Marinkovich v Police

[2014] NZHC 977

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-50 [2014] NZHC 977

BETWEEN

MICHAEL KARL MARINKOVICH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	12 May 2014
Appearances:	Appellant in person J Barry for Respondent
Judgment:	12 May 2014

(ORAL) JUDGMENT OF LANG J [on appeal against conviction]

MARINKOVICH v NEW ZEALAND POLICE [2014] NZHC 977 [12 May 2014]

[1]      Mr Marinkovich faced infringement notices in the District Court alleging that he had driven his motorcycle in excess of 100 kilometres per hour, and that he had failed to keep wholly to the left of a no passing lane line when passing another motor vehicle.

[2]      Following  a  defended  hearing  in  the  District  Court  at  Warkworth  on

14 September 2012, the Justices of the Peace found Mr Markovich guilty on the charge of driving in excess of 100 kilometres per hour but dismissed the other charge.  Mr Marinkovich appeals against his conviction on the charge of driving at a speed exceeding 100 kilometres per hour.

Background

[3]      Both charges arose out of an incident that occurred at approximately 8.17 pm on 17 March 2012.  On that evening, a police officer in a marked patrol vehicle was parked on a stretch of road to the north of Te Hana on State Highway 1.  He was monitoring traffic travelling along a stretch of road known as Piggery Straight. Whilst stationed there, he observed a motorcycle travelling in a line of vehicles in a northerly direction.  The officer gave evidence that he saw the motorcycle overtake two vehicles by travelling on the incorrect side of a no passing line.  He said that he locked the speed of the motorcycle at 122 kilometres per hour on his radar detection device, and then gave pursuit.  When he stopped the motorcycle, he found that Mr Marinkovich was the rider.

The hearing in the District Court

[4]      The hearing in the District Court occupied some considerable time.  The only witness for the prosecution was the police officer who had observed the events I have just described.   His evidence in chief occupies three typewritten pages of transcript.   Mr Marinkovich’s cross-examination of the officer then occupies approximately 29 pages.

[5]      It is clear from the transcript that Mr Marinkovich challenged many aspects of the officer’s evidence.  In particular, he challenged the sequence of events that the officer described.  He also challenged the manner in which the officer operated, and

interpreted the data produced by, his radar detection device.   In particular, he submitted that the officer had not operated the device in accordance with recognised guidelines promulgated by the police in respect of such devices.

[6]      Mr Marinkovich then gave evidence, and described the passing manoeuvre that  he  had  undertaken.    He  was  then  cross-examined  relatively briefly by  the prosecuting sergeant.  Both Mr Marinkovich and the prosecutor were then given the opportunity to make brief oral submissions.  At the conclusion of submissions, the Justices delivered their decision as follows:1

[1]       Mr Marinkovich, you are charged with two infringement offences. The first being that you failed to keep wholly to the left of a no passing lane line when passing a motor vehicle or an animal drawn vehicle travelling in the same direction, and the second is that you drove a vehicle on the road at a speed exceeding 100 kilometres an hour being the applicable speed limit.

[2]       Constable Winterbottom gave evidence that on 17 March at 8.17 pm he locked his Stalker radar unit onto your motorcycle from a distance of 350 to 400 metres and the lock-on speed was 122 kilometres per hour.  It was dark, it was a 100 kilometre per hour area.  He recorded you, firstly, in the fast window of the radar which has the ability to pick up the front vehicle in the line, then onto the main window for locking on.   You were the third vehicle in a line of five and you overtook two to head the queue.  You drove approximately 150 metres on the wrong side of the no passing lane.  It was dark, dry and clear with good visibility.

[3]       In   your   cross-examination   of   the   constable   you   introduced significant material relating to police operating guidelines.  These guidelines do not act as anything other than a guide to police officers exercising their duties, but do not restrict the bench in any way in making a determination. We do, however, acknowledge your difficulties in obtaining disclosure in respect of these guides.

[4]       In your evidence, you testified that you were fourth in a line of vehicles, you passed two when they moved to the left and the third when it braked and pulled to the left.  You testified you did not cross the yellow line. You did not see the constable until you were on his back door.  You admit you were speeding and that you were doing about 108 kilometres per hour, but not at the ticketed speed.

[5]       We  accept  the  accuracy  of  the  documentation  supporting  the accuracy of the surveillance equipment and the officer’s evidence.  We find that charge proven, that you were doing the speed of 122 kilometres per hour.  In fact, you must remember what the charge was, that it was exceeding

100 kilometres per hour. That is the decision that we have to make.

1      New Zealand Police v Marinkovich DC Warkworth CRI-2012-084-000254, 14 September 2012.

[6]       To the charge of crossing on the no passing lane, we find that there may be some doubt as to exactly where or what occurred as you were approaching from behind the police car and we are giving you, on that matter, the benefit of the doubt.  So, on the matter of the exceeding the speed limit, you are ordered to pay $170 and Court costs of $132.89 and on the other matter, the charge is dismissed and you are free to go.

The case on appeal

[7]      On appeal, Mr Marinkovich advances a wide range of issues in respect of which he contends the Justices of the Peace erred.  He also criticises the police for failing to provide him with adequate disclosure of relevant material prior to the defended hearing in the District Court.   In addition, he criticises as dangerous the location at which the police officer had chosen to engage in surveillance of traffic. Central to the appeal, however, is Mr Marinkovich’s challenge to the manner in which the officer operated the radar device and interpreted the data that it produced.

[8]      In support of this aspect of his argument, Mr Marinkovich contends that the Justices failed to give him a fair hearing because they did not allow him to fully develop his evidence in chief in relation to these issues.  Mr Marinkovich relies for this submission on the fact that the Justices intervened very shortly after he had begun giving his evidence in relation to the charge of travelling at excess speed.  The relevant part of the transcript is as follows:

A.      My full name is Michael Karl Marinkovich, I live in 188 Melons Bay

Road, Melons Bay and my occupation is salesperson.

Q.      Right, if you’d just like to give us your evidence of what happened that day.

A.      What happened was I had been following vehicles, I came round the corner to the straight which is a long straight going up the Te Hana hill there and leads onto a passing lane. There were three vehicles in front of me, they all speed up, as they do.   The back two were slower vehicles and as we moved maybe 50 metres along they pulled over slightly to the left.  They’ve – I’ve actually got photos there which are not allowed to be admitted, there’s 1.6 metres verge on the side of the road which is tar sealed and that allowed me to pass.  And I passed two of the vehicles, I did not pass the third and the third one carried on and then braked suddenly.  Then I got up beside it and passed it, met up with Constable Stables [sic] car and he put his lights on and pulled me over.

Q.      Thank you.  Anything further in relation to – you’ve given us, you’ve asked a lot of questions in cross-examination, so we probably don’t have to go down that track again, but do you want to give evidence as to the accusations that have been made in relation to the yellow line that you crossed –

A.     Yes.

[9]      Mr Marinkovich contends that the intervention of the Justices at this point effectively diverted  him  from  giving  any  further  evidence  about  the  overtaking incident.  He says that he wished to explain in detail the overtaking manoeuvre that he undertook, and the location and actions taken by the vehicles that were travelling in front of his vehicle.  This assumes importance because one of the vehicles was a Mitsibushi minibus, and the lead vehicle was a Subaru motor vehicle.   Mr Marinkovich says he wished to develop an argument based on a submission that it was likely that one of these vehicles was responsible for producing the reading that the officer’s radar detection device locked onto.  He was prevented, however, from giving evidence about these issues by the fact that the Justices were clearly not interested in hearing further from him in relation to them.

[10]     I agree with counsel for the respondent that it is possible that the Justices were already aware of the evidence that Mr Marinkovich was likely to have given from his extensive cross-examination of the police officer.  There is now no way of knowing, however, of the precise matters that Mr Marinkovich would have wished to give evidence about if he had been permitted to do so.  The Justices were also wrong to advise Mr Marinkovich that he did not have to give evidence about matters he had put to the police officer during cross-examination.  To the extent that the officer had denied matters put to him in cross-examination, Mr Marinkovich was bound to give evidence in respect of those issues.

[11]     These matters persuade me that the trial miscarried at the point at which the Justices intervened and directed Mr Marinkovich’s attention to the other charge. Had the Justices dealt in their decision with the issues that Mr Marinkovich had put to the police officer in cross-examination, there could probably be no criticism of the fact that they prevented him from giving evidence about those issues.  The manner in which the Justices’ decision is phrased, however, does not leave the reader with any confidence that this is what occurred.

[12]     A further factor that leads me to question the Justices’ decision is that they did  not  endeavour  to  resolve  the  dispute  between  Mr  Marinkovich  and  the prosecution regarding the identity of the vehicle that produced the reading of 120 kilometres per hour.  The case for Mr Marinkovich was clearly that another vehicle was responsible for producing that reading.  Much of his cross-examination of the police officer was directed to that issue.  The Justices did not, however, confront it directly.  Rather, they decided the case on the basis that they accepted the accuracy of the documentation relating to the accuracy of the surveillance equipment and the officer’s evidence.  The accuracy of the surveillance equipment was not, however, the issue to be determined.  The issue in dispute related to whether the prosecution had proved beyond reasonable doubt that Mr Marinkovich’s vehicle was the vehicle that the radar device had detected travelling at 122 kilometres per hour.

Disposition

[13]     I have therefore concluded that the conviction cannot be regarded as safe. Ordinarily, I would consider remitting the charge for rehearing in the District Court. The history of this matter to date, however, precludes that option.  As I have already observed, the charges arose as the result of an incident that occurred on 17 March

2012.    They  were  heard  at  a  defended  hearing  on  14 September  2012.    Mr Marinkovich then lodged an appeal within time on 9 October 2012.  Thereafter, he was directed by the Warkworth District Court to file further documentation.   The nature of that documentation cannot now be ascertained.

[14]     What is clear, however, is that the appeal sat unactioned in the Warkworth and/or North Shore District Courts for a further 13 months.  The Court file was not transmitted from the District Court to this Court until January 2014.  Moreover, any rehearing would not realistically take place for some months to come.  This would involve further difficulty, because both the police officer and Mr Marinkovich would be asked to give evidence about events that had occurred more than two years ago.

[15]     The seriousness of the charge does not warrant the criminal justice system spending any further time on this minor matter.  For that reason, I am satisfied that matters should be brought to an end at this point.

Result

[16]     The  appeal  is  allowed.    The  conviction  is  quashed,  as  are  the  penalties imposed in the District Court.

Lang J

Solicitors:

Crown Solicitor, Auckland

Copy to: Appellant