Lipsham v Police

[2012] NZHC 1312

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-321 [2012] NZHC 1312

BETWEEN  RODNEY DAVID LIPSHAM Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         11 June 2012

Counsel:         Appellant in Person

K C Francis for Respondent

Judgment:      11 June 2012

(ORAL) JUDGMENT OF POTTER J

on appeal against infringement notice and fee

Solicitors:           Crown Solicitor, Auckland – [email protected]

Copy to:            R D Lipsham, 187 Jutland Road, Pukekohe

LIPSHAM V NEW ZEALAND POLICE HC AK CRI-2011-404-321 [11 June 2012]

[1]      Rodney Lipsham appeals against a decision of the District Court1 in which an infringement  offence  was  found  against  him  for  speeding,  namely  that  he  was driving at 135 kph in a 100 kph zone on 19 November 2010.   The infringement notice of $300 was reinstated by the Court and Mr Lipsham was ordered to pay costs of $30.67.

[2]      The background facts in summary are these.   At about 11.05 p.m. on 19

November 2010 Mr Lipsham was driving a motor vehicle in convoy with his son travelling northbound on State Highway at Bombay.  They were proceeding home from the Meremere race track.   Mr Lipsham’s vehicle was a Holden Monaro registration number ZZ6650.  It was being driven without working headlights, hence the process in which he drove in convoy with his son, Matthew.

[3]      The police case was that while travelling north on State Highway 1 near

Bombay, Mr Lipsham’s vehicle was observed by two police officers travelling at

135 kph.    Having  locked  that  speed  they  then  followed  the  appellant  towards Pukekohe and he was stopped at a road block.  Mr Lipsham denies that he exceeded the 100 kph speed limit and he questioned whether the police were in fact present on State Highway 1.

[4]      The matter came before Justices of the Peace Robinson and Wilson in the District Court at Pukekohe on 28 July 2011.  In their judgment they summarised the evidence of the two police officers.  In essence this was that they were parked on the side of the motorway north of Bombay.  They saw the appellant’s car and locked the speed of the car with their radar device at 135 kph.  They followed the appellant’s car and stopped Mr Lipsham some distance away.

[5]      The Justices of the Peace referred to Mr Lipsham’s evidence that he was not speeding, that he did not believe the Police were on the side of the motorway that night  and  they  referred  to  witnesses  who  gave  evidence  to  that  effect  for  the

appellant.  (Those witnesses were two sons of Mr Lipsham (aged 16 and 21 at the

1      New Zealand Police v Lipsham District Court Pukekohe CRI-2011-057-99, 28 July 2011.

time), another passenger in the vehicle and Matthew Lipsham’s girlfriend who was

travelling in his car).

[6]      The Justices of the Peace recorded that in situations where the police are operating radar equipment, to prove an infringement they must do three things:

(a)       They must provide a certificate of proficiency that they may operate the relevant radar equipment.

(b)They must provide a certificate of accuracy to show that the machine was properly calibrated at the relevant time.

(c)       They must provide a log book to show that the machine has been properly tested and operated that day.

[7]      The Justices of the Peace stated that the police had done those three things and accordingly they had the evidence of two policemen together with the essential evidence of the three things that must be proved.   They considered that evidence against the evidence given and called by Mr Lipsham.  They said they believed the two officers, that they found them credible witnesses.  They found the case of the prosecution had been proved to the standard of proof required.

[8]      On an appeal by way of rehearing, which is a matter that has been explained previously to Mr Lipsham at a pre-trial callover by Brewer J, the principles set out in the case of Austin, Nichols & Co Inc v Stichting Lodestar2   apply.   The Supreme Court said:3

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate Court, when where that opinion is an assessment of fact and degree and entails a value judgment.   If the appellate Court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[9]      However, the Supreme Court also relevantly said4:

The  appeal  Court  may  or  may  not  find  the  reasoning  of  the  tribunal persuasive  in  its  own  terms.    The  tribunal  may  have  had  a  particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important).  In such a case the appeal Court may rightly hesitate to conclude that findings of fact or fact and degree are wrong.  It may take the view that it has no basis for rejecting the reasoning of the tribunal appealed from and that its decision should stand.

[10]     In the District Court the police witnesses, Constable Arvidson5 and Constable Lafaele, gave evidence for the prosecution and were cross-examined in detail by Mr Lipsham.  Mr Lipsham gave evidence as did the witnesses to whom I have referred. The Justices of the Peace had the advantage of hearing and seeing all the witnesses give their evidence and be cross-examined and then they carried out the task they were required to do, of assessing the credibility of the witnesses, namely whether they believed them, and then reached their decision having determined the matter of credibility.

[11]     Mr Lipsham has presented written submissions dated 30 May 2012 and today he has presented oral submissions in a respectful way.  He starts from the position that he was not speeding, in his view.  He notes that he has maintained his innocence from the outset.  Essentially he says that the evidence of the police witnesses was inconsistent in some respects and there were discrepancies such that they should not have been believed by the Justices of the Peace.

[12]     In oral submissions he addressed what he described as a technical matter, namely  that  there  could  have  been  faults  with  the  device  such  that  it  did  not accurately record his speed or alternatively that it could have recorded the speed of a different vehicle.  In this respect he says that the device cannot discriminate between oncoming traffic and traffic travelling in the same direction, that the traffic was heavy at the time and he was boxed in a line of traffic and that it was very dark.

[13]     These of course are matters that needed to be addressed before the Justices of the Peace if they were to be relied on.  Mr Lipsham said he did not give evidence

about these matters in the District Court but Mr Francis for the Crown helpfully referred  to  passages  in  the  notes  of  evidence  where  Mr  Lipsham  certainly  did develop with both the police witnesses what can be described as technical aspects of their evidence.  He certainly had full opportunity to do so.

[14]     Mr Lipsham also emphasised that he was not attacking the police; simply he considered that he was not speeding and he had been wrongly found guilty of this infringement.   I accept his assurance although my reading of the evidence does suggest that Mr Lipsham appears to have reached a view that there was some sort of conspiracy by the police or some sort of vendetta under which they set out to get him.  There is nothing in the evidence that supports such an assertion and I reject it. I am therefore pleased to record that Mr Lipsham today was clear in his submissions before the Court that he was not attacking (to use his words) the police.

[15]     I have carefully considered the extensive notes of evidence in the District Court.   I agree there are some differences in recollection between the two police officers on matters of detail.   I also accept that in some cases the evidence might have been presented in a slightly confused way, particularly as to the chronology in which events happened.  However, I am satisfied that on the basis of the evidence before the District Court and given the assessment of the Justices of the Peace as to the credibility of the witnesses, namely that they believed and accepted the evidence of the two policemen which was an assessment fully open to them on the evidence, that the case was properly proved in the District Court.  There is no ground upon which this Court could or should properly uphold the appeal.

[16]     The appeal is therefore dismissed.