R v C HC Whangarei Cri-2007-488-2

[2007] NZHC 1611

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2007-488-0002

BETWEEN    C

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         14 February 2007

Appearances: Appellant in person

Aaron Dooney for Respondent

Judgment:      14 February 2007

JUDGMENT OF HARRISON J

SOLICITORS

Marsden Wood Inskip & Smith (Whangarei) for Respondent

COPY TO: RA C 

C  V POLICE HC WHA CRI-2007-488-0002  14 February 2007

[1]      On 6 December 2006 Justices of the Peace sitting in the District Court at Kaikohe  found  proven  a  charge  brought  by  the  New Zealand  Police  against Mr   C   of driving a motor vehicle at a speed in excess of 100 kph.  The Justices imposed a fine equivalent to the infringement fee of $80 on the premise that Mr C   was driving at 113 kph at the relevant time.  Mr C   now appeals the decision.

District Court

[2]      The police called one witness, Constable Darren Critchley.  He had been a police officer for 14 years and a member of the Highway Patrol for the previous

18 months.   He produced certificates, first, of his approval to use a Stalker Radar Speed Detection Device and, second, of accuracy for the device: s 146(1) Land Transport Act 1998.

[3]      Constable Critchley’s evidence was that he was operating the radar device on State Highway 1 near Lake Omapere on 4 June 2006.  Previously he had carried out the relevant operational checks.  He said he operated the device in accordance with the code of operations.  The highway was subject to a speed restriction of 100 kph. While  on  duty there  he  recorded  the  speed  of  an  oncoming  vehicle  driven  by Mr C   at 113 kph.  Mr C  ’s motor vehicle was the only vehicle in his line of sight at that time.

[4]      The officer pulled Mr C  ’s vehicle over to the side of the road.   He showed him the readout on the radar screen.  He described Mr C  ’s reaction as belligerent, including an assertion that the device was wrong or inaccurate.    In explanation Mr C   said that he had slowed the speed of his vehicle because he was aware that the radar device was operating and was watching the speedometer.

[5]      Mr C   represented himself at the hearing as he has this morning on appeal.  He subjected the officer to extensive cross-examination.  I regret to observe that most of it was irrelevant and at times bordered on belittling and argumentative.

Mr C   raised, as he was entitled, a direct challenge to the officer’s reliability and credibility.   The essence of his attack was that the officer’s evidence was untruthful.  However, the only material point to emerge from cross-examination was a degree of consensus elicited by Mr C   that the officer tracked his vehicle for a distance of between 400 metres and one kilometre.   The cross-examination also served to reinforce the officer’s account; at one stage he described himself as ‘100% sure’ that Mr C  ’s vehicle was locked in his beam.

[6]      Mr C   gave evidence in his defence.  In essence it was that his vehicle was equipped with a Uniden 2000 radar warning device.  He said that it alerted him to the presence of the Hawk radar.   In response he said that he decreased speed accordingly.  He was adamant that he was driving at around 102 kph at the relevant time.

[7]      Mr C   called one of his three passengers to give evidence in defence.  In cross-examination the witness accepted that he could not dispute Constable Critchley’s evidence that he locked on to the speed of Mr C  ’s vehicle possibly prior to the radar warning detector taking effect.

[8]      The Justices retired at the end of the hearing.  They considered the evidence and, as they are entitled, sought advice from a District Court Judge.  In giving a full oral decision, the Justices referred to the evidential conflict between Constable Critchley and Mr C   but focussed on the relative accuracy of the Hawk radar device and Mr C  ’s radar detector.  In summary they found:

[3]       So the disputed part of the case really was where the radar unit was at the time of locking on.  We’re told that it is capable of locking on to a vehicle within two kilometres.  The act of locking on can be done within any place within those two kilometres.  When a reading is required it is locked into place so that this can be shown, should it be necessary, to anybody infringing.

[4]       We were faced really with a decision to decide whether we could take the evidence of the Hawk Radar or the evidence of the Uniden Radar Detector. The Hawk Radar carried with it all the certification as to accuracy. The radar detector, while it had some evidence of comparison with the car speedometer, there is nothing really we could take from that which indicates the accuracy of either the speedo or the radar detector.

[9]      On appeal Mr C   has mounted an extensive challenge to the Justices’ finding.  He has identified 20 points on appeal.  However, they come back to two essential themes.  One relates to the relationship between the Hawk device and his radar detector; the other, which he has emphasised orally, is his assertion that Constable Critchley was guilty of ‘a pre-fabrication of lies’.

[10]     On the latter point I observe that the Justices had the inestimable benefit of seeing and hearing the witnesses.   Its advantages can never be replicated in this Court on appeal.  For that reason the right of a rehearing is restricted to the notes of evidence.  The witnesses are not called again.

[11]     It is implicit in the Justices’ decision that they accepted the officer’s evidence that the radar device locked Mr C  ’s vehicle in its beam and recorded a speed of 113 kph.  With respect, that is hardly surprising.  Constable Critchley’s account was reinforced during cross-examination.  And Mr C   assumed a heavy burden when advancing a defence or appeal based upon an allegation of fabrication of prosecution evidence. As a result the Justices focussed principally on the other issue, namely the reliability or accuracy of the Hawk radar.

[12]     Driving at a speed exceeding 100 kph is an offence of strict liability.  S146(1) Land Transport Act 1998 expresses a rebuttable presumption that a certificate of accuracy produced according to that provision is sufficient proof that the device was tested and accurate on the date of the alleged offence: Bucknell v Mt Albert City Council (1985) 1 CRNZ 591 (CA).  Accordingly, on a prosecution for this offence the police are only required to prove the accuracy of the radar unit, certification for use of the police officer, and a readout or other evidence of the speed produced by the device: O’Brien v Police HC Wellington CRI-2005-483-12 6 October 2005.

[13]     The onus shifted to Mr C   to establish that the device was inaccurate. The only way he could effectively discharge this burden was to arrange for an independent assessment of the device by a technical expert who was able to give evidence  of  its  inaccuracy.    He  did  not  take  that  step  here.    Instead  he  relied

principally upon his account of the effect of the radar warning device in his vehicle and his observations of the speed at which his vehicle was travelling.  With respect, such evidence would never be sufficient to rebut the statutory presumption.   The evidence produced by this device provided a proper foundation for the Justices’ decision.

[14]     Thus I dismiss Mr C  ’s appeal. However, I record my appreciation for the courtesy and care with which he has advanced his argument today.   In the

circumstances there will be no order for costs.

Rhys Harrison J