Miller v Police - [2012] NZHC 817

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2012-409-000013 [2012] NZHC 817

KARL DAVID MILLER
Appellant

V

POLICE
Respondent

Hearing: 23 April 2012

Counsel: S N Claver for Appellant
MAV Raj for Respondent

Judgment: 1 May 2012

JUDGMENT OF WHATA J

[1] Police Sergeant Lapsley was parked on double yellow lines when he saw Mr Miller engaged in speed racing. Based on Sergeant Lapsley’s evidence, Mr Miller was convicted of operating a vehicle in an unnecessary exhibition of speed in contravention of s 22A (1) of the Land Transport Act 1998. A fine of $400 plus costs was imposed as well as disqualification from driving for six months. This appeal is about whether Sergeant Lapsley’s evidence should have been allowed in because it was improperly obtained in breach of r 6.4 of the Land Transport (Road
User) Rule 2004.

MILLER V POLICE HC CHCH CRI 2012-409-000013 [1 May 2012]

Issue

[2] The critical issue is whether exclusion of Sergeant Lapsley’s evidence would be proportionate to the impropriety of his traffic violation.

Judgment of the District Court

[3] The factual findings of the District Court are as follows:

[5] ... Sergeant Lapsley was on duty in full uniform in a marked patrol car parked on Waller Street near its intersection of Moorhouse Avenue in Christchurch. He was parked, or at least his vehicle was stationary on double yellow lines. The significance of that I will get to in a moment. He heard the engines of two vehicles to his left accelerating and he saw two cars, what he described as racing side by side reaching speeds of about 100 kilometres an hour before one of the vehicles slowed He activated his flashing lights, pulled from his position into Moorhouse Avenue and followed both vehicles until they came to a stop.

[6] He spoke to Mr Miller who told him, and the notes were recorded in a signed notebook statement, that he had come to a stop at the red light at Antigua Street. He did not know how fast he was going. He estimated his speed to be 70 kilometres per hour and he said that he went to get his nose in front, presumably of the other vehicle, and then backed off. That seems to be consistent with what Sergeant Lapsley observed.

[4] The Judge preferred Sergeant Lapsley’s evidence about speed given his vast experience in detection of speed. He was satisfied that Mr Miller was engaged in an unnecessary exhibition of speed which is provided for in the section (s 22A(1)).

[5] The Judge accepted that the evidence of speeding was improperly obtained. The Judge then proceeded, in a careful way,1 to examine the relevant criteria for assessment of impropriety for the purposes of exclusion. He said that the impropriety in this case is almost at the lowest level that one could possibly imagine. He then examined whether or not the impropriety was deliberate, reckless, or done in bad faith. He concluded that there is no suggestion…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 817
Decision Date: 1 May 2012

CaseChat Overview and Summary

In this case, Karl David Miller appealed against his conviction for operating a vehicle in an unnecessary exhibition of speed, which was based on the evidence of Police Sergeant Lapsley. The appellant argued that the evidence was improperly obtained because the police officer was parked on double yellow lines, in breach of a relevant traffic regulation. The central issue for the court was whether the exclusion of Sergeant Lapsley's evidence would be proportionate to the impropriety of his traffic violation. The District Court found that the impropriety was at the lowest level possible and that excluding the evidence would be disproportionate. The appellant argued that the police officer's illegality and the danger it presented to the public should not be condoned and that the Judge erred in treating the apprehended danger as a significant factor.

The court considered the framework for assessment of admissibility of evidence under s 30 of the Evidence Act 2006, which requires a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice. The court found that the police officer's breach of the regulation was not knowing and that the nature of the offending was at the lower end of the spectrum. The court also found that there were real public safety concerns about street races and that exclusion of the evidence would raise significant doubts about the effectiveness and credibility of the judicial system to protect the public. The court dismissed the appeal.

This case highlights the importance of police officers observing the law and the potential consequences of their illegal conduct on the credibility of the justice system. The court found that while the police officer's breach of the regulation was improper, excluding the evidence would be disproportionate in this case. The court also emphasised the need to balance the impropriety of the evidence with the need for an effective and credible system of justice. The decision provides guidance on the assessment of admissibility of improperly obtained evidence and the factors that should be taken into account in determining whether exclusion of the evidence is proportionate to the impropriety.

Orders