W v Police HC Wellington CRI-2006-485-29

[2006] NZHC 584

This Decision has been anonymised.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2006-485-29

BETWEEN  W

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         23 May 2006

Appearances: R M Lithgow for Appellant

T Epati for Respondent

Judgment:      26 May 2006

In accordance with r 540(1) I direct the Registrar to endorse this judgment with the delivery time of 12noon on the 26th day of May 2006.

RESERVED JUDGMENT OF GENDALL J

[1]      This was an appeal against orders made by Justices sitting in the District Court at  Porirua  that  the  appellant  pay $170  together  with  Court  Costs  of  $30 imposed after a defended hearing in respect of an infringement offence that he drove his Porsche motor vehicle on a road exceeding 100 kilometres per hour, namely

122 kilometres per hour.  The events surrounding the alleged infringement offence occurred on 21 March 2005 on that divided stretch of roadway of State Highway 1 between Porirua and the Plimmerton roundabout.

[2]      The  appellant  was  travelling  in  the  separate  north-bound  lane  between Porirua and Paremata in the vicinity of the Royal New Zealand Police College.  A police constable was seated in a patrol car on the elevated median area comprising

grass, shrubs and trees.  Evidence was that he checked the speed of the appellant’s

W V NEW ZEALAND POLICE HC WN CRI-2006-485-29 26 May 2006

motor vehicle as it approached him using a hand-held laser device recording a speed of 122 kilometres per hour.  His evidence was that he was operating the laser device in the centre grass median strip between 5.30pm and 9.00pm during which time he had a “run through” by another officer so as to be sure that the device was measuring correctly.  No issue was taken as to the accuracy of the device.

[3]      The officer’s evidence was that at approximately 7.04pm he observed a red sports car travelling at what he estimated to be around 120 kilometres per hour and focused the beam of the laser on the front of that vehicle tracking it for a couple of seconds.   He obtained a constant speed read out of 122 kilometres per hour.   His evidence was that he had a clear and unobstructed view of the car, the day being fine and the road dry, with weather conditions good.   He said it was still light.   The Porsche vehicle was stopped by the officer and the appellant was driving it.  He gave no explanation as to his speed other than to say he  did  not  regard  it  as  being excessive.

[4]      The appellant’s evidence was that it was the day after daylight saving ended in the year 2005.   It was “dusk” and he had his lights on but saw the police car reflected by those lights at a distance of approximately 100 metres.  The officer did not agree that the car lights were on.  In cross-examination the officer said it was a clear, light “evening” and he could see the bright red sports car coming towards him, it being the only vehicle in the vicinity.  He said it was the only vehicle in sight as he checked its speed.  The appellant challenged the identification of his vehicle as being that which was clocked travelling 122 kilometres per hour putting in issue the ability of the police officer to identify it by reason of visibility in the conditions.

[5]      Before the Justices Mr Lithgow, on behalf of the appellant, first challenged the admissibility of the evidence of the police officer.  He said that the officer was parked  on  the  elevated  grass  median  area  in  breach  of  the  Land  Transport (Road User) Rule 2004 (reg 2.14).  Therefore the evidence was unlawfully obtained and should not be admitted.  He submitted that the officer was in breach of reg 2.14 in driving his motor vehicle onto a lawn or cultivation adjacent to or forming part of the road and that the evidence was obtained from “an illegal set up”.  Counsel also

submitted that the patrol car was not parked parallel to the direction of the roadway in breach of reg 6.12.

[6]      The police prosecutor was not in a position to make measured submissions in answer to this argument, but the Justices, retired to consider submissions before delivering their ruling, ruling out the submissions made by Mr Lithgow and accepted that there was a technical breach of the law.  They then referred to reg 1.8(3) which provides an exception to any breach of the Rule if a person proves that the act or omission complained of was done by an enforcement officer and “necessary in the execution of the person’s duty”.   The Justices said that the definition of the word “necessary” was important.  They concluded that he constable’s duties on that day were to detect and apprehend speeding motor vehicles and went on to say:

“He could have parked on the break down lane but in this position we believe that he would have been very unsuccessful in carrying out those duties.  In essence the position of the police car was necessary for him to carry out those tasks on that day and in that place and this argument should then also fail.”

[7]      Whether or not the finding that the officer could lawfully have parked on “the breakdown lane” (whatever that means) is debatable, given that it generally forms part of the roadway, but the thrust of the ruling was that the evidence was admissible because the Justices found that it was necessary for the officer to park on the grass median area between the north and south bound lanes, as he had done.

[8]      The second contest concerned identification of the appellant’s vehicle as the speeding vehicle.  The Justices when giving their decision, outlined the evidence and the submission of counsel (that there was sufficient doubt such that the appellant’s view of the events – that he was not exceeding 100-105 kilometres per hour – should prevail).  In their decision the Justices noted the difference of views, or evidence, as to the speed of the appellant’s vehicle and said:

“The prosecution contends that the speed of the vehicle was 122 kilometres at 151 metres and this was calculated in the daylight.  The defence version of events differs from the prosecution to the extent that he was driving at dusk with his lights on, yet in his explanation that he saw the police vehicle without lights on on the side of the road.

We believe that the defendant is genuine in his recollection of the events on that day even though it is nearly a year ago.  However, in this case we give

due weight to the constable’s notes taken on that day where his evidence was clear and concise.  He did see the defendant’s vehicle and he measured his speed at that particular time of 151 metres at 122 kilometres per hour.  He saw the defendant’s vehicle before the defendant saw him.

The matter is proven beyond reasonable doubt.”

[9]      Whilst it is true that the Justices did not in fact have the police officer’s notes before them in evidence, he was cross-examined as to the content of the notes made at the time.  The notes were tendered to this Court by Mr Lithgow on appeal and they do not contain anything inconsistent with the evidence given by the police officer.

[10]     On appeal Mr Lithgow first sought leave for the Court to hear and receive further evidence.   He relied upon s119(3) of the Summary Proceedings Act 1957 which gives this Court discretionary power to hear and receive further evidence:

“if that further evidence could not in the circumstances have been reasonably adduced at the hearing.”

[11]     The proposed evidence has been tendered in affidavit form, which I have read, together with a number of photographic exhibits which I have seen.

[12]     The proposed evidence comprises a number of photographs taken on the anniversary  of  the  date  of  the  alleged  offence,  and  the  day  before.    In  2005

Mr Lithgow says that daylight saving finished on 20 March 2005, one day before the alleged offence.  In 2006 it finished on 19 March.  The photographs that are sought to  be  introduced  in  evidence  were  taken,  counsel  says,  to  illustrate  the  light conditions on 20 and 21 March 2006 progressively over a relevant period between

6.42pm and 7.05pm.  They were taken by cameras operated by a private detective and separately by counsel.   He submitted the evidence, if accepted, would have a bearing on the appeal by way of rehearing because it establishes that the police officer did not accurately describe lighting conditions one year earlier, on the date of the offence.  Thus, his evidence could not have been correct so there would be no proper basis to accept the truth of what he said.  Counsel submitted that the “new evidence” was crucial to the outcome of the appeal.

[13]     As is apparent from s119(3) the Court has a wide discretion to admit new or fresh evidence if the interests of justice so require.  Apart from such evidence not, in

the circumstances, being able to  be reasonably adduced  at  the  hearing,  decided authorities make it clear that the new evidence must be cogent or credible and if so, would it have had any bearing on the consideration of the case by the deciders of fact?

[14]     The overall approach to fresh evidence applications is dealt with R v Bain [2004] 1 NZLR 638 (CA). The first stage is to determine whether the evidence is fresh or new. Then whether it is sufficiently credible and cogent, to qualify for admission. The last stage is a more general enquiry as to what impact the fresh evidence might have had on the deciders of fact. It is a discretion to be exercised sparingly but the overriding test always must be whether the admission is in the interests of justice: R v Arnold [1985] 1 NZLR 193, 196 (CA). In general, the evidence must be new or fresh in the sense that it was not available at the time of trial or hearing and must be credible and of the nature that, if given with the other evidence adduced, might reasonably have led a decider of fact to return a different conclusion – see key points in the Court of Appeal’s judgment delivered by Richardson J in R v Crime Appeal (1988) 3 CRNZ 512 at 513.

[15]     As Tipping J said in R v Bain (above) at [22]:

“An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is:  (a) sufficiently fresh; and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh.   This is not an immutable rule because the overriding criterion is always  what course  will  best  serve  the  interests of justice.   The  public interest in preserving the finality of…verdicts means that those accused of [offences] must put up their best case at trial and must do so after diligent preparation.  If that were not so, new trials could routinely be obtained on the basis that further evidence was now available.   On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been.  The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.”

[16]     As  to  the  question  of  the  evidence being “fresh”  or  “new”  Mr  Lithgow submitted that it was impossible to adduce photographic evidence at the hearing, of the lighting conditions on the day of the alleged offence Monday 21 March 2005, because that date was historical when the matter came to be heard on 20 February

2006.  He says it was not until 20-21 March 2006 that such photographs could be taken.

[17]     This argument is flawed.  Leaving aside for the moment weather and other conditions which will affect visibility, the fact is that well before the date of hearing there existed ample evidence, which through diligence could have been obtained and presented by the appellant.  The issue was not whether daylight saving had ended – all agreed that that was the case – but what was the visibility as determined by the sun set on 21 March 2005, and the meteorological conditions at that time.   The officer had said it was fine, the road dry, and weather conditions were good.  But the time at which the sun set occurred approximately at the same chronological time on

20 September 2005 – that is six months before the date of hearing and not one year later.  That is because sun sets (and rises) occur at similar times twice in each year apart from on the shortest and longest days.  If photographic evidence was sought, and probative, it could have been obtained in September with reasonable diligence. The appellant lived and worked in the area.  Whether it would have been credible and cogent is another matter, to which I will shortly return.  But the type of evidence that Mr Lithgow seeks now to introduce is not fresh.  His argument that a year had to elapse before the photographs could be taken is not accepted.

[18]     Even if the evidence were new or fresh it also has to be sufficiently relevant or  cogent  that  it  might  have  affected  the  outcome  in  the  case.    Photographs attempting to show light conditions one year after the day of the incident, or from that matter six months after that date, cannot without more prove light conditions on the day of the accident.   Obviously, weather conditions will play a large factor. Overcast conditions may make the light appear darker.  The photographs I have seen all were taken in overcast, even heavy overcast, conditions.   Appearances of, or images  in,  photographs  may  be  affected  by  matters  such  as  exposure  time, developing techniques, shutter speed, aperture size, and speed of the film used. Mr Lithgow fairly acknowledged in his submissions that it is extremely difficult for photographic processes and lenses to capture exact  lighting conditions  or  as  an example of the eye of any particular individual who is perceiving the conditions. Use  of  a  light  measuring  meter,  as  adopted  in  some  sports,  would  have  been

available on the relevant day which, assuming similar weather conditions, may have been more cogent.  But this was not done.

[19]     Yet, in this case, it is not necessarily the lighting as such, but the visibility, that is relevant.  That is, the ability of the police officer to observe the Porsche motor vehicle and to point the laser device at it so as to receive the reading.  It was that which was called into question at the hearing and the officer repeatedly said that he could see the appellant’s car clearly.   The  Justices  found  him  to  be  a  credible witness.  Of course, he said the appellant did not have his lights on, but even if the appellant’s version is correct, namely that his car lights were illuminated, that would be a fact which would enable the car to be quite easily observed.   In the end the introduction of photographs showing a certain level of light or darkness in differing weather conditions a  year later, are not sufficiently cogent in my view to have damaged the credibility of the police witness as to what he observed on the day in question.

[20]     The three screens through which an appellant has to proceed before the Court should exercise its discretion to admit this further evidence;  namely its freshness; its credibility;  and whether the new evidence is such that it might reasonably have led to a finding that the information be dismissed, have not been satisfied.   In the exercise of my discretion and I am satisfied that the application to admit the new evidence should not be granted.  It is dismissed.

[21]     The  second  platform  of  the  appellant’s  argument  was  that  the  police unlawfully drove and parked on the grass median area, at right angles, and not parallel, to the road, in circumstances where it was not necessary to do so in the exercise of his duty.  Therefore, Mr Lithgow submitted the police officer should not be permitted to act unlawfully and commit what he said was “greater offences” than speeding offences to obtain evidence.  He said officers could “not break the law if it suited them”.  His argument was that the evidence obtained through the use of the laser device should have been excluded.

[22]     Regulation 2.14 provides that a driver must not drive a motor vehicle on a –

“lawn, garden, or other cultivation adjacent to, or forming part of, a road.”

The evidence given by the police officer was that in law enforcement terms the grass median strip was a road.  In reg 2 “median” is defined as meaning –

“A strip of land that may be part of a road and that separates vehicles travelling in opposite directions.”

I am not at all sure that reg 2.14 was intended to necessarily apply to a median strip of this type in this factual situation but will proceed on the basis, as did the Justices, that it does.

[23]     Secondly,  Mr  Lithgow  argued  that  the  officer’s  vehicle  was  parked  or stationed in breach of reg 6.12 which relates to parallel parking.  It provides:

“…the driver or person in charge of a vehicle must not stop, stand, or park the vehicle otherwise than parallel with the direction of the roadway and with the left side of the vehicle as close to practicable to the left side of the road.

6.12(2)  However,  in  a  one  way  road,  the  vehicle  must  face  the  same direction  as  the  vehicles  proceeding  along  the  road  and  as  close  as practicable to either side of the road.”

[24]     Mr  Lithgow submitted in this case there was  a breach  of the regulation because the officer was parked diagonally to the direction of the roadway in the wide median area.   He contended before me that the northbound lane was a “one-way road”.  So he said the vehicle had to face the same direction as well as to be parked parallel as close as practicable to “either side of the road”.  Regulation 6.12(2) seems to require the vehicle to be facing north and be parked as close as practicable to either side of the road.  The problem with this definition, as applied to the factual situation confronting the Justices, was that parking on the road or roadway on the left hand side (although the carriageway I am told was not designated as a motorway) could have resulted in a breach of reg 6.12.  That is, parking without due or care or reasonable consideration for other road users.  Also a possible breach of reg 6.2, that is not parking on a roadway when it is reasonably practicable to do so on the road margin which includes:

“Any uncultivated margin of a road adjacent to but not forming part of either the roadway or the footpath.”

[25]     Strictly applying the rules, if Mr Lithgow is correct, the officer had to park on the far left hand side of State Highway 1 facing north, or alternatively, as close as practicable to the right hand side of that one-way road.   The problem with this argument of course is that State Highway 1 is a two-way road separated by the wide median and parking on the carriageway or road margin (said by counsel to be the breakdown lane) – whether on left or right hand side, may have been impractical.

[26]     But as it reads, reg 6.12 technically applies, and perhaps, technical breaches of the regulations occurred.  I proceed on that assumption without having to make any definitive  finding because  the  general  exception  in  reg  1.8,  applied  by the Justices, in my view was properly applicable.  Parking the patrol car on the left hand side of the northbound lane of the roadway would have been impractical to perform his duties, and may possibly have led to breaches of either regs 6.1 and 6.2, although that is not absolutely clear.  The finding that it was necessary to enable the officer to carry out his duties effectively that he park on the central median strip is hard to quarrel with.  It was a factual finding and a judgment that the Justices were entitled to make.  The claim that it was not necessary because, according to a question put to the officer in cross-examination, he could have observed speeding vehicles from “the breakdown lane” and he answered “quite easily”, is of course correct.  But whether he could have parked there to carry out his duties over several hours is another matter.   That where he was parked was necessary for such a task was a factual finding reasonably open to the Justices.   Their admission of the evidence was justified.

[27]     Even if it be that the evidence was “illegally obtained” it would not have followed that it should have been excluded.  The Court has a discretion to exclude evidence that has been obtained unfairly: R v Capner [1975] 1 NZLR 411 (CA). An illegality may be a relevant consideration in that assessment, but it is not a question of breach of any rights of the appellant whether under the New Zealand Bill of Rights Act 1990 or otherwise. Any parking infringement in no way infringed the appellant’s rights or entitlements. It would have been within the discretion of the Justices to admit the evidence even if they had concluded it was unlawfully obtained (which was not the case). Whilst the Justices admitted the evidence on the basis that there had been no breach of any rule or regulation by the police officer, it would

nevertheless have been proper to exercise the discretion to admit the evidence obtained in the circumstances of this case, without reliance upon reg 18.

[28]     The decision of the Justices is upheld upon the basis of their conclusions and were matters of fact open to them on the evidence.  The order for payment of the infringement fee or fine and costs is confirmed.   The appeal is dismissed.   The respondent is entitled to costs, which I fix in the sum of $250.

………………………………

Solicitors:

R M Lithgow, Wellington for Appellant

Crown Solicitor, Wellington for Respondent

J W Gendall J