W v Police HC Nelson Cri-2005-442-3

[2006] NZHC 118

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2005-442-03

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 February 2006

Appearances: Appellant in person

N Dore for Respondent

Judgment:      22 February 2006

JUDGMENT OF GODDARD J

[1]      Mr  W    seeks  leave  to  appeal  from  a  decision  of  Gendall  J  in  which Gendall J dismissed his appeal from a decision of Justices of the Peace who found that he had driven a motor vehicle on a road at a speed exceeding 100km per hour. As explained to Mr W   by Ronald Young J on 2 February 2006, his current application is for leave to appeal to the Court of Appeal on the limited grounds provided in s 144 Summary of Proceedings Act 1957.  Those limited grounds are set

out in the following relevant provisions of s 144 as follows:

W V POLICE HC NEL CRI-2005-442-03 22 February 2006

144    Appeal to Court of Appeal

(1)Either party may, with the leave of the High Court, … appeal against any determination of the High Court on a question of law arising in any general appeal: …

(2)… the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

(3)Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[2]      In his notice of appeal Mr W   stated that he was seeking leave to appeal against the whole of the decision of Gendall J:  the specific grounds being that the evidence of Sergeant Richards given before the Justices of the Peace was “contradicting, wrong and fraudulent”.   A number of instances of this alleged “contradicting, wrong and fraudulent” evidence were detailed in the notice with page and paragraph references.

[3]      At the hearing before me Mr W   advanced what he contended were six points of law  arising  from  Sergeant  Richards’  evidence.    These  points  were  as follows:

1.Fabricating evidence: s 113 Crimes Act 1961.  Pursuant to this point Mr W   submitted that he had basically been accused of speeding when he was not speeding and there was no evidence to support that accusation.

2.Perjury: s 108 Crimes Act 1961.   Pursuant to this point Mr W   pointed in particular to the following passage in the evidence of Sergeant Richards, in which the Sergeant said:

So when I first started approaching Mr W   there was no signal going out whatsoever, so the radar detector would have had nothing to pick up because there was no signal, and that is why you didn’t get a signal.

This answer by Sergeant Richardson was given in response to questioning from Mr W   about why a unit and radar detector that Mr W   had in his car “never went off” when Sergeant Richards drove towards Mr W   but as soon as Sergeant Richards turned his car around and followed Mr W   the detector “went absolutely mental”.  The purpose of this challenge Mr W   said was to prove that Sergeant Richards “never had your thing on when you were approaching me at all and you assumed the speed and then tried to get evidence afterwards.  It was too late.”

3.Forgery: s 256 Crimes Act 1961.   Pursuant to this point Mr W   submitted  that  the  roadside  infringement  notice  handwritten  and issued by Sergeant Richards at the time contained errors as to Mr W  ’s birth date and the make of his vehicle.   These errors were corrected in the reminder notice subsequently sent to Mr W  .  The caption summary prepared for the Court also incorrectly stated the make of his vehicle.

4.Using forged documents: s 257 Crimes Act 1961.  This point relates to the same documents.

5.Altering, concealing, destroying or reproducing documents with intent to deceive: s 258 Crimes Act 1961.   This point relates to the same documents and their treatment.

6.        Using altered or reproduced documents with intent to deceive: s 259

Crimes Act 1961.  This point relates to the same documents.

Discussion

[4]      Each of the points raised by Mr W   as a point of  law  is  in  effect  a challenge to findings of fact made by the Justices of  the  Peace  and  upheld  by Gendall J on appeal.  Essentially these findings of fact fall into two categories: those relating to proof  that the appellant was exceeding the speed limit of 100km per hour at the time; and those relating to the inaccuracies in the roadside infringement notice and caption summary.   Both challenges were carefully considered by Gendall J in light of the evidence given at the hearing before the Justices of the Peace and in the context of the findings of the Justices of the Peace.

[5]      In relation to the challenge to the radar detector evidence, Gendall J permitted Mr W   to introduce copies of documents (not in evidence before the Justices of the Peace) apparently from a “Stalker DSR Manual” and one describing features of a particular radar detector which Mr W   contended proved that Sergeant Richards could not have activated his radar device.  Gendall J found however that this further evidence  did  not  assist  Mr  W    because  it  provided  equal  corroboration  for Sergeant Richards’ evidence and thus did not constitute cogent new evidence to support the proposition that Sergeant Richards gave false evidence when he stated that he had, through his radar device, obtained a speed reading of 117km per hour. In reaching this conclusion, Gendall J referred to the whole of the answer given by Sergeant Richards in response to Mr W  ’s challenge on this issue, rather than simply that part of his answer selected by Mr W   in support of his second point of law above.  When the whole answer is set out it clearly provides a complete answer to Mr W  ’s challenge, as Gendall J found.  Sergeant Richards’ whole answer was:

The only problem is that the radar units had what is known as a hold mode so that when the device is on it does not emit any radar signal.  It is only when I release it that the signal is sent out, it detects the vehicle’s speed, it then gets locked on and at that point in time the radar detector would have gone crazy.   So when I first started approaching Mr W   there was no signal going out whatsoever, so the radar detector would have had nothing to pick up because there was no signal, and that is why you didn’t get a signal.

[6]      Gendall J’s confirmation of the Justices’ acceptance of Sergeant Richards’ evidence that Mr W  ’s speed was in excess of 100km per hour was further reinforced by the “significant” factor that Sergeant Richards had invited Mr W   to go to the patrol car to check for himself the speed reading locked into the radar device which Mr W   declined to do.   This factor carried with it, as Gendall J noted, “the clear inference that such a reading was obtained and observable by the police officer”.

[7]      The findings by the Justices of the Peace about the veracity and reliability of Sergeant Richards’ evidence were findings of both fact and credibility and as such did  not  involve  any  issues  of  law.     They  were  confirmed  by  Gendall  J  as unassailable, Gendall J recording:

Appellate courts are not able to interfere with such findings of fact unless there arises cogent new evidence which points to a miscarriage of justice having occurred.   Nothing of the kind occurred in this case.   There is no possible basis for this Court to interfere with the Justices’ decision on the facts.

[8]      I find, as I must, that no question of law arises.   The simple citation of sections from the Crimes Act cannot transform a challenge to findings of fact and credibility into a question of law.  Leave to appeal on this aspect of Mr W  ’s case is declined.

[9]      Turning then to Mr W  ’s points on appeal alleging forgery or alteration of the infringement notice and caption summary by the correction of inaccuracies in those documents in the reminder notice subsequently sent, this challenge was also the subject of findings by the Justices of the Peace, who were satisfied that neither the mistake as to Mr W  ’s date of birth or as to the make of his car had led to any miscarriage of justice in his case, “given that the registration of the vehicle and therefore its identity has not been disputed”.   Their  finding in  this  regard  was confirmed by Gendall J, who found Mr W  ’s challenge to be without merit:

[8]       The  appellant’s  claims  that  the  prosecution  was  flawed  through mistakes or inaccuracies in the infringement notice as to his birth date and make of vehicle are without merit. As was said by the Court of Appeal in Hall v Ministry of Transport [1991] 2 NZLR 53 (CA) defects in the form of an infringement notice do not of themselves invalidate the proceedings such defects having to be so grave that the form is to be ignored as a nullity so

that a miscarriage of justice may have arisen.  The Justices’ correctly viewed the identity of the appellant, the time of the offending, the date and place of events as being not in dispute, and the dispute simply related to alleged speed. They noted the appellant’s reliance on what they said were “a couple of mistakes on the offence notice” but came to the conclusion that they were immaterial and unrelated in reality to the central issue, namely the speed of the vehicle. The continued claims by the appellant in this regard as I have said are without merit. The date of birth of the appellant or make of vehicle being driven was not an essential ingredient for the prosecution to establish. In any event they are correctly described in the documents that brought the matter before the Court, namely the Reminder Notice and the subsequent Notice of Hearing.

[10]     Mr W   cannot now challenge that he was the driver of the white utility vehicle that was stopped by Sergeant Richards on SH60 on 29 October just after

6.04pm.  Nor has he ever sought to do so as no such challenge was mounted before the Justices of the Peace nor argued before Gendall J.   The errors in the roadside infringement notice and caption summary were not of a fundamental nature, as the Justices correctly found and Gendall J confirmed.  The correction of those errors in the reminder notice subsequently issued are neither a forgery nor the alteration of a document with intent to deceive.  Rather the correction was one that the enforcement agency was not only entitled to make but bound to make once the errors became apparent.  Those errors and their correction have not led to a miscarriage of justice, in the sense that the wrong person has been found to have committed a speeding offence attributed to Mr W  .

[11]     No point of law is raised in relation to this issue either and therefore leave to appeal to the Court of appeal must be declined.

Solicitors:

Pitt & Moore, Nelson, for Respondent

Delivered at 4.00pm on Wednesday 22 February 2006.