O v Police HC Wanganui CRI 2007-483-18

[2007] NZHC 1377

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2007-483-000018

BETWEEN  O

Appellant

ANDNEW ZEALAND POLICE Respondent

Counsel:         Appellant in Person

R R M Simon for the Respondent

Judgment:      5 December 2007

ORAL JUDGMENT OF WILD J

[1]      The appellant appeals against conviction on a charge of exceeding the speed limit of 100 kph.  He was convicted after a defended hearing before two Justices in the District Court at Taihape on 23 August and fined $170 plus Court costs of $130. He was self-represented then, as he is today.

[2]      On 27 January the appellant was driving north on the Desert Road on State Highway 1.  He passed a stationary marked Police car facing south on the other side of the road.   The Police Office clocked the  appellant as travelling at 123 kph, executed a U-turn, activated his lights and followed the appellant until the appellant slowed and stopped.  The officer informed the appellant that he had been clocked at

123 kph, which the appellant denied.  The appellant was given a chance to view the speed recorded on the radar screen through the window of the patrol car.   The appellant claimed he could not see the screen properly and tried to get into the front seat of the patrol car, which the officer would not permit.   The officer completed issuing the infringement notice and made notes of the exchange between himself and

the appellant.

O V NEW ZEALAND POLICE HC WANG CRI 2007-483-000018  5 December 2007

[3]      The evidence before the Justices consisted of the Police Officer for the prosecution and the appellant for the defence.  The officer gave evidence that he had been sitting in his patrol car on the side of State Highway 1 when he noticed the appellant’s car travelling towards him.  He said the traffic at the time was not heavy, and that it was a fine, clear day with good visibility.   The appellant’s car was the only car in the beam of his radar at the time the speed was recorded, and the unit emitted a clear tone as per the code of operation.  The officer produced the relevant calibration certificates and his own certificate of proficiency in using speed detection devices.

[4]      The appellant gave evidence that as he came over a rise in the road he saw the Police Officer walking towards his patrol car, having stopped another motorist. The appellant said that as he approached the patrol car the officer jumped into the car and appeared to him only then  to  activate the radar.    The  appellant  submitted, therefore, that the officer could not have had time to operate the radar correctly, and that the speed recorded must have been stored in the device from a previous vehicle. He submitted further that he had been denied his right to see the speed reading on the radar screen, as he had been unable, because of glare, to see it through the window of the patrol car.

[5]      This direct conflict between the evidence of the Police Officer and that of the appellant required an assessment by the Justices as to the credibility of each witness. However, the Justices’ decision records only that they found the appellant guilty of the offence, and gives no reasons for the decision.  This is unfortunate.  In cases such as this, where the credibility of witnesses must form the basis for the decision, reasons should be given, even if only briefly, as to why the evidence of the prosecution has been preferred over that of the defence. R v Awatere [1982] 1 NZLR

644 and R v Jefferies [1999] 3 NZLR 211 remain the leading authorities on the necessity for reasons by Judges or Justices in the District Court. In Awatere at 648-

649 the Court of Appeal said:

The real issue is to assess what is practically possible against the ideal, and an appellate Court must be careful to keep in mind the multiplicity of individual cases of varying kinds which are being dealt with in the District Courts up and down the country.

[6]      In Jefferies at paragraph 16 Richardson P, delivering the Court’s judgment, said this:

16.…  R  v  Awatere  continues  to  govern  appeals  from  criminal proceedings in the District Court  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.

[7]      Jefferies  refers  to  a  decision  of  Fisher  J  in  Garratt  v  Police  HC  ROT AP32/976 6 June 1997 in which Fisher J commented:

In short, the Justices gave no reasons for their decision. Upon inquiry, Mr Chesterman ascertained that this is the normal practice for Justices of the Peace in this area. I find this news disturbing. The very act of articulating reasons is an important part of the reasoning process and is thus an important working tool for the decision-maker. The parties are entitled to know the reasons for the result. The right of appeal cannot be fully and effectively exercised in the absence of the reasons which had supported the original decision. The giving of reasons is an antidote to arbitrariness in decision- making.

[8]      Although, as stated in Jefferies, the lack of reasons does not of itself vitiate a decision, it makes the role of an appellate Court in trying properly to assess the decision under appeal difficult.

[9]      Here, the appellant’s defence essentially turned on whether the officer was sitting in his car as the appellant’s car approached, or whether, as the appellant contended, the officer ran back to his car and reached it too late to operate the speed radar correctly.   As the evidence of the Police Officer and the appellant were in direct conflict on this matter, the Justices, by their decision, obviously believed the officer and disbelieved the appellant.  From my reading of the transcript of evidence this was an assessment that was open to them.  The officer gave a clear and cogent description of events, which was supported by the contemporaneous record in his notes.  He was clear in his evidence-in-chief, and under cross-examination, that he was sitting in his car as the appellant’s car was approaching.  His description of the issuing of the speeding infringement ticket is clear.  His evidence as to the appellant

trying to get into the patrol car is consistent with the appellant’s own evidence.  By the officer’s account, the appellant viewed the speed radar screen from outside the patrol car and he did not need to get into it.  It seems logical that a Police Officer would not allow a member of the public to get into the driver’s seat of a patrol car. The transcript of evidence does not reveal any aspect of the officer’s evidence that appears contrived or exaggerated such as might call his credibility into issue.

[10]     The appellant, on the other hand, agreed at one point under cross-examination that he was trying to get to his destination “as quick as possible”.  And then he tried to mitigate this admission by saying that he had plenty of time.  In his submissions to me this morning Mr O   has reiterated that, telling me that he had two hours to get to Taupö.

[11]     The appellant presented himself in his examination-in-chief as a careful and safe driver, but admitted under cross-examination that this was the fifth speeding ticket he had received in the past three years.  He addressed me this afternoon on this aspect, that is as to the ramifications for him of the conviction under appeal standing in terms of demerit points, until I stopped him.

[12]     This is not a case such as Fisher J was dealing with in Garratt, where the credibility assessment required a careful  analysis  of  a number  of  factors  in  the evidence.  This is a simple matter of whether the officer was to be believed in his description of how he caught the appellant’s car in his radar beam.  In finding the offence proved, and convicting the appellant, the Justices obviously believed the officer’s account.   They found the officer to be a more credible witness than the appellant.  I reiterate that that finding was one open to them on the evidence they heard.

[13]     The appellant’s conviction stands.  There can be no issue with the sentence imposed.  A fine of $170 is the standard fine for a person who exceeds the applicable speed limit by more than 20 kph but not less than 25.

[14]     In the result the appeal against conviction and against sentence is dismissed.

[15]     I add that it is clear from the appellant’s submissions, both written and oral this afternoon, that he felt he was placed at a disadvantage during the hearing in the District Court.   He refers to the Police prosecutor “exceeding his authority” and “improperly leading the seemingly senior of the two JPs”.

[16]     He also objects to the fact that he was apparently told his sister could not appear as a witness.  She certainly could not give any relevant evidence about the events that day because she was not there.  The appellant was travelling alone.  This afternoon Mr O   has told me that he intended to call his sister as a character witness.  I do not consider the prosecution put Mr O  ’s character in issue.  All it did was ask him to accept that he had five previous speeding convictions.

[17]     Mr O   claims that his sister was then asked to leave the courtroom.  I am not sure why that occurred.  The usual order was the one made at the start of the proceeding, that is an order excluding witnesses except for the officer-in-charge.  If Mr O  ’s sister was not to give evidence then she should have been allowed to remain in the courtroom.

[18]     I inquired of Mr O   what prejudice he was suggesting flowed from her exclusion from the courtroom.  He told me that he wanted his sister to observe the proceedings.   He maintained to me this afternoon in his oral submissions that the record of the proceeding was incomplete, or inaccurate.   I asked him to give me examples of that, and he gave me two.  The first is that the record starts by noting the order  of  the  Justices  excluding  witnesses  except  for  the  officer-in-charge.    Mr O   poses the question, why?  His point, as I understand it, is that the reason for that standard order in criminal proceedings is not recorded.

[19]     His second example relates to the objection he took to the officer’s evidence- in-chief recorded at p2/10 of the record of the proceeding.  The transcript records Mr O   objecting but not the basis of his objection.   That I think is because Mr O   explained to me that his objection was that he did  not  agree  with  the officer’s evidence.  He considered it was untruthful.  With respect to Mr O  , that  objection  completely  misunderstands  the  procedure  in  a  defended  criminal

proceeding.  I cannot see that there has been any prejudice to the appellant from the exclusion of his sister.

[20]     Accordingly, as already indicated, the appeal both against conviction and against sentence is dismissed.

Solicitors:

Crown Solicitor, Wanganui for the Respondent