M v Police HC Wellington CRI 2007-435-11

[2008] NZHC 2233

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2007-435-11

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         18 March 2008

Counsel:         Appellant in person

C Patterson for Respondent

Judgment:      18 March 2008

ORAL JUDGMENT OF RONALD YOUNG J

[1]      Mr  M    appeals  against  his  conviction  for  driving  in  excess  of  a

50 km/ph speed limit just north of Paraparaumu in early 2007.   He represented himself before two Justices of the Peace in August 2007 when he was convicted. And he now also represents himself.

[2]      Mr M   challenges his conviction on a variety of fronts.  They include:

(i)an allegation the Justices of the Peace were wrong to find a prima facie case at the end of the prosecution case;

M V NEW ZEALAND POLICE HC WN CRI 2007-435-11 18 March 2008

(ii)an allegation the Justices of the Peace could not have been satisfied beyond reasonable doubt all the elements of the charge were proved. This includes his allegation there was inadequate proof of 50 km/ph road signage in the area and inadequate proof that this was a 50 km/ph in any event;

(iii)more broadly, he alleges the Justices of the Peace did not give him a fair hearing;

(iv)an allegation that the Justices of the Peace wrongly refused his application pursuant to s 146 of the Land Transport Act for the prosecution to prove the accuracy of the radar by evidence other than certificate;

(v)       an allegation the police did not provide proper disclosure to him;

(vi)an allegation that the police officer who measured the appellant’s speed could not enforce the speed restriction because he was illegally parked on a yellow line.

[3]      A complete record of the proceedings is not available.   Part of the tape recording of the last part of the case, including reasons given by the Justices of the Peace for their decision to convict the appellant, is not available.   In addition ,the Justices of the Peace reasons for refusing the s 146 application is also not available.

[4]      Stripped of all the technical challenges now mounted by the appellant, at trial his defence was that he was not travelling at 73 km/ph in a 50 km/ph zone, and that somehow  the  radar  was  in  error  either  by  measuring  someone  else’s  speed  or because the radar itself was not working properly.  Mr M  ’s case was that at

64 years of age he had never had a speeding ticket or other traffic ticket.  He said he was particularly careful about not speeding and he was not doing 73 km/ph that evening at Paraparaumu.   He called his wife to give evidence who was in the car with him.   She said she was very conscious of speed, her husband was not doing

73 km/ph that evening when stopped.   He suggested some possibilities, relating

directly to the facts of the case, and rejected by the police officer who gave evidence, as to how the radar might have been misused that evening.

[5]      This  defence,  that  in  the  circumstances  the  Court  could  not  be  satisfied beyond reasonable doubt that the appellant had been speeding, required a specific focus by the Justices of the Peace in giving their decision.  Before conviction they would have to have rejected Mr M  ’s evidence as either untrue or unreliable. Mr M   was entitled to know why his evidence in his case was being rejected, and on appeal he was entitled to challenge those findings appropriately.   Because there are no reasons, Mr M   is effectively prohibited from challenging the Justices of the Peace conclusions on the merits.  Mr M  ’s only effective basis for an appeal, therefore, cannot rightly be avoided because of an administrative error by the Court.  The proper course, therefore, in these circumstances, is to allow the appeal, set aside the decision and conviction and return the matter to the District Court for rehearing.

[6]      I propose to do so at the end of this judgment, but very briefly, I deal with each of the other challenges raised by Mr M  .

[7]      Firstly, the s 146 application.  While it was preferable to have decided this matter pre-trial, in the circumstances I consider it did not matter.  There was no basis to grant the application.   Although the radar had been problematic some weeks before by January the radar had been fixed and re-certified after the discovered error. I accept that Mr M   was entitled to feel frustrated by the fact that he was given the wrong certificate initially and only given the correct certificate at hearing.  That was frankly a poor effort by the prosecution.  But, in my view, there was nothing to suggest that the radar was not working properly on 6 January 2007 and therefore no basis in any event to grant the s 146 application.

[8]      Secondly, the Justices of the Peace correctly found there was a prima facie case at the end of the prosecution case.  The only evidence then was from a constable that the appellant was driving a car at 73 km/ph, as recorded by his radar, in a

50 km/ph zone.

[9]      As to the question of signage and proof the area was a 50 km/ph area,  there was no issue taken at trial as to the police constable’s evidence that the events occurred in a 50 km/ph zone.   It is clear from a reading of the evidence that Mr M   accepted the events occurred in a 50 km/ph zone.   Nor was there any question of signage appropriate or otherwise raised by the appellant at trial.   The prosecution clearly established the appellant and the police officer were both in a 50 km/ph zone at the time of the alleged offence.  In those circumstances, there was no need to call any evidence with respect to signage.

[10]     As to the allegation the police did not provide adequate discovery, I consider there is no proper complaint here.  This allegation relates, as I understand it, to the police’s failure to identify the civilian who was in the police car that evening, and also to identify the person who had been stopped immediately prior to the appellant by the police constable.  As to the lay person in the police vehicle the appellant had the opportunity to ask the police for that person’s name and an opportunity if he wished to interview that person and to call him as a witness if he wished to do so. There was no evidence that person was a witness to anything relevant at all in event that night, and no evidence that the police had obtained any brief of evidence with respect to that person.  It was not therefore a question of a failure to provide proper discovery.

[11]     As to the driver of the vehicle who had been stopped immediately before Mr M  ,  the  police  refused  to  provide  his  name  and  address,  citing  the provisions of the Privacy Act, the fact that person was being prosecuted for an offence as well.  Mr M   challenged that refusal, as he was entitled to do, but unsuccessfully in the sense that the Ombudsman suggested the proper course was to apply to the Court for an order that his name be revealed.  Mr M   made no

such application and it is not now open to him to complain.

[12]     As to the complaint that the police vehicle was parked on a yellow line this was simply irrelevant as to whether or not the appellant was speeding.

[13]     As to the allegation of a lack of a fair hearing, while there may have been some difficult moments during the hearing any failures by the Justices of the Peace

seemed to me to be corrected during the hearing.  It may, however, be that the lack of a full record is also relevant to this complaint.

[14]     For the reasons given, therefore, I think the appropriate course for me is to allow the appeal set aside the conviction and order a rehearing.

“Ronald Young J”