Price v Police HC Invercargill CRI-2010-425-000039

[2011] NZHC 402

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2010-425-000039

ALISTAIR WILLIAM PRICE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4-5 April 2011

Counsel:         Appellant in person

E J Riddell for Respondent

Judgment:      5 April 2011

JUDGMENT OF LANG J (on appeal against conviction)

Solicitors:

Crown Solicitor, DX YA90011, Invercargill.

Copy to:

A W Price, Arthurton, R D 1, Gore.

PRICE V NZ POLICE HC INV CRI-2010-425-000039 5 April 2011

[1]      After a defended hearing in the District Court at Gore the Justices of the Peace  convicted  Mr  Price  on  a  charge  of  driving  a  motor  vehicle  at  a  speed exceeding the applicable speed limit.  They fined him $80 and ordered him to pay Court costs of $130.  Mr Price appeals to this Court against conviction.

The evidence

[2]      The only witness called for the prosecution was Constable Jones of the Gore Police.  He read his evidence-in-chief from a pre-prepared brief of evidence and was then cross-examined at length by Mr Price.

[3]      The Constable said that at approximately 9.15am on 30 January 2010 he was on patrol in a marked Police vehicle travelling in a northerly direction along the main street of Mataura.  He noticed a cream coloured vehicle coming towards him at speed.   When he was approximately 60 to 70 metres away from that vehicle, he activated his radar.   This indicated that the oncoming vehicle was travelling at 65 kilometres per hour.  He then activated his red and blue flashing lights, and at that point noticed the speed of the oncoming car visibly decrease.  The Constable did a u- turn and stopped the other vehicle.  He then spoke to the driver of the vehicle, who turned out to be Mr Price.

[4]      Mr Price and the Constable then had a discussion in which Mr Price made it clear that he did not accept that his vehicle had been travelling in excess of the speed limit of 50 kilometres per hour.  After Mr Price had looked at the readout on the radar, the Constable completed a vehicle check with his communications centre and confirmed Mr Price’s address.   The two men then parted company, the Constable advising Mr Price that he might, or would, be receiving a traffic offence notice.

[5]      Mr Price gave evidence in his own defence.  He said that at all material times he had been travelling at 30 miles per hour, which is roughly equivalent to 50 kilometres per hour.  He was sure of this because he and his wife were aware that police officers were actively patrolling this area of Mataura in an effort to catch speeding motorists.   He also called his wife to give evidence.   She corroborated Mr Price’s  version of the conversation that occurred  at the vehicle between her

husband and the Constable.  She was not able to hear the conversation that occurred in the vicinity of the Constable’s vehicle when Mr Price went to check the readout on the radar.  Mrs Price also confirmed that she had observed the speedometer of her husband’s motor vehicle showing that the vehicle was travelling at 30 miles per hour as it travelled through Mataura.

[6]      This  brief  summary  provides  only  the  essential  salient  features  of  the evidence.   Mr Price cross-examined the Constable extensively regarding a wide range of matters.  These included his proficiency at operating the radar device, the testing that he had carried out on the device earlier on the morning of 30 January

2010, the manner and circumstances in which the officer had activated the radar device and the contents of the discussions that he had held with the Constable, both at his vehicle and at the officer’s vehicle.

[7]      Mr Price also cross-examined the officer regarding the relative positions of the two vehicles during the course of the incident that gave rise to the charge.  He put questions to the officer designed to demonstrate that, given their relative positions at the  time  that  the  officer  activated  his  radar,  it  was  physically  impossible  for Mr Price’s vehicle to have been travelling at 65 kilometres per hour.

[8]      In addition, Mr Price cross-examined the officer about another vehicle that had been in the vicinity at the time of the incident. These questions were designed to suggest that the Constable may have locked his radar beam onto the other vehicle rather than onto Mr Price’s vehicle.   Overall, Mr Price sought to undermine the credibility of the Constable in order to provide a platform for a submission that the readout on the radar device was unreliable, or that it may have related to the other vehicle rather than to Mr Price’s vehicle.

[9]      By contrast, the prosecutor cross-examined Mr Price on a narrow range of topics.  To the forefront of these was the apparent absence of any motive on the part of Constable Jones to lie when giving evidence.

Grounds of appeal

[10]     Mr Price advanced no fewer than 27 individual points on appeal.  Many of these overlap and are better dealt with on a global basis.  In broad terms, however, Mr Price’s submissions were directed towards two fundamental propositions.  First, he did not receive a fair hearing because of the manner in which the Justices conducted the hearing and the manner in which the prosecution had dealt with him prior to the hearing.  Second, there was insufficient evidence to enable the Justices to convict him.

Was Mr Price denied a fair hearing?

[11]     Mr  Price  contends  that  the  prosecution  failed  to  meet  its  disclosure obligations in several respects.  First, it failed to disclose the existence of a jobsheet that Constable Jones had completed on 19 April 2010 in relation to the incident that gave rise to the charge.

[12]     It is clear that this document ought to have been disclosed.  I do not consider, however, that the failure of the prosecution to disclose it had any material effect.  For the most part the jobsheet contains information that was already in the arena. Although Mr Price may have been able to cross-examine the Constable on some aspects of the jobsheet, it generally confirmed the evidence that the Constable gave.

[13]     Second, Mr Price complains that he was forced to have recourse to the Office of the Ombudsman in order to obtain a copy of the operator’s manual relating to the radar device that Constable Jones used on 30 January 2010.   He submits that the Police ought to have provided him with a copy of this document when they made general disclosure.   He says that he was put to considerable trouble to obtain the document, and that the Police were wrong to withhold it from him.

[14]     I do not accept this submission.  The operator’s manual would not normally have formed part of disclosure, because the prosecution was not intending to refer to, or rely upon, the operator’s manual when presenting its case against Mr Price.  For that reason it fell outside the general disclosure requirements.   I therefore do not

criticise the Police for failing to provide Mr Price with the document as part of general disclosure.   He was, in any event, eventually able to obtain it using the provisions of the Official Information Act 1985.

[15]     Next, Mr Price points out that the charge was initially due to be heard on

10 June 2010.  On that date the prosecution objected to the composition of the Court because one of the Justices was personally known to Mr Price.  For that reason, the prosecutor persuaded the Justices that the charge should appropriately be heard by another panel.  Mr Price contends that this breached his right under s 25(b) of the New Zealand Bill of Rights Act 1990 to be tried without undue delay.

[16]     I disagree.  The prosecution was entitled to ensure that the panel was heard by Justices who had no personal connection with Mr Price.

[17]     Mr Price also submits that the two Justices who heard the charge should not have done so.  He based this submission on the fact that one of the Justices had been a member of the Police for approximately 25 years.  The other Justice had nominated the first Justice for a position as a councillor  on the Invercargill City Council. Mr Price submitted that these factors  compromised the independence,  if not the integrity, of both Justices.

[18]     I disagree.  In common with all other members of the New Zealand judiciary, Justices of the Peace take an oath before they assume office.  They are then bound to conduct their duties as members of the judiciary in accordance with that oath.  The fact that a Justice of the Peace may have had an earlier career as a police officer does not disqualify him or her from accepting judicial appointment, or from hearing cases involving the Police.  The fact that the second Justice nominated the first Justice for a position with a local authority is similarly of no moment.  I do not consider that any right thinking member of the public viewing the matter objectively would consider  that  these  factors  compromise  the  independence  and  integrity  of  the Justices,  or  the  appropriateness  of  their  appointment  to  hear  the  charge  against Mr Price.

[19]     Next, Mr Price submits that the Justices conducted the hearing in a manner that effectively prevented him from presenting his  defence.   One aspect of this ground  of  appeal  was  that  the  Justices  regularly  asked  him  to  move  on  and questioned the relevance of questions that he was asking.

[20]     Time is a precious commodity in any Court of first instance.  For that reason presiding Justices and Judges have an obligation to ensure that the parties are kept on track, and that they ask questions that are relevant.  Viewing the way in which the Justices conducted the case as a whole, I do not consider that they compromised Mr Price’s right to a fair trial in this respect.

[21]     There is, however, one issue that has given me cause for concern.   This relates to the manner in which the Justices dealt with Mr Price towards the end of his evidence-in-chief.   After giving his evidence-in-chief, Mr Price produced two photographs without apparent objection or comment by either the Justices or the prosecutor.   He then sought to produce a certificate of accuracy relating to the speedometer of the vehicle he was driving on 30 January 2010.  This was clearly a relevant document and, subject to being admissible under the Evidence Act 2006, it may well have assumed some importance in the present case.  The Justices declined, however, to allow him to produce the document.

[22]     Having listened to the audio tape of the hearing, it appears that the Justices based their decision on the fact that Mr Price ought to have produced the certificate during his evidence-in-chief.  That is an unusual basis for the Justices’ conclusion, because Mr Price had not concluded his evidence-in-chief at the time at which he sought to introduce the certificate.

[23]     I consider that the Justices erred in declining to allow Mr Price to introduce this document on the basis that they gave.  An error of this type may not generally matter, but it became important in the context of the present case.   It became important because the Justices were subsequently to place weight on the fact that Mr Price  had  not  adduced  any  evidence  regarding  the  accuracy  of  his  own speedometer. This is apparent from the following passage in the Justice’s decision:

[18]   The defendant, for his part, is reliant on the accuracy of his own speedometer which is recorded in miles per hour and for which no certificate of accuracy has been produced.  The exchange between the parties is, in our view, immaterial as to who initiated what, but the outcome was that the ground speed of the police patrol car and the locked on speed of the defendant’s vehicle were made available to the defendant.  The issue of any other traffic coming within the beam is, in our view, negated by the fact that this defendant’s speed had already been locked on prior to any other traffic coming into the view of the constable.  The defendant was totally reliant on the unsupported accuracy of his own speedometer which was recording in miles per hour.

[19]  For the reasons stated, we accept the evidence of the prosecution and find the charge proven.

(Emphasis added)

[24]     There remains the possibility that the radar locked upon a vehicle travelling approximately 100 metres behind Mr Price’s vehicle.   The  Constable  noted the existence of this vehicle in notes that he made at the time.  The portion of the form on which the Constable made that note was under the following heading: “Single vehicle in beam (if not single vehicle then outline tracking history)”.   This entry suggests that the Constable may at that time have considered that the other vehicle was in the beam of the radar at the time that he locked it on Mr Price’s vehicle.

[25]     The Justices discounted this possibility because they accepted that the officer had locked his radar on Mr Price’s vehicle before the other vehicle was caught by the beam.  Whether the Justices would have reached that conclusion if they had had the benefit of the certificate of accuracy in relation to Mr Price’s speedometer is a matter of conjecture. They should, however, have had that evidence before them.

[26]     The Justices placed very considerable weight, however, on the fact that the evidence of Mr Price and his wife regarding the reading on their speedometer was unsupported by any evidence regarding the accuracy of the speedometer.  Given that the Justices had wrongly failed to allow Mr Price to produce evidence as to his speedometer’s accuracy, I consider that a miscarriage of justice has occurred.

Result

[27]     Ordinarily in these circumstances I would remit the charge to be reheard in the District  Court.   This  is,  however,  a minor  matter.    It  has  already occupied approximately three hours of the District Court’s time and approximately four hours of this Court’s time.  I therefore consider that it would be inappropriate to remit the matter for rehearing.  Instead I allow the appeal and quash Mr Price’s conviction.

……………………………..

Lang  J