O v Police HC Wellington CRI-20005-483-12

[2005] NZHC 97

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-20005-483-12

O

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 October 2005

Appearances: Appellant in person

M S Anderson for Respondent

Judgment:      6 October 2005

JUDGMENT OF GODDARD J

The hearing

[1]      Mr O   appeals against a finding by Justices of the Peace in the District Court at Marton that he drove in excess of 100km per hour on State Highway 1 in the vicinity of Rata on 12 February 2005.  The speed at which Mr O  ’s vehicle was clocked by a police officer using a Stalker DSR speed radar detector was 122km per hour.  When Mr O   was stopped by the police officer and it was explained to him why he had been stopped, Mr O   denied having travelled at 122km per

hour and initially declined to view the radar but then did so.  The officer said that

O V POLICE HC WN CRI-20005-483-12  6 October 2005

Mr O   then said he did not trust those machines and that he had “got[ten] off”

speeding tickets in the past.

[2]      The police officer concerned is qualified in the use of speed enforcement equipment and produced as evidence of that a certificate of his qualification to the Justices of the Peace.  He said his patrol car was fitted with a certified speedometer and  its  accuracy  was  checked  on  14  June  2004  and  a  12  month  certificate  of accuracy issued.  He produced a copy of that certificate of accuracy also.  The officer further said that before commencing duty on the day that he clocked Mr O   driving at 122km per hour, he had checked the speed radar detector to ensure it was operating correctly and on  completion of that  check  had  filled  in  his  log book detailing the tests and the results attained, and that the testing had indicated that the radar was operating correctly.  He also produced a copy of the log book page to the Justices.   The evidence he gave relating to his stopping of Mr O   was as follows:

At about 1703 hours I was on patrol in the vicinity of SH1 Rata.  I observed a  vehicle  coming towards  me.    I checked  its  speed  and  found  it  to  be exceeding the 100 km speed limit for that area.  I heard a clear Doppler tone. There was only one vehicle in the beam or within the receiving distance of the antenna.   I heard a clear Doppler tone and I locked the speed on the speed radar.  I signalled the vehicle to stop and I spoke with the driver.  The driver identified himself to me as the defendant Terence Padraic O   and he was driving a Toyota car registration BRE 291.  I identify that being the defendant.   I spoke to the defendant and explained the reason why I had stopped him.  The defendant denied travelling at 122 kph that I locked him on at.  He declined and then he did view the radar.  He was the sole occupant of  the  vehicle.     His  response  was  a  long  and  convoluted  one-way conversation about how he got off other tickets …

[3]      When  asked  by Justices  of  the  Peace  to  explain  to  them  how  the  radar machine works and what steps an officer takes when a vehicle comes onto the radar screen, the officer said:

Certainly but I’m not an engineer or anything.  In simple terms, sir, the radar has an antenna which produces a signal, goes out and is reflected back towards the receiving antenna. … That signal is received by the unit by a read-out showing the speed of the reflection signal or the target.  It is a clear Doppler tone.   A Doppler tone is a tone produced by the machine which identified if there is one or two signals in the machine and at the same time you check your ground speed against that which is indicated by the machine. If all of the things are there that is accepted as a correct reading, at which time the button is locked on the display.

[4]      In  relation  to  Mr  O  ’s  vehicle  the  Justices  of  the  Peace  asked  the following questions which were answered by the officer:

Q.       How many vehicles were in the range of the radar at that time? A.  In a straight line, one.

Q.       And whose vehicle was that? A.   That of the defendant’s.

Q.       And what speed did you lock the defendant’s vehicle in at?

A.       The defendant was travelling at 122 kph.  I was travelling at 97. Q. Is it possible that this reading was from a different vehicle?

A.       No.

[5]      In cross-examination of the officer, Mr O   challenged him over his estimation of the distance over which he claimed to have clocked him.  The officer replied that he had no idea of the distance.  Mr O   suggested that the distance between them had been more than a kilometre and that the officer could not possibly have estimated his speed accurately from that distance.  Mr O   then put it to him that it was Police policy not to issue a ticket if the distance in question was more than 275m.  The following passage of evidence is relevant:

Q.        … what distance in your estimation were you from me when you measured,  you  pushed  the  buttons  to  measure  and  bring  up  a register?

A.       I’ve got no idea sir.

Q.        Well you should because there is a limit to the range of those things and I’ve been told by you on the spot there was no limit, I’ve been told by the senior sergeant in Wellington there is no such limit and there’s no such limit in your manual.  It was 275 metres, don’t issue a  ticket  any  further  away  than  275  metres.    You  were  over  a kilometre away.  I was coming out of the hills.  I saw you way in the distance with your lights flickering, already flickering.  I looked at my speedo and I immediately thought, “oh, he’s caught somebody up ahead.  I’ll check my speed”, and I was doing 92, 91-92.  You say you couldn’t estimate it because it was well over a kilometre away, long past 275 metres.

[6]      Later, under re-examination, the officer clarified that he had been travelling towards Mr O   along a strait which is several kilometres in length when he heard the clear Doppler tone and the locked the radar on at 122km:

Q.        Just one question in re-examination.  It has been put to you by the defendant with regards to the fact that you were moving when you calculated his speed at 122.  Just so that the Court knows, can you explain to the Court whether you can actually take a reading of another vehicle whilst you are moving, you mentioned in your evidence your ground speed was 97 khp, or whether you have to be stationary or whether it can be both.  Can you explain that?

A.        Certainly.    The  device  I  was  using  to  check  the  speed  of  the defendant’s vehicle was a Dual Stalker radar.  It can be operated in stationary or moving mode and has a range, in the best conditions, oh, up to several kilometres.

Q.       And the conditions, what were they at the time?

A.       Fine and dry, traffic conditions was light I think, yes.

Q.        Would that, your position on the state highway, you stated that it was at SH1 Near Rata in your evidence?

A.       Yes.

Q.        What type of road is that as in curvature or is it hilly, is it a straight piece of road.  Could you explain that to the Court?

A.        Yes, that road through Rata is flat.  It’s got hills around it, some very moderate curves with longish straits.

Q.        When you observed the defendant was that on a straight piece of road or on a curvy piece of road?

A.        If I find the back of my ticket, I might’ve handed it back in.  Oh no, here we go.   My ticket records  that it  was  somewhere between Porewa and Silverhope.  Porewa is the start, if you’re heading north from here, is the start of a strait which goes for several kilometres. It’s a slight left hand bend and then another curve at Rata and then there’s a series of sweeping curves.   They’re all not curves that a normal motorist would have to slow at all for.  It’s a very good road and flat.

Q.        Would it not be ideal conditions for radar detection, is it, or is it not a good place to observe unobstructed views of?

A.       Oh yes, it’s entirely satisfactory for the use of speed radar.

[7]      During the course of the hearing Mr O   demanded several times to know what the servicing or maker’s manual stated the range of the device to be,

particularly in relation to the officer’s evidence that the radar he was using was operative over several kilometres.

[8]      When he came to give his own evidence Mr O   reiterated his view that the officer was so “far out of range that it wouldn’t have mattered what it read … what it read was irrelevant”.  He said:

Q.        We have radar to say that you were in that radar beam and that radar beam said you were doing 122?

A.        But it doesn’t say anything else.  It doesn’t say he was moving.  It doesn’t say that he was that far out of range that it wouldn’t have mattered what it read.  I’m saying what it read was irrelevant sir.  It must’ve been.   I looked, when I saw the lights way ahead, a long way ahead, up to nearly the next corner I was doing 92, no more, what I’ve said there, 91 0r 92.  I thought, ‘I’m okay’.  Would I be silly enough to put my foot down with a policeman ahead of me?

[9]      Mr O   also produced to the Justices a three page letter of explanation that he had written to the New Zealand Police Infringement Bureau and in which he somewhat inconsistently stated that when he saw the police car with its lights on it was between a kilometre and 850m away.  In response to being questioned about the range he had identified in that statement, Mr O   airily said:

Oh well, yes, but that is miles away.

The decision of the Justices of the Peace

[10]     At the end of what was clearly a difficult and volatile hearing, the Justices of the Peace delivered their decision as follows:

[1]       Mr O  , you were charged with exceeding 100 kilometres by 22 kilometres an hour.  The Court has heard evidence that this was recorded on radar by a qualified operator whose equipment was certified of accuracy. The radar is designed to operate whilst stationary or moving.

[2]       Evidence was given that the defendant’s car was the only one in the beam at the time and, as written in the training module, was within the stated range.

[3]       In Mr O  ’s defence he produced no witnesses or evidence to indicate the charges were wrong.

[4]       The  case  is  proved.    However,  a  benefit  of  the  doubt  will  be accorded the defendant and on the charge you are order to pay $120.00 plus costs of $20.00. You may stand down.

The appeal

[11]   The main ground of appeal advanced by Mr O   was whether the prosecution had proved the range over which the Stalker DSR speed radar detector could accurately be used, and had proved to the requisite standard that he had been clocked at 122km per hour within that operating range.   Mr O   produced a letter written by Assistant Commissioner Marshall, which he had received on the morning of the appeal.  In that letter Assistant Commissioner Marshall advised that the accuracy of the Stalker DSR speed radar detector does not change with range and that it has been tested over a flat runway surface as accurate from 850-1000m. Where there is undulating terrain with trees or buildings the detection range may be limited to as little as 200m, if the signal is absorbed into the trees and buildings.

[12]     Mr O   emphasised that the burden of proof was on the prosecution and that it was not for him to produce evidence or witnesses to say that the device was not working or what its range was.  He said that the prosecution had failed to prove that he was within range and that, in any case, he was out of range.  He submitted that the police officer who clocked him had erroneously said that the range of the device was up to several kilometres and that he could not possibly have got an accurate reading over several kilometres.

[13]     A further ground of appeal was that the hearing was unfair because the police officer concerned had continuously avoided answering his cross-examination questions and the prosecuting sergeant had obstructed Mr O  ’s case by interrupting a number of his questions.   Mr O   said that furthermore he was given the wrong Notice of Appeal form when he left the Marton Court.

Decision

[14]     The prosecution case was established by the following evidence given by the police officer concerned: the identifying particulars of his patrol vehicle; that it has a calibrated speedometer that had been checked as operating accurately within the immediately preceding 12 month period; that the Stalker DSR speed radar detector was calibrated and certified as at the date of the infringement, and had again been checked by the officer on the day of the infringement; and that the road where Mr O   was stopped was flat and straight and satisfactory for the range of the device.

[15]     The offence is one of strict liability.  Once the prosecution had established that the speedometer of the patrol car and the device were both operating correctly on the day in question, the onus was on Mr O   to challenge that evidence by, for example, calling expert evidence to the contrary.  Otherwise, the Justices of the Peace were bound to accept the prosecution evidence on those matters.

[16]     The evidence as to the range over which the device can accurately detect speed makes it clear that an upper end of the range has not been definitively determined.   As the letter from the Assistant Commissioner makes clear, it is a matter of practical application in any given situation.  All his letter indicates is that the device has been tested as accurate over a flat strait of up to one kilometre.  That does not mean it is inaccurate over a greater range in similar circumstances.   The evidence in the present case is that Mr O   was clocked whilst travelling over a long strait towards the police officer, who himself was moving towards Mr O   over the same strait at 97km per hour.   Furthermore, when the Justices obliged Mr O   by reading his earlier written explanation to the Bureau, they discovered that he himself had said that when he first saw the patrol car with its lights on it was between a kilometre and 850m away from him.

[17]     The pivotal factor is as found by the Justices of the Peace in paragraph [2] of their decision.  That is, that Mr O  ’s car was the only one in the radar beam at the time that the device gave a clear tone identifying a signal that it could only have

picked up from Mr O  ’s approaching vehicle.  On hearing the tone the officer immediately  locked  Mr  O  ’s  speed  on  the  radar.     Mr  O    himself confirmed that there was no other vehicle on the road at the time, so there is no possibility that the radar detected a signal from any vehicle other than his.

[18]     The further points made by Mr O   about the fairness of the hearing before the Justices of the Peace have no substance.

Conclusion

[19]     The appeal is dismissed.

Solicitors:

Luke, Cunningham & Clere, Wellington, for Respondent

Delivered at 9.30 am on Thursday 6 October 2005.