Middleton v Police HC Auckland CRI-2011-404-000031

[2011] NZHC 1939

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000031

GRANT MIDDLETON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         10 October 2011

Appearances: Mr Middleton in person

W N Fotherby for Respondent

Judgment:      10 October 2011

JUDGMENT OF WOOLFORD J

Solicitors:           Crown Solicitor, Auckland.

And to:               Mr G Middleton, 102 Parrs Cross Road, Sunnyvale, Auckland 0612.

MIDDLETON V POLICE HC AK CRI-2011-404-000031 10 October 2011

Introduction

[1]      The appellant appeals against a finding by Justices of the Peace that he drove a motor cycle at 111km/h on a section of the Southern Motorway in Auckland City between the Hobson Street on-ramp and the Gillies Avenue off-ramp where the speed limit is 80km/h and an order that he pay a fine of $300 and Court costs of

$30.00.

District Court hearing

[2]      The Justices of the Peace heard evidence from a police officer who followed the appellant.  He was also driving a motor cycle.  The police officer said he was travelling south on State Highway 1 near the Hobson Street on-ramp  when his attention was drawn to the appellant who was slightly ahead of him.   He said the appellant appeared to be travelling a little bit faster than the cars around him.  He conducted a pace-check of the appellant’s speed over a distance of approximately

400 metres.  The gap between himself and the appellant remained the same and he had a clear unobstructed view of the appellant throughout the 400 metres.  He pace- checked the appellant’s speed to be a constant 111km/h.

[3]      In cross-examination, the police officer said it was hard to explain pace- checking without actually doing it but the first part is to gauge the distance “it’s an optical thing” and maintain that distance and, the second thing, is to follow the driver for a minimum distance of 200 to 250 metres.  He said that the traffic at the time was moderate and that he and the appellant remained in lane one throughout the distance travelled from Hobson Street to Gillies Avenue.  He also said he invited the appellant to view the locked in speed on his motor cycle speedometer, but that he declined to do so.

[4]      The appellant gave evidence.  He said the police officer was in fact stationary at the bottom of the Hobson Street on-ramp when he joined the motorway.  He said he consciously maintained a speed of 80km/h because he knew the police officer was probably  somewhere  behind  him  on  the  motorway.    Contrary  to  the  officer’s evidence, he said he did not remain in lane one.  He had moved across lanes then

back to the near side lane when closing in on the Gillies Avenue off-ramp.  Finally, he was adamant the police officer had not offered to show him the locked in speed on his speedometer.  He said he would certainly have viewed the speedometer had the opportunity been given to him.

[5]      The Justices of the Peace summarised the evidence and then said:

[10]      That in essence is a summary of the evidence.  Mr Middleton, quite clearly as I have just recorded, you told the Court you saw the officer when you joined the motorway at Hobson Street.  He stopped you in the vicinity of Gillies Avenue, which is a significantly greater distance than 400 metres.

[11]      Quite clearly the officer followed you for the entire distance but for the purpose of recording the distance, to enable him to give evidence in Court, the device was activated over a distance of 400 metres.   It clearly shows that his speed was accurately recorded and we have absolutely no reason to doubt that, which is a significant difference between the 80 kilometres you claim to have done.

[12]      Quite clearly, you were exceeding the 80 speed and on the evidence before us today we find this charge proven.

Discussion

[6]      There  were  three  significant  inconsistencies  in  the  evidence  between  the police officer and the appellant.  First, the police officer said he was travelling south on  State Highway 1  near to  the Hobson  Street  on-ramp  when  he first  saw the appellant, whereas the appellant said that the police officer was stationary, being parked on the hard shoulder at the bottom of the Hobson Street on-ramp.   The significance of this inconsistency is that if the police officer was parked on the hard shoulder at the bottom of the Hobson Street on-ramp when he first saw the appellant, he would have to accelerate to a speed considerably more than that of the appellant in order to catch him up.

[7]      Secondly, the police officer said that he and the appellant remained in lane one, whereas the appellant said he had moved across lanes.   This is significant because the section of the motorway between Khyber Pass Road and Gillies Avenue is the busiest section of road anywhere in New Zealand.  Between the Hobson Street on-ramp and the Gillies Avenue off-ramp, there are also three further on-ramps, Symonds Street, Grafton Gully and Khyber Pass Road.  If the traffic was moderate, it

is likely that motor vehicles would be constantly joining the Southern Motorway in lane one from these three on-ramps at a speed of less than 80 km/h.

[8]      Thirdly, the appellant was adamant that the police officer did not offer to show him the locked in speed on his motor cycle speedometer.  Mr Middleton has today shown me a copy of the second page of the infringement notice with the officer’s notation “viewed device”, which Mr Middleton says is inconsistent with the officer’s evidence at the hearing.  This in itself is not significant as it occurred after the appellant had been stopped and was on the side of the road but it is another indication of the variance between the evidence given by the police officer and the appellant.

[9]      Unfortunately, the Justices of the Peace did not give any specific reasons as to why they preferred the evidence of the police officer.  In those circumstances, I am justified on appeal in reviewing the evidence and reaching my own conclusion as to whether the informant’s case has been proved beyond reasonable doubt.

[10]     For me, it seems unlikely that the appellant would have been able to maintain a constant 111km/h for 400 metres in lane one of the Southern Motorway between the Hobson Street on-ramp and the Gillies Avenue off-ramp when the traffic was moderate and there are three other on-ramps feeding traffic on to the motorway at speeds less than 80km/h.

[11]     In addition, although I accept that pace-checking is a tried and true method of ascertaining speed, much will depend upon the circumstances of the pacing.  In this instance, the police officer did not give any evidence whatsoever of the distance he maintained between himself and the appellant.   It seems to me that the greater distance the less  accurate the pace-check  would  be.    Here where there was  no evidence given as to the distance between the two vehicles, it is difficult to be sure of the accuracy of the speed reading.

[12]     Finally, if the police officer had commenced the pursuit from a standing start, then he may well have sped up to 111km/h in order to draw near to the appellant.

That does not lead inevitably to the conclusion that the appellant was also travelling at that speed.

[13]     In those circumstances, the appeal is allowed and the Justices of the Peace finding quashed.   I cannot be certain from the police officer’s evidence that the appellant was travelling at a constant speed of 111km/h over the 400 metres.  The

order that the appellant pay $300 and $30 Court costs is also quashed.

Woolford J