M v Police HC Wellington CRI-2009-412-23

[2009] NZHC 1464

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-412-23

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 October 2009

Counsel:         Appellant in person

M W Snape for respondent

Judgment:      23 October 2009

RESERVED JUDGMENT OF DOBSON J

[1]      This was an appeal against a finding by Justices of the Peace sitting in the District Court at Dunedin that an infringement notice for driving in excess of the speed limit had been proven.   A right of appeal exists from that finding, notwithstanding that the outcome did not result in a conviction by virtue of the provisions of s 78A of the Summary Proceedings Act 1957.

[2]      The infringement notice was issued on the basis of one constable recording the speed of the vehicle by use of a hand-held laser device.   That constable then relayed the details of the car, and the speed which the constable recorded, to a

second constable, who followed the car as described to him, pulled the driver over

M V NEW ZEALAND POLICE HC WN CRI-2009-412-23 23 October 2009

and issued the infringement notice at the speed as relayed to him by the first constable.   In these  circumstances,  the  appellant  framed  the  issue  on  appeal  as whether:

…as a matter of law, the infringement notice issued to the appellant is capable in the circumstances of being proved to the requisite standard of “beyond reasonable doubt”.

[3]      Mr Macalister appeared for himself in both the District Court, and on appeal. Both of the constables gave evidence in the District Court and were questioned by him.  He did not contest the accuracy of the laser device used to record the speed of the vehicle he was driving.  Rather, he argued that the speed at which he had been travelling at the relevant time could never be adequately proven, in the absence of a documentary record produced by the recording device.  He also complained that the record from the device ought to have been available to demonstrate to him at the time of his apprehension.

[4]      Although the argument to this effect presented to the Justices of the Peace was treated by them as a question of law, as developed in the arguments on the appeal, it divides into two possible challenges.

[5]      First, that as a matter of law, the process used here for observing driving conduct in excess of the speed limit, and enforcing the law for breach, is inadequate or inappropriate because it could never be relied upon as proven by evidence that was “safe”.

[6]      Secondly, even if the process adopted by the two constables is in general terms a tenable process, then in the particular circumstances here, the evidence was not sufficiently reliable and the Justices of the Peace ought not to have found that the elements of this strict liability offence were made out.

[7]      As to the first challenge, namely to the adequacy of the process used, it is not a complete answer for the Police to claim how widespread the practice is, or how frequently it is accepted as valid, or indeed to contend that effective policing of compliance with the speed limits could not be maintained without resort to this process.

[8]      Mr Snape  submitted  that  the  scheme  of  the  relevant  part  of  the  Land Transport Act 1998 and the Road User Rules 2005 are to be interepreted as recognising  that  the  mischief  of  speeding  devices  justifies  steps  to  enforce compliance by means including the process presently used.  Obviously, the utility of such hand-held laser devices to measure the speed of on-coming traffic, including on the open road, would be very substantially limited if the consequences of detection of drivers exceeding the speed limit could only be enforced if the officer operating the device retained the recording, and pursued the driver until presenting him or her with the record of the speed attributed to that driver still showing in the device.

[9]      I accept that the various provisions are to be interpreted as contemplating a process such as that used by both officers in the present circumstances.  However, again that does not prevent the process being inadequate to establish a breach of the law when adverse financial consequences are imposed on the citizen as a matter of strict liability, in the event of alleged breach.

[10]     Part   of   Mr Macalister’s   attack   on   the   process   used   depended   on   a misconception that he was entitled to be confronted at the time he was apprehended by the second constable with all of the evidence the Police would rely on to establish that he had been exceeding the speed limit, and by how much, if he challenged the constable’s assertion that he had been speeding.   When Mr Macalister raised that expectation with the second constable, he was apparently met with a response to the effect that the Police did not have to prove anything, but that Mr Macalister could take it to Court if he wished.   If that challenge was accepted, then obviously the Police do have the onus of proving that Mr Macalister was driving in excess of the speed limit by the extent alleged against him, at the relevant time.   However, the quality of the evidence available to prove the ingredients of the offence is not to be tested at the roadside, but in Court.

[11]     I am satisfied that a process such as that deployed by the two constables in the present circumstances is not inherently unsafe in terms of the quality of evidence it is likely to produce.  If operated by competent officers who remain mindful of the need to prove the requisite elements of the offence if challenged by any defendant to do so, then it is capable of establishing the elements of such a defendant’s driving in

excess of the speed limit, by means of evidence that meets the usual high standard in criminal cases.

[12]     Turning to the second ground of challenge, the essence of Mr Macalister’s point was that a Court could not be satisfied that he had been recorded as travelling at 117 kilometres per hour when there was no record available from the device used to verify the speed.  It could be that the constable using the device:

•    misread its screen as to the number specified; or

•    inaccurately transcribed what he had observed to his notebook; or

•    inaccurately relayed the speed to the second constable; or

•    the second constable inaccurately recorded what he had been told; or

•inaccurately conveyed the speed in issue to the defendant at the time he was apprehended.

[13]     Uncertainty about the accuracy of the speed recorded in any of these steps in the process that was used could be sufficient to raise a reasonable doubt that the elements of the strict liability offence had not been made out.

[14]     The first constable produced in Court a page of his notebook showing a series of time entries under a heading indicating use of the laser, the relevant one being:

1344    117km 492m

Blue Ford
1 passenger – white top

Right lane

[15]     The evidence of the first constable was that he wrote those details at the time the speed was logged on the laser device and recorded in the notebook.   He then relayed those details to the second constable, and watched the second constable respond by pulling out and beginning to follow the same blue Ford whose speed the first constable had recorded.

[16]     No material doubt was raised in the questioning of the first constable as to his ability to use the device, his competence in reading the speed it recorded, or the accuracy with which he had read that and then recorded it in his notebook.

[17]     In these circumstances, the prospects for an error are theoretical rather than genuinely raised on the evidence.  By the end of the evidence from both constables, it was clearly open to the Justices of the Peace to find that:

•the first constable had been using a device that was correctly calibrated and the accuracy of which was not challenged;

•he recorded the speed of the blue Ford subsequently established as being driven by the defendant;

•    that speed was recorded as 117 kilometres per hour; and

•the  same  speed  was  relayed  to  the  second  constable,  conveyed  to  the defendant and became the speed used in the information to establish the extent to which the relevant speed limit had been exceeded.

[18]     In all these circumstances, I am not prepared to find that the Justices erred in their approach to the evidence.  It follows that the appeal must fail.

Dobson J

Solicitors:

C A Macalister, 10 Nepal Place, Khandallah ([email protected]) Luke Cunningham & Clere, Wellington for respondent