O v Police HC Rotorua CRI 2006-067-615
[2007] NZHC 1094
•17 October 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI 2006-067-615
O
Appellant
v
THE POLICE
Respondent
Hearing: 12 October 2007
Appearances: Mr O in person
Mr M Corlett for the Respondent
Judgment: 17 October 2007
JUDGMENT OF ALLAN J
In accordance with r 540(4) I direct that the Registrar endorse this judgment with the delivery time of 4:00 pm on Wednesday, 17 October 2007
Copies to:
Mr R N O , 288 McDonald Road, RD2, Whakatane (Appellant) Crown Solicitor, PO Box 740, Rotorua
O V THE POLICE HC ROT CRI 2006-067-615 17 October 2007
[1] This is an appeal against conviction and sentence in respect of a decision of Justices of the Peace sitting in the Taupo District Court on 11 June 2007. The Justices found the appellant guilty on a charge of driving a vehicle on a road at a speed exceeding 100 km per hour, being the applicable speed limit. He was fined
$120 and ordered to pay Court costs of $130.
Background
[2] On 1 November 2006, the appellant was driving his motor vehicle on State Highway 1 near Rangipo. The speed of the appellant’s car was checked by Constable Francis by reference to a Stalker DSR radar device, which indicated that the appellant’s car was travelling at 120 km per hour. Constable Francis stopped the appellant’s car and issued him with an infringement notice requiring payment of an infringement fee of $120.
[3] During a discussion with Constable Francis, the appellant asked to inspect the daily log book for the Stalker DSR advice. That request was declined.
[4] The appellant sought a hearing in respect of the infringement notice. This appeal follows that hearing.
The appellant’s argument
[5] The appellant relies on four primary arguments:
a) The Justices failed to give sufficient reasons for their decision or to deal adequately with the issues raised for their determination;
b)The infringement and reminder notices issued by the prosecution did not conform with the requirements of the Land Transport (Infringement and Reminder Notices) Regulations 1998 and were null and void;
c) Constable Francis’ refusal to disclose his daily log book to the appellant at the scene justifies the inference that the Constable had not completed his usual daily testing procedures in respect of the Stalker DSR and that there must therefore be a reasonable doubt about the accuracy of that device;
d)The Justices improperly consulted the police during an adjournment regarding the legal position as to the adequacy of the infringement and reminder notices, and in doing so breached the rules of natural justice.
[6] I will discuss these arguments in the foregoing order.
Failure to give reasons
[7] It is fair to say that the reasons given by the Justices were succinct. In its entirety, their decision reads as follows:
Thank you for pointing out this change. We have taken advice and the old ticket and the new ticket meets the statute. That old ticket was substituted – it was a change of style. The information contained is still the same, the time, place etcetera is still relevant. So, the officer issuing you with a ticket which has been superseded, it still carries the same weight. So, interesting but it is still a legal document. Thank you. We find the case proven. The infringement fee stands at $120.00, Court costs of $130.00 thank you.
[8] While the Justices’ reasons covered briefly the appellant’s argument as to the validity of the infringement and reminder notices, they do not expressly refer at all to his argument about the log book.
[9] It is highly desirable that Justices of the Peace sitting as judicial officers in the criminal jurisdiction of the District Court give reasons for their decisions. In a leading authority on the point, R v Jefferies [1999] 3 NZLR 211, Richardson P, delivering the judgment of the Court of Appeal said (at p 216):
The provision of sufficient reasons for decision in summary proceedings is always highly desirable. What is appropriate must depend on the nature of the case and the issues involved. In some cases a sentence or two will be sufficient. But the giving of reasons is not an inflexible rule of universal application. The failure to do so does not automatically vitiate the decision.
The High Court on appeal is required to exercise its jurisdiction under ss 119 and 121 in accordance with the scheme and purpose of the legislation.
[10] As is pointed out in Jefferies, the High Court is empowered to hear and determine every general appeal pursuant to s 121 of the Summary Proceedings Act
1957, in such fashion as the Court thinks fit. It is given a range of options as to how to proceed.
[11] In the present instance, I am satisfied that, although the reasons here were somewhat abbreviated, they were sufficient in the circumstances in the sense that both the appellant and this Court are able to discern the basis upon which the Justices found the prosecution case to have been proved.
[12] It is relevant to observe, in particular, that there are no factual disputes between the prosecution and the defence. The appellant’s arguments involved a point of law (the validity of the Infringement and Reminder Notices) and the drawing of inferences from undisputed facts (the logbook point) respectively. There is no argument about the accuracy of the notes of evidence. It has proved possible for both parties to conduct the appeal from the record as it stands. Neither party, in my opinion, has been prejudiced by the somewhat abbreviated character of the reasons given by the Justices.
Notice validity
[13] On 10 October 2006, the Land Transport (Infringement and Reminder Notices) Amendment Regulations 2006 (the Amendment Regulations) came into force. They amended Schedules 2 and 5 of the principal regulations in several respects. The amendments were purely formal in character. I set out the detail of the amendments as explained in the respondent’s points on appeal:
18. Inter alia, the as Amendment Regulations amended Schedules 2 and
5 of the Regulations as follows:
“5 Schedules 1, 2, and 3 amended
The infringement notices in Schedules 1, 2, and 3 are amended-
(a) by omitting “Name:” and substituting in each case “Full name:”; and
(b) by omitting “Address:” and substituting in each case “Full address:”.
6 Schedule 5 amended
(1) The section headed TO DEFENDANT” in the reminder notice in Schedule 5 is amended–
(a) by omitting “Name:” and substituting “Full name:”;
and
(b) by omitting “Address:” and substituting “Full address:”.
(2) The section headed “SERVICE DETAILS” in the reminder notice in Schedule 5 is amended-
(a) by omitting “[To be completed only on copy to be filed in Court]”; and
(b) by inserting “at [Address **] after “[Method of service *]” under the heading “REMINDER NOTICE”; and
(c) by inserting “**Full address at which the reminder notice was served” below “Registered post or ordinary post”.
(2) The section headed “NOTES TO DEFENDANT” in the reminder notice in Schedule 5 is amended-
(a) by omitting “understanding” and substituting
“understand”; and
(b) by inserting in paragraph 7(3)(a) “, or particulars of a reminder notice in respect of the offence have been provided for filing in court,” after “A reminder notice in respect of the offence has been filed in court”. “
19. The explanatory note to the Amendment Regulations relevantly provides:
“These regulations amend the Land Transport (Infringement and
Reminder Notices) Regulations 1998 to-
• clarify name and address requirements in infringement notices and a reminder notice.
• reflect changes (made by the Summary Proceedings Amendment Act 2006) to the summary procedure for infringement offences in section 21 of the Summary Proceedings Act 1957:
• correct a drafting error.
These regulations come into force on 10 October 2006.”
[14] It is common ground that both the infringement notice and the reminder notice provided to the appellant were in the forms prescribed in the regulations prior to 10 October 2006, although the police ought to have used the amended forms.
[15] The appellant says that in the particular circumstances of this case, the forms were a nullity and the appeal must accordingly be allowed. He focuses in particular on the different provisions for names and addresses but, as I understood him, he argues that any non-complying feature of either the infringement or reminder notice was sufficient to render it a nullity.
[16] Mr Corlett argues that the discrepancies in the form of the documents fall within the provisions of s 204 in the Summary Proceedings Act 1957. That section provides:
204 Proceedings not to be questioned for want of form
No information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any District Court or by any other Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.
[17] Mr O says the case does not fall within s 204. His argument is that the section is designed to cover instances of minor administrative error. Regulation (3) of the Land Transport (Infringement and Reminder Notices) Regulations 1998 requires that:
Every infringement notice for a moving vehicle offence must be in the form set out in Schedule 2.
Mr O argues that, given the imperative character of that requirement, the police are not permitted simply to use up their old stock of forms before complying with the new legislation, although he conceded that had the police modified the notices by hand, then that might have been sufficient to save them. He argues that it is a proper inference from the evidence that, as a matter of policy, the police have decided to use up old stocks of non-complying forms before utilising the new forms.
[18] There are, I think, two complete answers to Mr O ’s submissions on this point. In Hall v Ministry of Transport [1991] 2 NZLR 53 (CA), the provisions of s 204 were held to apply to infringement notices. Moreover, s 204 is to be given a purposive interpretation; at pp 58-59 of Hall, Cooke P, delivering the judgment of the Court of Appeal, said:
… there is the possibility of a form so gravely defective that it must be totally ignored, but that is not this case. Subject to that possibility, defects in the form will not themselves vitiate the proceedings unless there has been a miscarriage of justice, which again is not this case.
[19] Here, the differences between the forms are immaterial for present purposes. Mr O does not claim to have been prejudiced in any respect. He simply argues that the prosecution was bound to use the forms precisely as laid down by the regulations then in force and that, in the absence of some inadvertent slip on the part of the prosecution, s 204 does not apply.
[20] I am satisfied that that is not the law. Section 204 is applicable. There can be no question of prejudice, let alone a miscarriage of justice.
[21] The appellant’s argument on this point fails on a second ground also. His argument is premised on the proposition that the police have simply decided to use up their old stocks of infringement and reminder notices before turning to the use of amended forms. There is no evidence at all about that. Constable Francis said that he picked up the stocks of books of infringement and reminder notices as he needed them. There was no other evidence about police policy or about the holding of stocks of forms.
[22] The appellant’s argument therefore fails also for want of a proper evidential foundation.
The log book
[23] The appellant was, for many years, a member of the New Zealand Police and has significant experience in traffic enforcement. Upon receiving an infringement notice, he asked Constable Francis to show him the daily log book relating to the
Stalker DSR unit. Constable Francis declined. He said in evidence that he had become apprehensive about the appellant. A copy of the relevant page of the log book was sent to the appellant some time later.
[24] The appellant said that he entertained a doubt about Constable Francis’ credit-worthiness. That suspicion appears to have had its genesis in what the appellant regarded as improper discounting of his speed in the infringement notice written out by Constable Francis. The Constable had indicated to the appellant when apprehended that he had clocked his speed at 121 km per hour but the infringement notice referred only to 120 km per hour, so bringing the case within a lower infringement fee band. The appellant said that such discounting was not a permitted practice within the police.
[25] In evidence, Constable Francis said that although he had seen the appellant’s speed reach 121 km per hour on his radar, the reading was 120 km per hour when clocked and accordingly that was the figure which appeared in the infringement notice. The appellant did not suggest at the hearing of the appeal that it was wrong for the Constable to have used the lower figure, but at the time of apprehension the appellant was suspicious of the Constable. He thought that the Constable’s refusal to show him the log book might be consistent with a failure to have filled in the log book earlier that day and possibly a failure to have conducted a daily test on the Stalker DSR unit at all.
[26] Be that as it may, the appellant, quite properly, accepts that the Constable was not obliged to show him the log book, nor indeed is the maintenance of a daily log book directly relevant to proof of this offence: see Parker v Police HC PMN AP15/97 5 June 1997 (at p 5) and Wilson v Police HC AK A249/00 28 September
2001 (at [15]). Failure to provide it to the appellant cannot therefore be said to have prejudiced the appellant in any way. Mr O ’s argument appears, as Mr Corlett submits, to be aimed at undermining the prosecution evidence as to the accuracy of the Stalker DSR unit. On that point, the appellant is faced with s 146 of the Land Transport Act, which provides:
146 Evidence of testing and accuracy of speed-measuring devices, etc
(1) In proceedings for a speeding offence against any bylaws or enactment, any other offence against this Act, or an offence against the Road User Charges Act 1977, the production of a certificate (or a document purporting to be a copy of the certificate) purporting to be signed by a sworn or non- sworn member of the Police authorised for the purpose by the Commissioner or by a person authorised for the purpose by the Director, as to the testing and accuracy of any equipment or device to which this section applies that is referred to in the certificate, is, in the absence of [proof] to the contrary, sufficient proof that the equipment or device referred to was tested on the date specified in the certificate and was accurate on the date of the alleged offence.
(2) Every document purporting to be a copy of a certificate issued under this section is, in the absence of proof to the contrary, to be presumed to be a true copy.
(3) Every certificate issued under this section is, in the absence of proof to the contrary, to be presumed to have been signed by a person duly authorised to sign it; and it is not necessary for any such certificate to show on its face that the person signing it was so authorised.
(4) This section applies to distance-measuring devices, speed-measuring devices, approved vehicle surveillance equipment, and tuning forks used to check such devices or equipment.
(5) The fact that any equipment or device to which this section applies was tested before or after the date of the alleged offence does not of itself affect the validity of any certificate given under this section in relation to the testing of that equipment or device. However, any testing must not be more than 12 months before the date of the alleged offence.
(6) In any proceedings where a certificate has been produced under this section, the court may, on application made not less than 14 days before the hearing of the charge concerned, and if satisfied that there is good cause to do so, set aside the certificate and require the accuracy of the equipment or device to be established by evidence other than the certificate.
[27] A certificate of accuracy dated 11 December 2005, prepared in accordance with s 146 of the Act, was produced to the Court. The certificate was not challenged by the appellant. The Justices were therefore entitled to find the accuracy of the Stalker DSR unit established.
The Justices consult
[28] The appellant was given leave at the conclusion of the evidence before the Justices to make submissions to them on the question of the validity of the infringement and reminder notices. When legal argument had concluded, the Justices retired for a period. The appellant said that the Court taker, having ushered
the Justices out of Court, returned to say that she understood that they were consulting with senior personnel at the Taupo Police Station. After about 15 minutes, the Justices returned to announce the decision set out earlier in this judgment. The appellant expressed his dismay at the hearing of the appeal that the Justices should consult senior police officers in a case in which the police were prosecuting him. Had that occurred, then I agree that the appellant would be entitled to be very seriously concerned. While Justices of the Peace might well consult a District Court Judge in the event that a difficult issue of law arises for their consideration, it would be quite wrong, of course, for them to take advice out of Court from a member of the police without at least disclosing to the appellant what had occurred.
[29] Here, however, there can be no certainty that the Court taker was correct in her understanding and because this present appeal is by way of re-hearing, the appellant has had an opportunity to re-argue his case in its entirety. Moreover, the legal conclusion to which the Justices came was, in my opinion, correct. The appellant has accordingly suffered no prejudice; in recognition of that, the appellant responsibly raised the matter not so much as going to his conviction, but rather out of concern for the integrity of the judicial process.
Result
[30] I am satisfied that there is no substance in any of the arguments advanced by the appellant. The appeal against conviction is accordingly dismissed. Although his notice of appeal included an appeal against sentence, I heard no oral argument on that aspect of the appeal. Given that the fine imposed was precisely the same as the infringement fee set out in the infringement notice, it cannot seriously be contended that the penalty was inappropriate. The appeal against sentence is likewise dismissed.
C J Allan J
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