Loh v Police
[2019] NZHC 1904
•6 August 2019
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 radar logbook, certificate of the radar device, daily testing
2 New Zealand Police v Loh DC Porirua CRN-18091105348, 5 November 2018 at [12] and [14].
schedule of the radar, the officer’s certificate of competency, and a copy of the NZTA approved traffic management plan for the area.3
[7] As to the evidence having been improperly obtained, it was noted that Ms Loh took issue with the vehicle used having been an unmarked car and argued that the radar device did not identify her vehicle as being the one driving in excess of the limit, saying that there were other vehicles around at the time.4 The Judge noted, though, that the officer had been quite certain in his evidence that Ms Loh’s vehicle was the only one which could have activated his radar device and concluded that “because he is an experienced officer, [he] would not say that if it was not correct”.5
[8] With regard to the conduct of the Justices of the Peace, while Ms Loh complained that they interrupted her continuously, the Judge states that the sergeant before him on that day told him she had no recollection of such behaviour.6
[9] A review of the transcript of the hearing before the JPs shows that Ms Loh was questioned by the JPs about the relevance of some of her questions during her cross- examination of Sgt Vautier and asked some questions of clarification but there was nothing that could be accurately described as “continuous interruption”. She was also questioned by the JPs at the end of her evidence-in-chief but was not interrupted during the giving of her evidence.
[10] In determining whether there had been a miscarriage of justice, the Judge had this to say of the Justices of the Peace:
[13] Justices of the Peace are not trained lawyers or Judges. Justices of the Peace are responsible members of society who give up their time to hear cases that are at the lower end of severity so far as the criminal justice system is concerned. They are laypeople who have a good handle on people who give evidence. They are senior members of society.
[11] The Judge found nothing in their decision to indicate that there had been an unfair trial or that the trial was a nullity.
3 New Zealand Police v Loh, above n 1, at [4].
4 At [5].
5 At [6].
6 At [9].
[12]The appeal was dismissed.
Relevant law
[13] This application is made pursuant to s 237 of the CPA which provides as follows:
237 Right of appeal against determination of first appeal court
(1)A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.
(2)The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[14] In McAllister v R, it was confirmed that the threshold set by s 237 is a high one.7 The test under the first limb of s 237(2) will, for example, be met where the proposed appeal gives rise to an issue of “general principle or general importance in the administration of the criminal law by the Courts”.8 The question must have broad application beyond the circumstances of the particular case.9 The threshold under the miscarriage of justice limb is similarly high and not every error will give rise to a miscarriage.10
Discussion
[15] Ms Loh, in her written submissions did not submit that a question of general or public importance arose, but in her oral submissions claimed this is so. While this matter is clearly of importance to Ms Loh, I have not been able to identify any legal question of general or public importance that would justify leave being granted for a second appeal.
7 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
8 At [36], quoting Keenan v R [2005] NZSC 63 at [5].
9 At [36].
10 At [38].
[16] Ms Loh also submits that a miscarriage of justice will occur if leave is not granted. She takes issue with aspects of the evidence and further argues that the Judge on the first appeal was biased.
Improperly obtained evidence
[17] The applicant has three concerns around evidence that she says was improperly obtained. First, she notes that the Judge said that she had accepted that she was travelling at 100 km/h after having inspected the radar equipment, basing this on the decision of the Justices of the Peace where they took her having looked at the radar equipment speed detector to mean that she must, therefore, accept that she was driving at that speed. She says that she had consistently questioned the validity of this assumption throughout the process.
[18] The Judge did err in saying that Ms Loh had accepted she had been speeding but, as Ms Paish for the respondent submitted, not every error amounts to a miscarriage11 and in light of all the other evidence before the Court, the error in this case did not create a real risk that the outcome of the trial was affected. The facts of the case were thoroughly traversed before the Justices of the Peace who were presented with sufficient evidence that the infringement offence had taken place. The Police officer had given evidence of locking his radar on to Ms Loh’s vehicle and obtaining a reading of a speed of 100 km/h. He also specifically confirmed that his radar beam could not have picked up any other vehicle.12
[19] Ms Loh gave evidence that she was unaware of the 70 km/h temporary speed restriction on this section of the motorway. She also acknowledged being shown the radar screen and seeing the numbers 70 and 100 displayed on it. The police officer gave evidence that the 100 km/h displayed on the radar was recorded in the temporary restricted speed zone. The JPs were entitled to accept that evidence, as was the District Court Judge on appeal.
11 McAllister v R, above n 8, at [38].
12 Police v Loh CRI-2018-091-1226, notes of evidence of hearing before JPs, p 22 line 31 to p 23 line 3.
[20] Secondly, Ms Loh argues that the exhibits presented to the Court were insufficient to prove the infringement offence had occurred. However, the sufficiency of the evidence was thoroughly traversed in the first appeal and a second appeal should not be used as an opportunity to revisit the same material.
[21] Finally, Ms Loh argues that the Police officer failed to adhere to practice notes regarding cautioning a person during questioning and recording an admission where there was none. She says that her agreeing to have a look at the radar when asked to do so by him appears to have been taken as an admission of guilt and subsequent findings by decision makers appear to be predicated on this admission which she has consistently challenged.
[22] Ms Paish responds by pointing out, first, that this matter was not raised at the first appeal and, second, the Police officer was speaking to Ms Loh in respect of an infringement offence only, with the Court entitled to rely on the thorough evidence he provided before the Justices of the Peace to determine the manner in which the processing took place and the comments which were made at the time by Ms Loh.
[23] I accept Ms Paish’s submissions on this issue. A police officer stopping a driver for speeding is not required to caution that individual before speaking with him or her.
[24] There was an assumption underpinning Ms Loh’s submissions that because she was not at fault (in the sense that she did not know of the temporary speed restriction of 70 km/h because she had not noticed the signs), she should not have been convicted. However, fault, in the sense of deliberate action undertaken intentionally, is not a required element of this offence. If the prosecution establishes that the defendant was travelling at 100 km/h in a 70 km/h restricted area (which I am satisfied was established here), that is all that is required. Whether the defendant noticed the restricted speed limit signs or not is irrelevant.
Bias
[25] Ms Loh complains that the Judge, in summing-up, pointed out that there were discrepancies between the two parties and then based his decision on the belief that
the prosecution’s statements were the truth. She submits that this was done without allowing her the chance to reply, nor was there an evidence-based reason set out for the preferential acceptance of the statements. Ms Loh contends that the manner in which evidence was collected was neither fair nor transparent, the statement given by the Police officer was disputed and his erratic behaviour left unexplained which undermines the credibility of his evidence.
[26] Ms Paish does not accept Ms Loh’s contentions, responding that the Judge specifically considered Ms Loh’s allegations in respects of the evidence and about the conduct of the Justices of the Peace, and determined that here had not been a miscarriage of justice. She submits that the Judge did not accept there had been inappropriate conduct by the Justices of the Peace and that he was entitled to seek information from the prosecuting Police officer, noting her experience and underlying obligation to the Court. Ms Loh’s argument had been advanced in the first appellate Court and traversed fully before being rejected and it is submitted that no further material has been advanced to justify the reconsideration of this issue.
[27] It is my view that there is nothing to suggest that the Judge was biased. He gave Ms Loh the opportunity to present her arguments, considered them, and where there was contrasting evidence, preferred that of the experienced Police officer. Ultimately, he determined that these was nothing amiss in the decision of the Justices of the Peace such as to suggest there had been a miscarriage of justice.
Result
[28] For the reasons given above, no matter of general or public importance arises, nor does there appear to have been any miscarriage of justice. The high threshold set by s 237 of the CPA has not been met.
[29]Accordingly, this application for leave for a second appeal is declined.
Churchman J
Solicitors:
Crown Solicitor’s Office, Wellington for Crown cc A K Loh
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