The Queen v Haskett - [2006] NZCA 46

IN THE COURT OF APPEAL OF NEW ZEALAND
CA261/05
THE QUEEN
v
ALISTAIR JAMES HASKETT
Hearing:7 March 2006

Court:Chambers, John Hansen and Baragwanath JJ
Counsel:Appellant appears in person

F E Guy Kidd for Crown

Judgment:30 March 2006

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION IS DISMISSED.
REASONS
(Given by John Hansen J)
[1]        Pursuant to special leave granted by this Court on 29 September 2005 the appellant appeals his conviction for driving his motor vehicle at a speed exceeding 100 kilometres per hour.
Background
[2]        On 25 April 2003 a speed camera operator, Mr Good, was on duty on the Northwestern motorway in Auckland, approximately 200 metres from the Western Springs off ramp. He set up a speed camera that automatically records and photographs the vehicles and their speed. The appellant’s vehicle was recorded as travelling at 111 kilometres per hour.
[3]        On 17 July 2004 the appellant appeared before the Justices of the Peace. They heard evidence from Mr Good. Mr Good produced as an exhibit the speed camera film. The photograph showed Mr Haskett’s vehicle, the date and time, a sign indicating that the vehicle was coming towards the camera, the speed of the vehicle, the site number where the camera was set up, and the film and frame number of the particular photograph.
[4]        The appellant did not call evidence but made extensive submissions. Those submissions focused on s 146 of the Land Transport Act 1998. Essentially, Mr Haskett argued that the equipment used was not approved vehicle surveillance equipment, as approved by the Minister in the Transport (Approved Vehicle Surveillance Equipment) Notice 1994. He also argued that the prosecution had failed to establish the particular vehicle surveillance equipment was accurate, and that no statutory or common law presumption of accuracy applied. In the alternative he argued any statutory presumption was rebutted. He submitted the Justices should not have admitted hearsay evidence from the prosecution, and that the prosecution had failed to establish that the particular vehicle surveillance equipment used was approved.
[5]        The Justices dismissed all these grounds and convicted the appellant. He was fined $180 and ordered to pay costs of $30.
[6]        He appealed and Ellen France J dismissed his appeal. The appellant then sought leave to appeal to this Court, which was declined by Keane J on 7 July 2005.
[7]        Because of the view we have formed of this matter, it is unnecessary to traverse the reasoning of Ellen France J and Keane J. It is sufficient to say that based on the appellant’s, and the Crown’s, submissions their focus was understandably on s 146.
[8]        Before this Court, on the special leave application, Mr Haskett sought to advance six questions of law. He accepted that questions 4 and 5 were challenges to decisions made at trial to admit evidence and abandoned them. This Court concluded that the remaining questions raised issues of such general and public importance that they ought to be submitted to this Court.
[9]        The appellant’s brief…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Haskett

Details

AGLC: The Queen v Haskett [2006] NZCA 46
Case: [2006] NZCA 46
Decision Date: 30 March 2006

CaseChat Overview and Summary

The Queen brought an appeal against the conviction of Alistair James Haskett for driving his motor vehicle at a speed exceeding 100 kilometres per hour, which was recorded by a speed camera. The conviction was appealed and dismissed by Ellen France J, and the appellant sought leave to appeal to the Court of Appeal of New Zealand, which was declined by Keane J on 7 July 2005. However, special leave was granted by this Court on 29 September 2005.

The legal issues that the Court was required to decide were whether a certificate of accuracy must refer to the compatible computer, whether a super-added laser sight means the equipment used is not approved, whether s 146(6) of the Land Transport Act prevents challenges to certificates of accuracy, and what is the common law presumption of accuracy on mechanical instruments. The appellant argued that the equipment used was not approved vehicle surveillance equipment, as approved by the Minister in the Transport (Approved Vehicle Surveillance Equipment) Notice 1994, and that the prosecution had failed to establish the particular vehicle surveillance equipment was accurate, and that no statutory or common law presumption of accuracy applied. The Crown argued that it was irrelevant that the Transport (Approved Vehicle Surveillance Equipment) Notice 1994 did not specifically refer to the laser sight, and that the radar, in combination with the laser sight, had been tested by the Measurement Standards Laboratory of New Zealand and their report had been presented to the Minister of Police.

The Court's reasoning and outcome was that the straightforward answer lies in the provisions of s 145 of the Land Transport Act and its relationship with s 146. It is unfortunate that this case, from the beginning, took a wrong turn by the concentration on s 146. While s 145 was referred to towards the end of the Crown's written submissions, it was only when the matter was argued in front of the Court that its significance emerged. Section 145 deals with the evidentiary effects of exposures taken by AVSE, while Section 146 deals not only with AVSE but with other measuring devices, a number of which can be used by enforcement authorities to ascertain whether vehicles have exceeded the speed limit. The device which the Court is concerned with in this case creates a photographic exposure which records a motor vehicle on a road, the speed of the vehicle and its location, and the date and time when the image was taken. Such a device is commonly referred to as a “speed camera” and, if approved as an AVSE by the Minister, comes within s 145. The image is deemed to be evidence of speed in the absence of proof to the contrary. There being no proof to the contrary, it follows pursuant to s 145 that the production of the image was sufficient evidence to establish that the equipment used to produce the exposure was an AVSE. It further follows pursuant to s 145 that such production is sufficient evidence to identify the appellant’s vehicle and the speed it was travelling at the relevant date and time. The charge was therefore proved. The appeal is dismissed.

The final orders of the Court were that the appeal against conviction is dismissed.

Orders