P v Police CRI-2009-404-127 HC Auckland

[2010] NZHC 2028

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-127

BETWEEN  P

Appellant

ANDPOLICE Respondent

Hearing:         22 March 2010

Counsel:         No appearance for Appellant

Sophie Duncan for Respondent

Judgment:      22 March 2010

[ORAL] JUDGMENT OF HUGH WILLIAMS J

Leave is granted to file this appeal out of time but appeal is dismissed.

[1]      On 20 January 2009 the appellant, Mr P   was convicted and fined $700 plus Court costs of $130 by Justices of the Peace in the North Shore District Court. The charge which gave rise to the fine was one of exceeding the speed limit, more particularly exceeding 80 kilometres per hour on state highway 17. Mr P   was “clocked” by the speed camera travelling at 132 kilometres per hour.

[2]      Procedurally, Mr P   did not appear in the North Shore District Court and it appears that the prosecution proceeded solely on the material provided by the Police and  letters  from  Mr  P  .  Similarly,  despite  being  advised  of  the  fixture  on

22 March 2009 and called on the public address system Mr P   did not appear at

the hearing of the appeal. He had previously indicated in written material filed with

P V POLICE HC AK CRI-2009-404-127  22 March 2010

the Court that he did not intend to appear. That notwithstanding Ms Duncan for the police advises that she emailed her helpful submissions to Mr P   so he knew what the police would be saying in relation to this matter.  He nonetheless chose not to put in an appearance.

[3]      Procedurally too, Ms Duncan makes the point that this appeal was filed out of time, but in order to deal with the matter on its merits leave will be granted to file the appeal out of time.

[4]      Ms Duncan notes that s 121 of the Summary Proceedings Act 1957 deals with the powers of the High Court on determining appeals and she makes the point that a discharge without conviction - which is the result Mr P   seeks - is within the powers of the Court.

[5]      In  fact,  putting  all  that  aside  the  position  as  it  currently appears  is  that Mr P   - as he said in his letter to the District Court dated 15 January 2009 - is a car enthusiast but not a “boy racer”.   He says “I have a love affair with Nissan GTRs” and describes the two which he owns.

[6]      What occurred apparently on the date he was speeding 12 September 2008 at Albany was that he had just uplifted the vehicle from a workshop and was on the point of travelling home. He said that he had to get unsuitable fuel and that as he was driving through the Albany Village “the motor started to misfire and generally play up”. That worsened because he had put sub-standard fuel in the car which was fouling the spark plugs at the 50 kilometres per hour at which he was then travelling. He said that he was “forced to make a decision quickly” and adopted the option of accelerating quickly to clear the plugs by running the motor at high revolutions. He said the road was clear at the time and visibility was good and he would not have done what he did had there been another car in sight. He says “in a normal car to clear a fouled spark plug a quick burst at full throttle for eight to ten seconds would normally do  the  job”.  In  this  case  he  was  surprised  by the  speed  of  the  car’s acceleration and in fact it did not clear the plugs on that occasion.

[7]      In none of the several letters written to the Courts concerning this matter does Mr P   explain why he could not stop the car at the side of the road and run the engine up to full revolutions or travel in under the speed limit but in a low gear which would have again run the engine up to full revolutions.

[8]      He asks that the conviction be overturned. There is however no basis for doing that. Mr P   was exceeding the speed limit by more than two thirds of the allowable speed at the time when he deliberately undertook the manoeuvre he describes.

[9]      As a result of travelling at more than 50 km an hour over the limit, the infringement B schedule meant that he would have been fined $630 in any event. He is not to be penalised for exercising his statutory rights and taking the matter first to the District Court and then on appeal but, as Ms Duncan says, the amount by which Mr P  ’s speed exceeded the allowable limit certainly justified the fine imposed. The maximum category of speed infringement fees ends at 50 kilometres per hour over the limit. Mr P   was travelling at 52 kilometres per hour over the limit and exceeded the speed limit by about two thirds.  The maximum fine for the offence of which Mr P   is convicted is $1,000. There is a precedent in the case of Kimber v

Police1 where in somewhat similar circumstances a fine of $800.00 plus Court costs

of $130.00 was upheld.

[10]     In these circumstances the onus is on Mr P   to show that in some way the conviction was incorrectly entered or the fine imposed was excessive. He has failed

to do either. The appeal is accordingly dismissed.

Solicitors:

................................................................

HUGH WILLIAMS J.

Crown Solicitor, PO Box 2213 Auckland 1140

Email:  [email protected]

Copy for:

Clark Andrew P  , 101 Penguine Drive, Murrays Bay, North Shore City 0630

Case Officer:      Raj[email protected]

1 Kimber v Police HC Timaru, CRI-2009-476-000019, 15 October 2009, French J.