Mills v Police
[2017] NZHC 825
•28 April 2017
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2017-463-1 [2017] NZHC 825
BETWEEN TERENCE DAVID MILLS
Applicant
AND
NEW ZEALAND POLICE Respondent
Hearing: 26 April 2017 Counsel:
Appearance:
SP Casey for Crown
TD Mills, applicant in person
Judgment:
28 April 2017
JUDGMENT OF FITZGERALD J [On appeal against conviction]
This judgment was delivered by me on 28 April 2017 at 3:30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Solicitor, Rotorua
To: TD Mills, Auckland
Mills v New Zealand Police [2017] NZHC 825 [28 April 2017]
[1] On 2 February 2016, the Police issued Terrence Mills a speeding ticket for driving at 59 km/h in a (temporary) 30 km/h zone. Mr Mills disputed the offence in the District Court on 22 July 2015, at a hearing before two Justices of the Peace (“JPs”). They found the charge to be proved, fined Mr Mills $230, and ordered him to pay Court costs of $130.1
[2] Mr Mills then appealed his conviction to a District Court Judge. On
24 November 2016, Judge P W Cooper issued a reserved decision upholding the conviction.2 Mr Mills now applies for leave to bring a second appeal to the High Court.
The evidence
[3] At the hearing before the JPs, briefs of evidence from two traffic- management workers were admitted by the consent of all parties. Of particular relevance to Mr Mills’ case was the brief from a Mr Gaylor of Traffic Management NZ. There, Mr Gaylor described the layout of the “stop/go one lane” road-works site in which Mr Mills was ticketed. Mr Gaylor said the work zone was 1.6 km, and would have extended signage over 2 km to protect the site. Signs saying “30 kph temporary” would have repeated at 400 m intervals, on both sides of the road. Mr Gaylor says “the signage on this road would have been set at a 100 to 150 metre spacing due to the fact this road is considered high speed. This is usual for State Highways to give ample warning to approaching motorists”.
[4] A traffic management plan depicting the layout of the “stop/go one lane” road-works site was admitted as a part of a brief from a Mr Hall. Mr Mills also placed particular reliance on this document, which I will refer to as “Diagram 15”.
[5] Constable Black gave oral evidence for the Police. As part of his evidence, he produced documents certifying the accuracy of his radar equipment, his competency in using that equipment, and also a copy of the infringement notice issued to Mr Mills. The Constable deposed that on 2 February 2016, he was
travelling in an unmarked patrol vehicle near to the town of Mamaku. He said that
1 Police v Mills DC Hamilton CRI-2016-063-001206, 22 July 2016.
2 Mills v Police [2016] NZDC 23290.
as he drove, he noticed a van because its driver’s door was not secure. Constable
Black said the van then drove passed a speed sign indicating the beginning of a
30 km/h speed restriction.
[6] The Constable deposed that when he (Constable Black) had travelled between 100 and 200 meters into the 30 km/h zone, he speed checked the van and locked a speed of 59 km/h.3 There were no other vehicles in the radar beam. He said he followed the car until it stopped behind a line of vehicles controlled by a stop/go sign worker. Constable Black says he followed the van through the road- works area before stopping it with his siren and lights. He identified the driver as
Mr Mills.
[7] During his cross-examination of Constable Black, Mr Mills largely focussed on details surrounding the distance between Constable Black’s patrol car and his van. Constable Black maintained his view of events on the day. Mr Mills’ point in pursuing this avenue of cross-examination appears to be based on his belief that Constable Black’s description of the distances and what occurred on the day in question factually contradicts the layout of the road described by Mr Gaylor:
MR MILLS
Mr Gaylor states that for an open road they allow anywhere from 100 to 150 meters because the high speed risk on the road for the signage. What I’m pointing out to Mr Black is he says that he entered the 30 k zone for 200 meters. I was already over 100 meters [ahead of] him so that’s 300 meters plus the distance I would have travelled, I was doing 60 k we’re now over
400 meters, plus the vehicles parked there I’m half a – he’s got his figures at
half a k for the 30 k zone when he clocked me, which is totally – well I was effectively deny that I’m staggered. So we have a distance of about 500 ks I’ve travelled and he, then he’s pinged me when I’ve actual fact stopped 150 meters up the road.
[8] Mr Mills elected to give evidence at the hearing before the JPs, in which he maintained his view that it was factually impossible for Constable Black to have
recorded him as being at speed in the 30 km/h zone.
3 There was some suggestion in the oral evidence given that the speed check was carried out when Mr Mills’ vehicle, i.e. rather than Constable Black’s vehicle, was between 100 and 200 metres into the 30km/h speed zone. However, Mr Mills confirmed at the hearing before me that it didn’t matter which scenario was correct, as on both scenarios, it was factually impossible for Mr Mills to have committed the offence in question.
The JPs’ decisions
[9] The JPs’ decision records that the case appears, on the surface, to be a fairly straightforward case of speeding on the open road. But they stated their belief that a number of “extraneous elements” had been introduced.
[10] In addressing Mr Mills’ factual-impossibility challenge, the JPs noted:
[2] Constable Black gave evidence that he logged into Mr Mills’ vehicle
100 to 200 meters inside the restricted zone. We heard no evidence as to the actual length of that restricted zone. We can only assume that it carried on
some distance after the logging in took place. The radar equipment logged
Mr Mills’ speed at 59 kilometres per hour within that zone. Even allowing for discrepancies minor as they are with the equipment it is obvious that Mr Mills was exceeding the 30 kilometre an hour zone limit.
[11] The JPs recorded their finding against Mr Mills as follows:
[4] The simple fact is that in our opinion within the 30 kilometre zone, Mr Mills was logged in his vehicle at travelling at 59 kilometres an hour within the 30 kilometre limit. The charge is proven. The infringement fee of
$230 is re-imposed and costs of $130 are added to it.
[12] As it happens, there was evidence before the JPs as to the actual length of the restricted zone; as noted above, Mr Gaylor’s statement confirmed that it was 1.6 km in length. However, I do not consider that to be material to the JPs’ decision, as they plainly accepted the evidence of Constable Black that Mr Mills had been logged within that 30km zone as travelling at 59km/h. The precise length of the work zone was not an integral part of the JPs’ findings in that regard.
District Court decision
[13] On appeal before Judge Cooper in the District Court, Mr Mills maintained his submission that it was factually impossible for his offending to have occurred. In his reserved decision, Judge Cooper addressed that submission as follows:
[9] Constable Black’s evidence was that he was behind the appellant’s vehicle; that there were no other vehicles between the patrol car and the appellant’s vehicle; that when the appellant’s vehicle was 100 to 200 metres beyond the 30 kilometre per hour speed sign, he checked the appellant’s speed at 59 kilometres per hour.
[10] The Justices of the Peace found as follows:
“The simple fact is that in our opinion within the 30 kilometre zone Mr Mills was logged in his vehicle at travelling at 59 kilometres an hour within the 30 kilometre limit.”
[11] It was open to the Justices of the Peace to accept the evidence of Constable Black, which they clearly did. It is not factually impossible for Constable Black to have clocked the appellant’s speed at 59 kilometres per hour at a point when the appellant’s vehicle was 100-200 metres beyond the
30 kilometre per hour sign. There is nothing in the theory put forward by the appellant which persuades me that the Justices had erred in their assessment of the evidence. The state of affairs proposed by the appellant in his submissions is at odds with the straightforward evidence given by the constable.
[12] The appeal is dismissed.
Submissions in support of leave to grant second appeal
[14] Mr Mills has not framed his submissions in terms of a leave application. He continues to advance his case that the size and layout of the 30 km/h zone, based on the evidence of Mr Gaylor and Diagram 15 in particular, means Constable Black’s evidence was factually impossible, and that a conclusion more consistent with Mr Gaylor’s evidence would indicate that his vehicle had to be stationary at the time his car was detected as being at speed.
[15] Mr Casey for the Crown submits that leave ought to be declined, and that the theory put forward by Mr Mills does not identify any miscarriage of justice.
Approach to applications for leave to bring second appeal
[16] Section 237 of the Criminal Procedure Act 2011 precludes second appeals unless the Court is satisfied that the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred (or may occur) unless the appeal is heard. The Court of Appeal recently summarised the principles
surrounding the granting of leave to bring a second appeal:4
[26] The threshold for leave to bring a second appeal is high. In particular, not every error at trial will amount to a miscarriage. This Court is slow to grant leave where success for an appellant would require this Court to reverse concurrent findings of fact below. That is particularly so where, as here, the trial was before a judge alone, giving the applicant the benefit of
two judgments giving reasons for those factual findings. [Footnotes omitted].
[17] Mr Mills confirms that he does not advance his case on the basis that a matter of public importance arises in this case; rather, he says that because it was factually impossible for him to be speeding in the manner alleged, a miscarriage of justice has occurred.
Discussion
[18] Mr Mills’ application largely reiterates his factual case advanced both in his hearing before the JPs, and again before the District Court Judge. He has not raised anything new in his second appeal, and he is essentially asking a Court to assess the same evidence for a third time. As noted from the extracts from the recent Court of Appeal decision cited above, a court will be particularly slow to interfere with factual findings made concurrently in the courts below.
[19] I have carefully considered the materials advanced by Mr Mills, including the evidence of Mr Gaylor, Diagram 15, as well as the notes of evidence. I am not satisfied that a miscarriage of justice will arise if I do not interfere with the factual findings in the courts below.5
[20] Mr Mills’ case appears to me to be based on a misconception as to the layout of the road works. The traffic-management diagram included in Mr Hall’s brief (i.e. Diagram 15) depicts a compressed view of how the “stop/go one lane” road-works sites might be set out. Mr Gaylor confirms that the work zone at issue in this case was based on Diagram 15. Mr Mills accepts, however, that Diagram 15 does not represent the actual work zone in this case; rather it is representative of such work zones, but sets out matters such as sign spacing and so on.
[21] Mr Mills relies in particular in the text in the ‘box’ within Diagram 15, and the reference to 100 meters in row “A”, “Sign Visibility Distance”. He says that on this basis, and in conjunction with Mr Gaylor’s evidence referred to above, it is clear that the “stop/go” sign or person was 100 meters within the 30km work zone.
Mr Mills also took me to his second diagram attached to his notice of appeal, on which he shows that, on his evidence, the queue from the stop/go sign or person at the time Mr Mills entered the zone extended back 80 meters, thus leaving only
20 meters between the commencement of the 30km/h zone and the end of the queue at the stop/go sign (or person). On this basis, Mr Mills submits that it was factually impossible for him to be speeding at 59 km/h some 100 to 300 meters6 within the
30km/h zone.
[22] Having reviewed the evidence, and in particular the materials relied on by Mr Mills, I am not satisfied that the evidence demonstrates that it was factually impossible for Mr Mills to be speeding within the zone, as demonstrated by the evidence of Constable Black. In particular, I do not read Mr Gaylor’s evidence, or Diagram 15, as confirming that the stop/go sign or person is located only 100m within the 30km/h zone. I questioned Mr Mills about this a number of times at the hearing, and he did not point to any other evidence to that effect. On this basis, it is by no means clear whether the spacing between the commencement of the 30 km/h zone and the stop/go sign or person will in all cases be 100m.
[23] There is, therefore, in my view nothing in Mr Gaylor or Mr Hall’s brief (i.e.
Diagram 15) that materially contradicts the evidence given by Constable Black.
[24] As with the District Court Judge, I agree that it was open for the JPs to accept the factual evidence of Constable Black, being that Mr Mills was driving at 59 km/h in a 30 km/h speed area.
Conclusion
I dismiss the application for leave to appeal.
Fitzgerald J
0
0
0