Terry v Police

[2014] NZHC 3092

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-108 [2014] NZHC 3092

BETWEEN

ROBERT FRANK TERRY

Applicant

AND

NEW ZEALAND POLICE Respondent

Hearing:	4 December 2014
Appearances:	Applicant in Person C Newman for Respondent
Judgment:	5 December 2014

JUDGMENT OF MANDER J

[1]      Robert Terry seeks leave to appeal the dismissal by Judge MacAskill of his appeal from a decision of Justices of the Peace who found Mr Terry guilty of driving a vehicle on a road at a speed exceeding the applicable 50 kilometres per hour speed limit.

[2]      Leave must not be given for a second appeal unless the second appeal Court is satisfied that the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred, or may occur, unless the appeal is heard.1

[3]      The  evidence  before  the  Justices  was  that  radar  equipment  identified  a vehicle travelling at a speed of 80 kilometres per hour in an area subject to a 50 kilometre restricted speed limit.   The police officer operating the radar equipment stopped the vehicle and obtained the details of the driver and his driver’s licence. The driver was identified as Mr Terry, and an infringement notice was generated and

handed to him.

1      Criminal Procedure Act 2011, s 237.

TERRY v NEW ZEALAND POLICE [2014] NZHC 3092 [5 December 2014]

[4]      Mr Terry did not give evidence disputing the officer’s evidence and on the basis of the evidence adduced before them, the Justices found the charge proved.

[5]      On appeal, Mr Terry sought to argue that there was a police policy in force whereby drivers would not be prosecuted for offences committed within 250 metres of the 50 kilometre speed limit sign.  As it had not been proved that he was outside that range, he submitted he had been incorrectly convicted.

[6]      Judge MacAskill observed that police policy is not law and that no legal authority had been referred to him to establish a defence for offending within a certain distance of a speed sign.  There was no dispute that Mr Terry had exceeded the speed limit within the 50 kilometres per hour zone, and for that reason he was properly convicted.

[7]      Mr Terry made an additional submission before  Judge MacAskill, to the effect that the evidence before the Justices did not refer to the make or registration number of the vehicle that he was driving at the time, nor had the police officer given evidence of those details.

[8]      Section 40 of the Land Transport Act 1998 provides:

40       Contravention of ordinary rules

(1)       A person commits an offence if the person contravenes a provision of an ordinary rule and the contravention of that provision is for the time  being  prescribed  as  an  offence  by  regulations  made  under section 167.

(2)       If a person is convicted of an offence referred to in subsection (1), the  person  is  liable  to  the  applicable  penalty  set  out  in  the regulations.

[9]      Rule 5.1 of the Land Transport (Road User) Rules 2004 provides:

Drivers must not exceed speed limits:

(1)        A driver must not drive a vehicle at a speed exceeding the applicable speed limit (being a permanent, variable, holiday, urban, rural, temporary or other speed limit).

[10]     Judge MacAskill held that proof of such details as the registration number and the make and model of the vehicle being driven is not required to prove the charge.  The charge was one of driving a vehicle on a road at a speed exceeding 50 kilometres per hour.  The officer had given evidence of stopping a vehicle recorded at driving in excess of the speed limit and of identifying Mr Terry as the driver of that vehicle.  Unsurprisingly, Judge MacAskill found that the Justices were entitled to conclude that, in the absence of any challenge to the officer’s evidence, Mr Terry was driving the vehicle and that the vehicle itself was not required to be described in any particularity, nor were such details necessary for proof of the charge.

[11]     In seeking leave before me, Mr Terry has repeated the points raised before Judge MacAskill, namely that there was no proof provided of the vehicle make or model or the registration number of the vehicle.  He has also relied on his argument relating to the distance between the point where he was detected speeding and the speed sign delineating the limited speed zone, again making reference to a police policy effectively providing an amnesty for speeding within 250 metres of the sign within the limited speed zone.

[12]     Both these points were argued before Judge MacAskill in the District Court. Both  points  are  without  merit,  and  Judge  MacAskill’s  approach  to  those issues admits of no error in law or fact.  It is clear that the informant proved that Mr Terry was the driver of the vehicle which was recorded as speeding within the limited speed  zone.    Indeed,  this  is  not disputed by Mr Terry.    In  the absence of any requirement to describe the vehicle with any particularity and in the absence of any dispute that he was driving the vehicle at the time, the charge was properly found proved.

[13]     Mr Terry also in oral argument maintained that he had not received a fair hearing before Judge MacAskill on the basis that after his “opening address” the Judge  had  not  called  on  the  police  prosecutor  and  dismissed  his  appeal.    It  is however apparent from Judge MacAskill’s judgment that he considered each of Mr Terry’s submissions.   He did not need to hear from the police prosecutor and no procedural irregularity arises.

[14]     In oral submission, Mr Terry sought to rely on the requirements of proof as it related to a parking offence as being analogous to the speeding charge he faced.  The need to link a car illegally parked with the responsible owner of the vehicle liable for where the car is parked is however readily distinguishable when compared with the elements of the offence of a driver exceeding a speed limit.

[15]     Mr Terry has not satisfied me that the appeal involves any matter of general or public importance, nor that any miscarriage of justice has occurred, or may occur, unless the appeal is heard.  Mr Terry’s application for leave is therefore declined.

Solicitors:

Raymond Donnelly & Co, Christchurch