M v Police HC WN CRI-2009-485-23

[2010] NZHC 72

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-485-23

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 February 2010

Appearances: The appellant in person

K S Grau for the respondent

Judgment:      9 February 2010

JUDGMENT OF CLIFFORD J

Introduction

[1]      Mr M   applies, pursuant to s 144 of the Summary Proceedings Act

1957, for leave to appeal to the Court of Appeal against a decision of Dobson J given on 23 October 2009.

Background

[2]      On 21 October 2008, Mr M   was the driver of a Ford motor vehicle on State Highway 1 in Fairfield, Dunedin.   A constable recorded the speed of the

M V POLICE HC WN CRI-2009-485-23  9 February 2010

vehicle by use of a hand-held laser device as 117km/h and gave the details of the car, and the speed which he had recorded, to a second constable.  This second constable then followed the car as described to him, pulled Mr M   over and issued an infringement notice.  At the time, Mr M   disputed he had been speeding and asked to see the laser device recording.  His request was declined.

[3]      Mr M  , no doubt when he received notice of the infringement offence, exercised his right to dispute the notice.

[4]      A defended hearing was held in the Dunedin District Court on 22 July 2009.

[5]      Both  of  the  constables  gave  evidence  in  the  District  Court  and  were questioned by Mr M  . The evidence of the first constable was that he wrote the details relating to Mr M  ’s vehicle in his notebook at the time the speed was  logged  on  the  laser  device.  The  entry  records  the  speed  as  117km/h  and describes  the  car  as  a  “Blue  Ford”.  The  constable  also  noted  that  there  was  a passenger in the vehicle wearing a white top. He then relayed those details to the second constable, and watched the second constable respond by pulling out the same blue Ford whose speed he had recorded.

[6]      Mr M   did not contest the accuracy of the laser device used to record the speed of the vehicle he was driving, and did not challenge the credibility of the constables. Instead, Mr M   argued that the speed at which he had been travelling at the relevant time could never be proved adequately because there was no documentary record produced by the recording device. He also complained that the record from the device ought to have been made available to him at the time of his apprehension.

[7]      The Justices of the Peace found that they were satisfied that, on the facts of the case, the infringement notice had been proved.

[8]      Mr M   then appealed, as he was entitled to.

[9]      Dobson J considered that the appeal raised two legal questions.  The first was whether, as a matter of law, the process used for observing driving conduct in excess

of the speed limit, and enforcing the law for breach, was inadequate or inappropriate because it could never be relied upon as proven by evidence that was “safe”.  The second was whether, even if the process adopted by the constables was in general terms a tenable process, the evidence in the particular circumstances of this case was not sufficiently reliable and the Justices of the Peace ought not to have found that the elements of the offence were made out.

[10]     Dobson J was satisfied that a process such as that used by the two constables in this case was not inherently unsafe in terms of the quality of evidence that it was likely to produce. He emphasised that, as long as the process was deployed by competent officers who remained mindful of the need to prove the requisite elements of the offence, it would be capable of establishing the elements of the offence by means of evidence that met the usual high standard in criminal cases.

[11]     In relation to the second ground of challenge, Dobson J concluded that it was clearly open to the Justices of the Peace to find that the constables had not made an error in recording the speed of the appellant’s vehicle. The appellant had raised “theoretical” errors that could occur if there was no record available from the device to verify the speed. 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 the speed and then recorded it in his notebook.

[12]     Accordingly Dobson J dismissed Mr M  ’s appeal.

[13]     Mr M   now seeks leave to appeal to the Court of Appeal on the following questions of law:

a)       Whether  an  alleged  infringement  offence  for  exceeding  the  speed limit is legally capable of proof beyond reasonable doubt, in circumstances when the enforcement officer issuing the speeding infringement notice did not witness the alleged offence, and when the witnessing officer did not present at the scene to positively identify the vehicle allegedly involved, or produce or retain any record from a recording device of the alleged speed of that vehicle.

b)If a speeding infringement offence is as a matter of law capable of proof in such circumstances, whether the evidence in this case was sufficiently reliable that  the Justices of the Peace were  correct  in finding the elements of the offence proved beyond reasonable doubt.

[14]     In regard to the first question, in his written submissions Mr M   stated that he wished to make the following submissions to the Court of Appeal:

a)       If the issuing officer did not directly witness the alleged offence, failure to produce the speed device recording on request, or to make the witnessing officer available to attest to the alleged offending and identity of the vehicle, should be viewed as fatal.

b)The enforcement process followed in this case is acknowledged to be widespread practice, and yet its appropriateness and the safety of any evidence adduced through this process have not been the subject of scrutiny by the Court of Appeal.

c)       The safety of this enforcement practice and reliability of evidence adduced by it is an issue of general and public importance which ought to be heard by the Court of Appeal.

[15]     Mr M   submits that this issue is a novel question that has not been heard  in the Court of  Appeal to  date, and  that it is one of general and public importance as the practice appears to be widespread.

[16]     In regard to the second question, the appellant states that he will make the following submissions to the Court of Appeal

a)       The appellant requested to see the device recording or speak to the witnessing officer. The officer’s failure to comply with this request should render the offence incapable of proof or, when taken together with  the  evidence  in  a  particular  case,  should  be  considered  as

relevant and influential when assessing the overall reliability of the evidence against the appellant.

b)The witnessing officer acknowledged in oral evidence that he did not have  an  uninterrupted  view  of  the  alleged  speeding vehicle  at  all times, that he had returned to monitoring other traffic on the road prior to the appellant’s vehicle being apprehended, that he recorded very basic details of the vehicle allegedly involved in his notebook, and that his knowledge of and ability to identify vehicles was elementary at best. In such circumstances, Dobson J erred in law in determining that it was sufficiently reliable to prove the elements of the offence beyond reasonable doubt.

Discussion

[17]     Section 144 of the Summary Proceedings Act 1957 provides that a party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on a question of law arising in any general appeal. Leave may be granted if, in the opinion of the Court, the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[18]      The Court of Appeal in R v Slater [1997] 1 NZLR 211 emphasised that s 144 is not to be used to provide a second-tier of appeals from the decisions of the District Court.

[19]     The material consideration under s 144 is whether there is a question of law which ought to be submitted to the Court of Appeal because of its public or general importance  or  because  of  any  other  reason.  The  discretion  of  the  Court  in determining what matters are of general or public importance or which come within the term “for any other reason” is very wide: Clifford v CIR (No 2) [1963] NZLR

897.

[20]     It is generally accepted that an officer’s failure to show the driver the locked speed on the equipment is not fatal to the prosecution case: Ministry of Transport v Hughes [1991] 3 NZLR 325 at 328; Harris v Police HC Christchurch AP2/01, 6

June 2001 at [14]. In the latter case, however, the cumulative effect of a failure to make any contemporaneous note of the offence and an unapproved calibration test left the Court with a doubt that the burden of proof had been discharged satisfactorily.

[21]     In R v Chatha CA 133/04, 20 September 2004, the Court of Appeal dismissed an application for special leave to appeal against a finding that there was sufficient evidence to conclude that the applicant had exceeded the speed limit. The appellant argued that the police officer was obliged to show him the speed on the radar at the time he was stopped. The Court of Appeal concluded, at [5], that there was no legal obligation, even on an arguable basis, that evidence of a reading by a radar device was inadmissible unless the offender had been invited to view a read-out of it.

[22]     The appellant submits that the decision in Chatha must be distinguished on the basis that the issuing officer was the officer who witnessed the offence first hand and could therefore give direct evidence of the alleged offence, and that the officer would have been able to show the applicant the speed on the device if such a request had been made. As regards this latter part of the appellant’s argument, it is evident that the Court of Appeal did not consider this matter to be of any relevance:

[5]     The Police Officer's evidence was that if he had been asked by the applicant to show the locked speed on the Stalker device he would have had no difficulty in complying with that request but no such request was made. The applicant challenged this aspect of the evidence and it may be that the nature of Mr Chatha's request for proof was misunderstood by the Police Officer. In any event, despite our reading of the submissions and listening, we hope with appropriate care, to the oral submissions, there is no legal obligation established even on an arguable basis that evidence of a reading by such a device is inadmissible unless the offender or alleged offender has been invited to view a read-out of it.

[23]     More generally, and as observed in Harris v Police (a case – like Hughes – concerning compliance with a Police Code of Practice), the real issue in cases such as this is whether the infringement notice had been proved to the necessary standard of beyond reasonable doubt.   As Dobson J found, the evidence produced by the

prosecution was sufficient for the Justices to reach the conclusion they did.   That specific conclusion, by itself, gives lie to the more general assertion made by Mr M   as to the inappropriateness of the procedures adopted by the Police.  As Mr M   acknowledged, his challenge was really to those procedures, and to the appropriateness of issuing infringement notices for speeding where practical considerations mean that it is extremely difficult for the officer operating a speed detection device to also apprehend an offender.   Mr M   went so far as to suggest that, on busy roads, speed cameras should always be available.

[24]     Whilst those questions may be ones which, at a level of policy, raise matters of interest to the public generally, in my judgment this appeal does not raise a question of law which, by reason of its general or public importance, ought to be submitted to the Court of Appeal.

[25]     Leave is declined accordingly.

[26]     As I am sure he is aware, Mr M   may apply for special leave.

[27]     No question of costs was raised before me.   If such a question arises, the parties may file submissions.

“Clifford J”

C A M  , appellant, 10 Nepal Place, Khandallah, Wellington ([email protected]) The Crown Solicitor, Wellington for the respondent ([email protected])