportunity for a change in the actual speed of the patrol car.   The passage which I have set out does not prescribe a strict order in which the steps must be taken.  The actions to be taken prior to “locking” the reading appear directed towards establishing that an offence may have been committed so as to justify the step of “locking” the reading.  They are not directed to the evidential issues which may arise at trial after the reading has been locked and enforcement action taken.   There is in law no requirement that the officer must check the speedometer  before  locking  in  the  radar  device.    The  natural  sequence,  in  the absence of a clear direction to the contrary in the operating instructions, would seem to be to lock in the speed on the radar device, and then to check that the speedometer is showing the same reading.  Sergeant Fraser’s evidence is that is what he did here. His  evidence  sufficiently  establishes  the  cross  check  between  the  radar  device reading and the patrol car speedometer.

[8]      Mr L   also relies on some evidence that there may have been a truck and trailer unit in front of the patrol car.  Sergeant Fraser’s evidence was that he did not  recall  that  there  was  anything  travelling  in  front  of  him.     Under  cross examination, when that proposition was put to him, he said that he could not recall being behind a truck.  He said that he was travelling at 100kph and if he had been behind a truck doing that speed he would have stopped it for speeding.  The Justices were entitled to prefer that evidence to Mr L  ’s evidence that the patrol car had been following a truck.  The Justices were also able to make a factual finding that they preferred the evidence of the speed record from the radar detector to that from the GPS in the appellant’s vehicle.

[9]      The appellant refers to Cunningham v Police HC AK CRI-2007-404-322 28

October 2008, in which it was held that if there is a reasonable doubt as to whether the beam which monitors patrol car speed was correctly monitoring the static ground in front of the vehicle, then the charge will not be proved.   That is undoubtedly correct.    This  is  a  question  of  fact.    I  do  not  consider  that  the  evidence  here necessarily raises a reasonable doubt.   The proposition inherent in the Justices’ findings, that a reasonable doubt did not exist, was fully open to them.

[10]     In the Notice of Appeal, the appellant submits that the hearing was conducted in a manner that was unfair and prejudicially affected the outcome.   No oral submissions were directed to this aspect.   Having considered the transcript, I am satisfied that the conduct of the hearing was entirely proper.   The appellant also submits that the Court did not adequately provide the reasons for its decision.  The judgment of the Justices, though brief, sufficiently addressed all of the relevant issues.  The question was essentially one of fact and the reasons make sufficiently clear the basis for the decision of the Justices in this regard.

[11]     The appellant in the Notice of Appeal also submits that an order should not have been entered against him because there was no mens rea or negligence or had the offence been committed it could only have been the result of a genuine mistake. This ground, not the subject of additional oral submissions, must also fail. The offence is not one in respect of which mens rea must be established.

[12]     For these reasons, the appeal is dismissed.  Costs are reserved.

“A D MacKenzie J”

Solicitors:         Crown Solicitor, Palmerston North for Respondent