S v Police HC Wellington CRI-2007-485-142

[2008] NZHC 257

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-485-142

S

v

NEW ZEALAND POLICE

Hearing:         4 March 2008

Counsel:         W M Johnson for appellant

C A Patterson for respondent

Judgment:      5 March 2008

JUDGMENT OF DOBSON J

Introduction

[1]      The appellant was convicted at a defended hearing of driving a motor vehicle in excess of 100 kilometres per hour in breach of s 40 of the Land Transport Act

1998 and reg 4 of the Land Transport (Offences and Penalties) Regulations 1999. He was sentenced to a fine of $170.00.  The appellant originally appealed both the

conviction and sentence, but no argument was advanced in respect of the sentence.

S V NEW ZEALAND POLICE HC WN CRI-2007-485-142 5 March 2008

Background

[2]      On 28 April 2007, the appellant was driving on the motorway between Tawa and Porirua.   Constable Desmond O’Sullivan, who had recorded the appellant’s speed at 125 kilometres per hour, stopped him.  The appellant offered no explanation for his speed and produced his licence and address.  Constable O’Sullivan noted that the photo on the licence matched the driver exactly.  The appellant was duly issued with an infringement notice.

District Court decision

[3]      The appellant defended the charge on two grounds.   First, counsel for the appellant identified discrepancies between the recorded and actual date of birth and address of the appellant and, secondly, the accuracy of the speed-measuring device was challenged.  It was on these two grounds that counsel submitted the prosecution had not met their burden of proof in establishing the elements of the offence.

[4]      In a short judgment, the District Court held that the discrepancy in the date of birth was minor and cured by s 204 of the Summary Proceedings Act 1957.   The issue of the address was inconsequential, as the appellant had obviously received the summons and infringement notices despite the different addresses.  The accuracy of the speed measuring device was proven by certificates of authenticity, which were admissible despite counsel’s objections.  The defences consequently failed and the appellant was convicted.

This Appeal

[5]      The appellant appeals the District Court’s decision upon three grounds:

•         The driver was not adequately identified;

•The “Code of Conduct” relevant to the use of the speed measuring device was not complied with when it was used;

•         The certificates of authenticity were inadmissible.

[6]      After  considering  the  submissions  filed  on  behalf  of  the  respondent  in response to his own, Mr Johnson responsibly conceded that the latter two points were not viable arguments, and they were abandoned.

[7]      The remaining point relies on the cumulative effect of discrepancies in the identification of the driver.  First, the date of birth on the notice issued to him when he was stopped was 5 August 1965, whereas the date on the notice of hearing was

5 August 1966.  Secondly, the notice of hearing was addressed to a post office box number, whereas the appellant gave the officer a street address.  Lastly, Constable O’Sullivan could not  recall  what  the  appellant  was  wearing when  stopped,  and agreed with counsel’s contention that the photo on the licence was “very small”.  It was submitted that these three factors combined indicate that the identity of the driver was not sufficiently proven.

[8]      The primary evidence of identity relied upon in the prosecution was that of the Police Sergeant who stopped the appellant’s vehicle, interviewed him, and issued him with a traffic notice.  That evidence included:

I asked the driver for his driver’s licence which he produced.  The driver’s licence was in the name of Mark S  .  He gave me his address as

7 Kohutuhutu Road in Raumati.  I viewed the photo on the driver’s licence

and it was exactly the same as the driver of the motor car.

[9]      Although he accepted that photographs on licences are very small, the officer did not accept that driver’s licence photographs are very difficult to comprehend.

[10]     It appears that the appellant elected not to attend the hearing, so that no opportunity for an identification in Court would arise.

[11]    Mr Johnson urged on me that photograph identifications are notoriously unreliable.    He  submitted  that  the  witness’  very  positive  evidence  of  an  exact likeness should be cynically tested and, when measured against the discrepancies relied upon, that identification should ultimately be rejected.

[12]     Mr Johnson sought to liken the present circumstances to the case of Williams v Police HC WN AP208/01 4 October 2001 Durie J, in which an appeal did succeed on the ground that the Police had not adequately established the identity of the driver.  The reasoning in that case included:

[13]      In brief I do not think it enough for a constable to say, as in this case, that the driver said he was so and so.   He had also to be asked – did the driver  have  a  licence  and  if  so,  did  the  driver  appear  to  match  the photographic image?  Did the driver give a date of birth?

[13]     That case is obviously of limited assistance on the present appeal, and indeed the subsequent steps to confirm an identification suggested in the passage quoted were in essence undertaken here.

[14]     The other factor said to heighten the doubt over a positive identification of the driver included the discrepancy by one year of the date of birth stipulated in the various documents.  Without more (the Police Officer having no awareness of the discrepancy, or any positive suggestion as to how it had arisen), the likelihood of transposing a “5” for a “6” in the course of the paperwork is an obvious one that does not cast any material doubt on the other evidence going to the identity of the driver.

[15]     The second discrepancy, of the notice of hearing being posted to a post office box as the address of the appellant, is again an administrative step, divorced from the conduct by the officer who stopped the driver and charged him with speeding.

[16]     Without more, it verges on the fanciful to suggest that the discrepancies in such details raise  any realistic  doubt  as  to  the  identity of  the  driver,  otherwise positively established by the officer’s evidence.

[17]     In terms of any other consequences of the discrepancies in the paperwork as tainting the basis for a conviction, the District Court treated them as minor errors, not constituting a fatal flaw and able to be saved by s 204 of the Summary Proceedings Act.   That aspect of the decision was not challenged and, with respect, is entirely appropriate.

[18]     Accordingly, the appeal is dismissed.

Dobson J

Solicitors:

Bill Johnson, Wellington for appellant

Luke Cunningham & Clere, Wellington for respondent