W v Police HC Auckland CIV 2005-404-267

[2005] NZHC 82

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2005-404-267

BETWEEN  W Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         3 October 2005

Appearances: AGFC Bouchier for Appellant

H P Retzlaff for Respondent

Judgment:      3 October 2005

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 2213, Auckland
Counsel:

AGFC Bouchier, 85 Ranfurly Road, Epsom, Auckland

W V NEW ZEALAND POLICE HC AK CIV 2005-404-267  3 October 2005

[1]      Mr W   appeals against a decision made by Justices of the Peace sitting in the District Court at Pukekohe on 20 May 2005.  Mr W   had been charged with travelling in excess of 80 km/h whilst towing a vehicle.   The incident occurred at about 3pm on Boxing Day 2004.

[2]      Mr Bouchier, for the appellant, raised a number of questions concerning the way in which the hearing was conducted.  He referred to s25 of the New Zealand Bill of Rights Act 1990; in particular, to the right to be presumed innocent until proven guilty of an offence.   He referred also to other requirements in relation to conducting a fair hearing.

[3]      It is unnecessary for me to embark upon consideration of the wider issues raised by Mr Bouchier in this judgment.   Despite forceful submissions from Mr Retzlaff, in opposition to the appeal, I am satisfied that the appeal can be resolved on a narrow point.

[4]      In giving their decision, the Justices referred to the fact that they had heard evidence from one Police witness and from the defendant.    The Justices acknowledged that the point in issue was whether it was Mr W  ’ vehicle that was doing the stated speed.  Mr W  ’ defence was that it was not his vehicle that had been identified by the Police radar equipment.

[5]      There was a dispute on whether the vehicle was the sole vehicle  in  the constable’s sight at the relevant time or whether, as Mr W   contended in evidence, the volume of traffic was such that a mistake may well have been made.

[6]      There is no finding in the decision of the Justices as to credibility.  Nowhere is it stated that the Justices either disbelieved Mr W   or  found  his  evidence unreliable.   The only suggestion of a credibility finding is in relation to the constable’s evidence being “under oath” and a comment that while Mr W   was right to put forward his evidence, they felt there was one statement “that we feel is actually not your statement”.  There then follows a reference to a discussion between

Mr W   and his father which both counsel and I find difficult to reconcile with the transcript of the hearing.

[7]      Following those comments and an observation that certificates had been produced to satisfy the accuracy of the machine used “and the operator”, the Justices continued:

Your evidence questions the veracity of the constable’s statements.  Those statements were made under oath and taking into account all we have heard, we do not find sufficient firm evidence to dismiss the charge.  Therefore, we consider the charge is proved. (my emphasis)

[8]      In  those  circumstances,  I  consider  there  is  a  real  risk  that  the  Justices misdirected themselves as to the onus of proof. The decision reached is unsafe.

[9]      For  those  reasons,  the  appeal  is  allowed  and  the  conviction  and  penalty imposed set aside.  I am not prepared to remit the charge to the District Court for reconsideration.  All issues are resolved by this decision.

P R Heath J