W v Police HC Wanganui CRI-2009-483-25

[2010] NZHC 118

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2009-483-25

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         12 February 2010

Counsel:         J H Waugh for appellant

J M Woodcock for respondent

Judgment:      17 February 2010

RESERVED JUDGMENT OF DOBSON J

[1]      Mr W   was convicted after a defended hearing before two Justices of the Peace  on  one  count  of  driving  a  vehicle  on  a  road  at  a  speed  exceeding  100 kilometres per hour, contrary to s 40 of the Land Transport Act 1998, r 4 of the Land Transport  (Offences  and  Penalties)  Regulations  1999  and  cl 5.1(1)  of  the  Land Transport (Road User) Rule 2004.  Mr W   was ordered to pay an infringement

fee of $170 and $30 costs.  Mr W  has appealed against his conviction.

W V NEW ZEALAND POLICE HC WANG CRI-2009-483-25  17 February 2010

[2]      At around 10pm on Wednesday, 9 July 2008, Mr W   was the driver of a vehicle travelling on State Highway 3 in Kaitoke.   The road had a speed limit of

100 kilometres per hour.  Mr W   was allegedly checked by Stalker DSR Radar travelling at 125 kilometres per hour at a range of 50 metres from the police vehicle and was subsequently stopped by the monitoring officer, Constable Bublitz.

[3]      Mr W   claimed, on the basis of a calibration check of his speedometer, that his vehicle’s speedometer recorded the vehicle as travelling at between four and eight kilometres faster than the vehicle’s actual road speed.   Accordingly, if the speedometer recorded his car as travelling at 100 kilometres per hour, the vehicle would in fact have been travelling between 92 and 96 km/h.

[4]      Mr W  ’ vehicle was first noticed by Constable Bublitz as he began to overtake another vehicle.   Mr W  ’ evidence was that he had set the vehicle’s cruise control to 104 kilometres per hour (which Mr W   projects, on the basis of the calibration check, to have been approximately 98 kilometres per hour) and that this was not altered during the passing manoeuvre.  Mr W   stated that once he drew  level  with  the  slower  vehicle,  the  slower  vehicle  accelerated  away  from Mr W  .  Mr W   claims that he then contemplated moving back into the left hand lane but he then saw the other vehicle brake heavily and it drew level with Mr W   once again.  Further along the road Mr W   was stopped by Constable Bublitz.

[5]      Mr W   contended at the scene that it was the other car that was travelling at 125 kilometres per hour, but Constable Bublitz rejected this.  Constable Bublitz was satisfied that he identified the correct speeding vehicle.   Constable Bublitz accepted that the breadth of the radar beam was wide enough to reflect the speeds of both vehicles.   He was, however, satisfied that the overtaking vehicle in the lane nearest to him (Mr W  ) was locked onto by the device.  There was one single, strong tone emitted from the radar device, indicating that there is only one vehicle in the beam.

[6]      Both  Constable  Bublitz  and  Mr W    gave  evidence.     Counsel  for Mr W    produced  the  manufacturer’s  brochure  for  the  Stalker  DSR  Radar. Counsel  sought  to  cast  a  reasonable  doubt  over  Constable  Bublitz’s  ability  to identify the speeding car accurately by showing that, at 50 metres, the width of the radar’s beam is 10 metres (with a 12 degree angle).  Therefore, either or both cars could have been in the beam.

[7]      The accuracy of the device and the speed it recorded were not in issue, but Mr W   disputed that the Police could prove it was a recording in respect of his vehicle.

[8]      Mr W   argued that there were mistakes within the infringement notice, namely  that  Mr W    was  identified  as  female,  and  that  the  constable  was unreliable in other details such as his recollection that he had handed Mr W   an infringement notice on the night.  These errors were said to cast a reasonable doubt on the reliability of the Constable’s evidence as to which car’s speed was being recorded.

[9]      The written reasons for the decision provided by the Justices are inadequately brief and it is easy to understand Mr W  ’ frustration that his arguments were not adequately considered.

[10]     For the respondent, Ms Woodcock accepted that this was the case.  However, she  submitted  that  inadequacy  of  reasons  is  not  sufficient  of  itself,  unless  the appellant can establish that the finding was not safe when, on her analysis of the evidence, the Court can indeed be satisfied that the finding was warranted.

Points on appeal

[11]     On appeal, Mr W   submitted that the District Court erred:

a)        in law, by applying a balance of probabilities rather than a beyond reasonable doubt standard of proof; and

b)in fact, by accepting radar evidence despite there being no possibility of it being Mr W  ’ car in the radar beam.

Approach on Appeal

[12]     Under s 119 of the Summary Proceedings Act 1957, appeals such as the present are to be by way of rehearing.  The general approach to this is now settled by the Supreme Court decision in Austin, Nichols and Co Inc v Stichting Lodestar1 and, although Austin, Nichols was a civil case, its general comments are still relevant. That is, that the appellate Court is to come to an independent conclusion in the proceedings.  There is, therefore, no presumptive level of deference to the District Court.

Discussion

Application of appropriate standard of proof

[13]     It remains absolutely fundamental that the elements of a criminal offence must be proven to a standard of beyond reasonable doubt, and traffic offences are no exception: Cunningham v New Zealand Police.2    However, there is nothing in the Justices’ decision that indicates that a standard of anything less than proof beyond reasonable doubt was applied to the matter before them.  The short finding as to the elements established is entirely consistent with their being satisfied on those points

beyond reasonable doubt, and there is no implication that they made any findings on a balance of probabilities. Accordingly, this ground cannot succeed.

1 Austin, Nichols & Co Inc v Stichting Lodestar [2007] 2 NZSC 103.

2 Cunningham v New Zealand Police HC Auckland CRI 2007-404-322, 28 October 2008.

Were  the  Justices  correct  in  finding  that  the  radar  speed  reading  related  to

Mr W  ’ vehicle?

[14]     The core issue is whether the Justices should have entertained a reasonable doubt that Constable Bublitz had correctly identified the vehicle whose speed had been logged.

[15]     Where proceedings are tried summarily, s 67A of the Summary Proceedings

Act 1957 directs:

…the need for caution before convicting the defendant in reliance on the correctness of any such identification and, in particular, the possibility that the witness may be mistaken.

[16]     In the case of a trial by judge alone, this caution will need to be in the form of self direction.  In the present case, there is no indication that s 67A was taken into account by the Justices.  However, Morris J stated in Waaka v New Zealand Police:3

[The Judge] is not required to specifically refer to the section nor indeed quote its provisions provided it is plain he has taken the provisions into account when considering the evidence before him, provided it is clear from his judgment he has done so.

[17]     In the present case, the Justices did consider the conflicting evidence that was offered by Mr W   and found that those pieces of evidence did not have any bearing.  Therefore, it appears that s 67A is made out.

[18]     In Cunningham, Heath J overturned the decision of two Justices of the Peace as His Honour found that on the facts there was room for doubt as to the way in which the reading was obtained, and from which vehicle.  Cunningham involved the conviction in the District Court of Mr Cunningham who, while driving his Ferrari in the right hand lane alongside a Toyota “people mover”, also travelling in the same direction,  was  captured  by  a  Stalker  DSR  radar  speed  detector  as  travelling  at

25 kilometres per hour over the speed limit.  The Police officer was travelling in the opposite direction.  In that case, the Ferrari was considerably smaller in profile than the “people mover” so the Police officer could not be certain beyond reasonable

3 Waaka v New Zealand Police HC Rotorua AP87/94, 11 November 1994 at 5.

doubt that the Ferrari had been recorded by the radar, and not the “people mover”. The Judge’s conclusion on the appeal was:4

What is important in the present case is that there is room for doubt as to the way in which the reading was obtained and from which vehicle.   That, coupled with the problematic aspects of visual identification, means that I do not accept the decision is safe.  For that reason, the appeal must be allowed.

[19]     That may be contrasted with the decision in Lincoln v New Zealand Police5 in which the challenge was to the accuracy of the record of speed of the Police vehicle, when the same type of radar device was used from a moving patrol car.  In that case, Justices of the Peace had rejected contested evidence and argument on the point, and an appeal was similarly pursued.  The approach there is encapsulated in paragraph [9]:

The appellant refers to Cunningham v Police HC AK CRI-2007-404-322 28

October 2008, in which it was held that if there is a reasonable doubt as to whether the beam which monitors patrol car speed was correctly monitoring

the static ground in front of the vehicle, then the charge will not be proved. That is undoubtedly correct.  This is a question of fact.  I do not consider that
the evidence here necessarily raises a reasonable doubt.   The proposition inherent in the Justices’ findings, that a reasonable doubt did not exist, was fully open to them.

[20]     Here, Mr W  ’ challenge to the outcome is perhaps best put in terms that the Constable is taken to have admitted that the speed reading might have been of either of his vehicle or that to the left of him, that because of other errors made on the evening, the accuracy of his recollection as to which vehicle’s speed was being recorded should be questioned, and the prospects of the Constable being correct were lessened by Mr W  ’ evidence that he travelled at a constant speed, controlled by a cruise control device that would have ensured he complied with the law.

[21]     In re-examination, the Constable was clear that the radar device emits a clear sound when it has locked its beam onto a single vehicle, and a “burbled” sound when there is more than vehicle.  Further, that at the time in question the sound emitted by

4 Cunningham v New Zealand Police at [17].

5 Lincoln v  New Zealand Police HC Palmerston North CRI-2008-454-55, 12 February 2009.

the device was clear and continuous and that from his observations at the time, the Constable was satisfied that the beam would have hit Mr W  ’ vehicle before it hit the other vehicle.

[22]     That provides an entirely adequate basis for a finding beyond reasonable doubt, and this is not a situation in which a challenge can be made to a factual finding, on the basis that the finding by the Justices was unsafe.

[23]     Mr Waugh’s written submissions suggest that Mr W  ’ conviction in the correctness of his recollection, and implicitly therefore the credibility that should have been given to his evidence challenging the proposition that the speed reading was of his vehicle, was evidenced by his pursuit of a point of principle on appeal when the financial outcome did not warrant it.

[24]     However, none of that required the Justices on these facts to make a positive finding  as  to  whether  and,  if  so,  why  they  rejected  Mr W  ’  claim  to  have travelled  at  all  times  in  compliance  with  the  speed  limit.    Their  reasoning  is consistent with the analysis I have undertaken and accordingly the factual finding challenged in the second ground of appeal cannot be made out.

Conclusion

[25]     The Justices applied the correct test as to the required burden of proof on the prosecution and correctly relied on the radar evidence presented.  Accordingly, this

appeal is dismissed.

Solicitors:

Horsley Christie, Wanganui for appellant

Armstrong Barton, Wanganui for respondent

Dobson J