Loh v Police - [2019] NZHC 1904

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-40

[2019] NZHC 1904

BETWEEN
ALEXIS KAYE LOH

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 6 August 2019

Counsel:

A K Loh in person M L Paish for Crown

Judgment:

6 August 2019

JUDGMENT OF CHURCHMAN J

Introduction

[1] The applicant, Ms Alexis Loh, seeks leave for a second appeal against conviction to the High Court against a decision of Judge Sygrove in the Porirua District Court dated 18 April 2019.1 She does so on the following grounds:

(a)that the Judge erred in his assessment to such an extent that a miscarriage of justice has occurred; and

(b)that the Judge was biased in favour of the Police.

[2] The respondent opposes the application, contending that no matter of general or public importance arises, nor will a miscarriage of justice occur if the appeal is not

1 New Zealand Police v Loh [2019] NZDC 9753.

LOH v NEW ZEALAND POLICE [2019] NZHC 1904 [6 August 2019]

heard. The respondent submits that the Judge correctly applied the provisions of s 232 of the Criminal Procedure Act 2011 (the CPA) and carefully considered the evidence.

Background

[3] Early in the evening of 8 April 2018, Ms Loh was driving north on a section of State Highway 1 where a temporary speed limit of 70 km/h has been in place for about two years. She was pulled over for driving at excess speed, the Police officer informing her that she had been driving 30 kilometres over the temporary speed limit. He showed Ms Loh her speed on the radar, they spoke, and he issued her with a speeding ticket. An infringement notice was subsequently issued dated 13 April 2018 and was posted to Ms Loh.

[4] Ms Loh challenged this infringement notice and appeared before two Justices of the Peace on 31 October 2018. They noted that the charge was a strict liability offence and found that Ms Loh did exceed the temporary speed limit and that the charge had been proven beyond reasonable doubt.2 However, in doing so, they incorrectly stated that Ms Loh, having inspected the radar equipment, accepted that she was travelling at 100 km/h. Rather, her evidence was that she accepted she had been advised by the officer that she had been travelling 30 km/h over the posted speed limit, but she did not accept that she was travelling at that speed.

[5] She appealed this decision on the basis that evidential requirements were not met, evidence was improperly obtained, and the minimum standards of criminal procedure were breached. She argued that, accordingly, there had been a miscarriage of justice. Her claims were not accepted by the District Court Judge and her appeal was dismissed.

District Court decision

[6] In terms of evidential requirements not having been met, the Judge noted that, in the decision of the Justices of the Peace, they said that exhibits were produced to the Court, including the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Loh v Police

Details

AGLC: Loh v Police [2019] NZHC 1904
Case: [2019] NZHC 1904
Decision Date: 6 August 2019

CaseChat Overview and Summary

The case of Loh v Police involved an application by Ms Alexis Loh for leave for a second appeal against her conviction. Ms Loh sought leave to appeal to the High Court against a decision of the District Court Judge Sygrove dated 18 April 2019, contending that the Judge erred in his assessment to such an extent that a miscarriage of justice had occurred, and that the Judge was biased in favour of the Police. The respondent opposed the application, contending that no matter of general or public importance arose, nor would a miscarriage of justice occur if the appeal was not heard.

The legal issues before the Court were whether the appeal involved a matter of general or public importance, or whether a miscarriage of justice would occur if the appeal was not heard. The Court considered Ms Loh's arguments that evidential requirements were not met, evidence was improperly obtained, and the minimum standards of criminal procedure were breached, resulting in a miscarriage of justice. The Court also considered Ms Loh's argument that the Judge was biased in favour of the Police.

The Court found that the Judge did not err in saying that Ms Loh had accepted she had been speeding, and that not every error amounted to a miscarriage. The Court accepted that there was sufficient evidence to establish that the infringement offence had occurred. The Court found that there was no evidence to suggest that the Judge was biased, and that he had given Ms Loh the opportunity to present her arguments, considered them, and where there was contrasting evidence, preferred that of the experienced Police officer.

The Court concluded that no matter of general or public importance arose, nor did there appear to have been any miscarriage of justice. The high threshold set by s 237 of the CPA had not been met. Accordingly, the application for leave for a second appeal was declined.

Orders