Paice v Police
[2014] NZHC 1331
•13 June 2014
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CRI-2014-406-000001 [2014] NZHC 1331
BETWEEN KARL JOSEPH PAICE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 13 June 2014 Counsel:
Appellant in person
A L Mills for RespondentJudgment:
13 June 2014
JUDGMENT OF COLLINS J
Introduction
[1] This judgment explains why I am dismissing Mr Paice’s appeal against his conviction for encroaching on a lane that was not available to him when he was driving a vehicle and making a right-hand turn.1
[2] Mr Paice’s appeal against conviction is based upon the ground that the Justices of the Peace who heard his case erred in allowing the prosecution to introduce into evidence a query vehicle response (QVR) document from the Police National Intelligence database. Mr Paice says that allowing that information to be introduced caused a miscarriage of justice.
[3] As the alleged offence occurred on 9 March 2013, the appeal is governed by the Summary Proceedings Act 1957.2
1 Land Transport Act 1998, s 40; Land Transport (Offences and Penalties) Regulations 1999, r 4; Land Transport (Road User) Rule 2004, r 2.5(2)(A).
2 Summary Proceedings Act 1957, ss 115 and 121(2).
PAICE v NEW ZEALAND POLICE [2014] NZHC 1331 [13 June 2014]
Background
[4] The prosecution case was that on 9 March 2013, Senior Constable Edwards was driving a marked police patrol car in Blenheim. At about 12.37 pm, he was west-bound on Maxwell Road approaching Queen Street. He was following two motorcycles, one displaying the registration number 45MC.
[5] The rider of the bike with the 45MC registration number had a large build and was wearing black leather clothing. The pillion passenger had long, light brown, curly hair protruding from beneath the passenger’s helmet. At Maxwell Road and Queen Street intersection the rider overtook a west-bound utility motor vehicle and proceeded to make a right hand turn onto Queen Street. In doing so, the motorcyclist failed to keep left, and cut across the “Give Way” sign to such a degree as to be fully on the opposite side of the roadway as the rider entered Queen Street.
[6] The motorcyclist continued riding in the incorrect lane before correcting his path as he reached the Queen Street and George Street intersection.
[7] Due to the density of the traffic, Senior Constable Edwards was unable to stop the motorcycle.
[8] At about 4.39 pm, Senior Constable Edwards observed a motorcycle that matched the one he had observed earlier and had the registration number 45MC. It was travelling east on State Highway 63. The rider and the pillion passenger’s physical characteristics matched the rider and passenger he had observed at
12.37 pm.
[9] Senior Constable Edwards activated the patrol lights and the siren on the patrol vehicle, and stopped the motorcycle. When he spoke to the rider, the rider identified himself as Mr Paice. When asked why he had cut the corner from Maxwell Road onto Queen Street earlier in the day, Mr Paice stated, “I dispute that”.
[10] Senior Constable Edwards subsequently issued an infringement offence notice. The fee was $150.
Justices’ of the Peace decision
[11] The issue before the Justices of the Peace was identity. Mr Paice, who was self-represented, disputed that he was the motorcyclist that Senior Constable Edwards observed at 12.37 pm.
[12] The Justices of the Peace heard evidence from one witness, Senior Constable
Edwards. They analysed the evidence that was before them, which included: (1) the infringement notice;
(2) Senior Constable Edwards’ brief of evidence;
(3)a black and white photograph of the appellant taken on the date of the offence; and
(4) the QVR document.
[13] Mr Paice did not give evidence, but instead made submissions from the body of the Court.
[14] The QVR had not been disclosed to Mr Paice before the hearing. It was referred to during the re-examination of Senior Constable Edwards by the police prosecutor:3
Q. Who does that show the bike [is] registered to?
A. The current owner listed here is a Shereen, first name Shereen, middle name Debbie, surname Koppens, K-O-P-P-E-N-S.
Q. And is there any other information on that that tells you about the registered owner and the defendant?
A. There’s a – some lines of text at the base. Q. Can you read that text to the Court please.
A. … It says, “Vehicle is owned and used by 45s motorcycle gang, it is registered to Shereen Koppens who is the de facto spouse of Karl Paice, the president of the gang. She does not hold a motorcycle
3 Notes of Evidence at page 21, line 12.
licence and he is disqualified. Likely registered to her to avoid seizure for unpaid fines. And obtain intelligence at every opportunity”.
[15] The Justices of the Peace addressed the QVR document in the following way:4
The defendant, in his cross-examination, asked the officer had he proved who was on the motorcycle, he actually asked this question to the Court as well. The defendant was directed to ask this question again along with his questions regarding the evidence so far.
…
In re-examination by prosecution, questions were asked if the picture showed the person who cut the corner and this was affirmed, and the bike was a Harley Davidson and this was the one that the officer confirmed he had seen earlier. A document was produced from the prosecution file with registration and Land Transport Agency details of the owner of the motorcycle, being registered to a Shereen Koppens who was the owner, and that the text on the document showed details relating to a gang and other relationships with the owner and the defendant. This was hotly disputed by the defendant and was not taken any further. That ended the questioning regarding evidence.
[16] After considering all of the evidence, exhibits and submissions, the Justices of the Peace concluded the issue of the identity of the rider of the motorcycle was proven beyond reasonable doubt. The Justices of the Peace relied on the evidence of Senior Constable Edwards regarding:
(1) his observations of the motorcycle including its registration number; (2) the physical characteristics of the pillion passenger; and
(3) Mr Paice’s physical characteristics.
Principles governing this appeal
[17] Mr Paice has exercised his right to a general appeal pursuant to s 115 of the
Summary Proceedings Act 1957. Mr Paice’s appeal is therefore conducted as a
4 New Zealand Police v Paice DC Blenheim CRI-2013-006-000531, 27 November 2013 at [12]
and [15].
rehearing.5 My duty is to review all of the evidence and reach my own view on whether or not Mr Paice is guilty of the driving offence.
[18] In Austin, Nichols & Co Inc v Stichting Lodestar the Supreme Court explained that those who have general rights of appeal are entitled to have:6
(1) the appellate court come to its own view on the merits of the case;
and
(2)their conviction overturned if the appellate court believes the lower court decision was wrong, even if that assessment involves an evaluation of fact and judgement.
[19] Therefore I proceed on the basis that I can only overturn Mr Paice’s conviction if I believe the Justices of the Peace’s decision was wrong, thus resulting in a miscarriage of justice.
Reasons why the Justices of the Peace did not err in allowing the QVR
document into evidence
[20] I have carefully read the transcript of evidence and the decision of the Justices of the Peace. In my view, the Justices of the Peace did not err in allowing the prosecution to admit the QVR document into evidence during re-examination to show the registered owner of the vehicle to be Ms Koppens.
[21] My reasons for reaching this conclusion are:
(1)The QVR was only introduced after Mr Paice questioned Senior Constable Edwards about his knowledge of the registration of the motorcycle. The police prosecutor told the Court he would find the document that had the registration information listed on it when
Senior Constable Edwards mentioned it.7
5 Summary Proceedings Act 1957, s 119(1).
6 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
7 Notes of Evidence at page 14, line 24.
(2)During Mr Paice’s cross-examination of Senior Constable Edwards, Mr Paice asked if Senior Constable Edwards knew the motorcycle was not registered in Mr Paice’s name. Senior Constable Edwards answered the question by saying he had performed a check on the registration.
(3)Because Mr Paice had cross-examined Senior Constable Edwards about the registration, the police prosecutor was entitled to re- examine8 Senior Constable Edwards on this point and use the
document to refresh his memory.9 The Justices of the Peace gave the
police prosecutor leave to introduce the document as evidence once it was shown to Mr Paice. Mr Paice objected to the evidence, which was noted by the Justices of the Peace. They considered that the vehicle registration was a fact of which Mr Paice would have been aware.
(4)The Justices of the Peace then gave Mr Paice an opportunity to further cross-examine Senior Constable Edwards about the QVR document.10 Mr Paice did not dispute that the motorcycle was registered to Shereen Koppens, but he did dispute that she was his de facto partner. He also objected to the document being relied upon.
[22] In my assessment the Justices of the Peace did err by allowing full text of the document, including the text at the base of the document, to be read out.11 That information was not relevant to the proceeding. However, I do not find that anything turned on that error as the key issue was the identity of the rider of the bike. The Justices of the Peace did not rely on the irrelevant parts of the QVR to find that the prosecution had proved beyond reasonable doubt that Mr Paice was the motorcyclist observed by Senior Constable Edwards at 12.37 pm on 9 March 2013. The admission of all of the QVR into evidence was not an error that resulted in a
miscarriage of justice.
8 Evidence Act 2002, s 97.
9 Section 90.
10 Evidence Act 2002, s 97(2).
11 R v G [2009] NZCA 69.
Conclusion
[23] Mr Paice’s appeal against conviction is dismissed.
[24] The conviction and sentence entered by the Justices of the Peace stands.
D B Collins J
Solicitors:
Crown Solicitor, Nelson for Respondent
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