O v Police Cri-2010-409-7 HC Christchurch
[2010] NZHC 435
•16 March 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2010-409-000007
O
Appellant
v
POLICE
Respondent
Hearing: 11 March 2010
Appearances: Appellant in person (with McKenzie friend) K Basire for Police
Judgment: 16 March 2010
RESERVED JUDGMENT OF HON. JUSTICE FRENCH
Introduction
[1] The appellant, Mr O , was charged under the infringement offence procedure with driving at a speed in excess of the applicable speed limit.
[2] Following a defended hearing in the District Court, two Justices of the Peace found the charge proved and fined Mr O $170.
[3] Mr O now seeks to overturn that decision.
O V POLICE HC CHCH CRI-2010-409-000007 16 March 2010
The hearing before the Justices
[4] At the hearing, the prosecution called two police officers.
[5] They testified they were travelling south in an unmarked patrol car on a stretch of Marshlands Road between the railway tracks and the Guthries Road turnoff when they observed a Mercedes vehicle travelling in the opposite direction. It was common ground that the speed limit in the area is 80 kilometres per hour. Using an approved DSR radar unit, one of the officers locked the speed of the Mercedes at 102 kilometres per hour, ie 22 kilometres in excess of the permitted speed limit. According to the officers’ evidence, there were no other cars on the road and the Mercedes was the only vehicle in the beam.
[6] The officers further testified that they then executed a U-turn and pursued the vehicle northwards, stopping it near the railway tracks. One of the officers estimated their speed during the pursuit at 120-130 kilometres per hour, and estimated that they stopped the vehicle south of the railway tracks “maybe five to 600 metres south”.
[7] Mr O did not call any witnesses, but gave evidence himself. He did not dispute he was the driver of the Mercedes. Nor did he dispute the accuracy of the patrol car’s speedometer and the radar equipment, the prosecution having produced the required certificates of accuracy. Mr O also accepted there were no other cars on the road at the relevant time.
[8] However, Mr O claimed he could not have been speeding in the stretch of road between the Guthries Road turnoff and the railway tracks for the following reasons:
i)He had not even reached the Guthries Road turnoff when the police car appeared behind him with flashing red and blue lights. He had earlier passed another car heading south which he now assumed must have been the police car before it did its U-turn.
ii)Mr O had been keeping an eye on his speedo and had checked it shortly before the incident. It was only showing 85 kilometres per hour, and he did not notice his car accelerate excessively following the last check.
iii)It would have been physically impossible for the police officer to have clocked a car between the railway tracks and Guthries Road, then execute a U-turn and still be able to catch the car before it reached the railway tracks.
[9] In finding the charge proved, the Justices stated:
[1] The charge is that you drove a vehicle on a road, and that is not in dispute that you were on a road, at a speed exceeding 80 kilometres an hour being the applicable speed limit. I think you have agreed that 80 was the speed limit and indeed you admitted that you were going at least 85 so in effect you were admitting guilt even at that level. However, the infringement notice was issued on a case of speeding at 102 kilometres per hour. That is 22 kilometres over.
[2] We have heard evidence from Amanda Gordon who gave evidence that she was the person in charge of the radar that night, although she was still learning, and she produced a certificate of accuracy both of the vehicle they were in and of the speedometer, certificate of accuracy of the odometer and the logbook where it was actually clocked at 102. Sergeant Richardson, who was driving the car, who has a lot of experience produced the certificate of proficiency in operating that.
[3] We in turn have had a lot of experience of these sorts of charges like this and it is quite clear that the radar operates either a vehicle coming in the opposite direction and it compares it with the vehicle that is travelling or it can do it another way and that is what it was doing in your case travelling in the opposite direction, clocks at 102, they turned around and stopped you and as the sergeant says it appears to be cut and dry. No matter what you thought you were travelling at it is clear that it has recorded you as travelling at 102 kilometres an hour.
[4] We find the charge proved. It is not a conviction because it is only an infringement offence. You are fined $170 for 22 kilometres an hour over the speed limit and Court costs of $130.
Grounds of appeal
[10] Mr O advanced three grounds of appeal:
i) The Justices wrongly excluded evidence he wished to adduce.
ii)The police failed to specify where the alleged offence occurred.
iii) The police evidence was not consistent with the facts. [11] I turn now to consider each of these grounds.
Wrongful exclusion of evidence
[12] The evidence which Mr O said he wished to produce was a Wise directory map of the area showing the various roads. Mr O had marked points on the map showing the different locations of the two vehicles during the incident based on his understanding of the evidence. The map did not show distances.
[13] According to Mr O , he specifically asked the Justices to be able to produce the map, but his request was denied on the grounds it was “unnecessary”. He could not remember at what stage of the hearing he made his request, and there is no record of it in the hearing transcript.
[14] In my view, even if the Justices did decline to see the map, that cannot be grounds for an appeal. The map was simply a visual aid and the Justices had a discretion whether they wished to consider it or not. They were entitled to take the view that it was unnecessary to their deliberations. They may have been familiar with the road, or simply considered they had a sufficiently clear understanding of the scene from the testimony without needing to see a map.
[15] Further, having considered the map myself, I do not regard it as adding anything to the evidence given by Mr O .
[16] The map was not material to the outcome and would have made no difference.
Police failed to specify where the offence occurred
[17] At the hearing before the Justices, Mr O testified that when he was first stopped by the patrol car he asked the female officer where it was they had caught him speeding. According to his evidence, the reply was that the officer did not need to tell him that. When this was put to the officer in cross-examination, she said she had no recollection of such a conversation. There was, however, contemporaneous documentation that was consistent with the officer’s evidence-in- chief about location, as well as evidence that the general location as per her evidence was written on the ticket presumably given to Mr O . In cross- examination, the other officer acknowledged they could not say exactly where on Marshlands Road the Mercedes was, other than that it was on the straight stretch of road between the railway track and Guthries Road, at the Guthries Road end of it.
[18] In their decision, the Justices do not say whether they accept or reject Mr O ’s evidence regarding the roadside conversation. However, in my view it was not necessary for them to make a finding on that particular issue one way or the other. What was material was the reliability of the evidence that the Mercedes was the only vehicle travelling north on the straight stretch of Marshlands Road at the relevant time and that it was the only vehicle locked in the beam.
[19] The fact the officers were unable to say precisely where on the straight stretch the car had been clocked is not in my view a matter that can reasonably be relied upon as significantly detracting from the reliability of their testimony generally.
[20] In short, even if the officer did make the comment attributed to her by Mr
O , it would have made no difference to the outcome.
The police evidence was not consistent with the facts
[21] This ground of appeal relates to Mr O ’s contention that had he been speeding on Marshlands Road between the Guthries Road turnoff and the railway tracks as claimed, it would have been physically impossible for a police car
travelling in the opposite direction to have caught up with him before he reached the railway tracks.
[22] However, this was a matter raised at the hearing before the Justices. It was put to the officer in cross-examination and rejected by him. In the absence of expert evidence as to distances and speeds travelled, the Justices were entitled to accept the evidence of the officer.
[23] As submitted by Ms Basire, there was ample evidence for the Justices to find the charge proved, given that:
a) there was no challenge to the accuracy of the radar device used;
b)both Mr O and the police agree that his was the only vehicle travelling on Marshlands Road at the relevant time; and
c) he himself admitted to driving over the speed limit.
[24] Furthermore, in so far as there were issues of credibility, the Justices had the advantage of seeing and hearing the witnesses. Having reviewed the evidence myself, I see no reason to depart from their findings.
[25] Mr O has failed to persuade me there are any grounds for overturning their finding.
Appeal against sentence
[26] Mr O also appeals, at least nominally, against the sentence.
[27] The fine of $170 is, however, a standard infringement fee proscribed by Regulation 4 of the Offences and Penalties Regulation Schedule 1A and 1B. It is the applicable fine for speeding where the excess speed is between 20 and 25 kilometres over the relevant speed limit.
[28] This sentence was entirely appropriate.
Outcome
[29] The appeal is dismissed.
Solicitors:
Crown Solicitor’s Office, Christchurch
Copy to Appellant
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