Warren v Police

[2014] NZHC 2258

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2014-406-7 [2014] NZHC 2258

CHRIS MURRAY WARREN

v

NEW ZEALAND POLICE

Hearing:	19 August 2014
Counsel:	Appellant in person A Mills for Respondent
Judgment:	17 September 2014

JUDGMENT OF WILLIAMS J

Introduction

[1]      Chris Warren was found guilty on 19 February 2014 of driving a vehicle at a speed  exceeding  100 km/hr  following  a  hearing  before  Justices  of  the  Peace B H Pitts and C G Bristed, in the Blenheim District Court.1    He was fined $80 and ordered to pay court costs of $30.

[2]      Mr Warren appealed against this finding in the District Court.  Judge Zohrab heard the appeal on 1 July 2014 and dismissed it.

[3]      Mr Warren now appeals to the High Court.  The grounds of his appeal are that:

1      Land Transport Act 1998, s 40; Land Transport (Offences and Penalties) Regulations 1999, regs 3 and 4; Land Transport (Road User Rule) 2004, r 5.1(1).

WARREN v NEW ZEALAND POLICE [2014] NZHC 2258 [17 September 2014]

(a)       the police did not comply with their obligations under s 14 of the

Criminal Disclosure Act 2008; and

(b)      the Justices of the Peace erred in fact and law.

Factual background

[4]      On 29 July 2013 at around 2.20 pm, the defendant was driving a motorcycle on State Highway 1 towards Blenheim.  Senior Constable Parkinson was travelling south of Ward towards the Mercer Stream and sighted the motorcycle coming around a corner.  Senior Constable Parkinson claims to have locked a radar on the defendant travelling at 111 km/hr in a 100 km/hr zone.  Mr Warren says he was travelling at

90 km/hr before the corner.  The constable travelled on until he was able to U-turn and followed and stopped the motorbike a couple of minutes later south of Ward.  On stopping the vehicle the constable asked for the defendant’s licence, issued an infringement notice and following a request showed the locked-on speed to the defendant. The defendant later disputed that speed.

Oral judgment of the Justices of the Peace2

[5]      The Justices first canvassed the evidence that was before them.

[6]      The police produced Senior Constable Parkinson as a witness.  He produced four exhibits: a log book; a certificate of accuracy for the car he was driving, the speedometer  and  odometer;  a certificate of accuracy for the stalker unit;  and  a certificate of proficiency for him to operate the equipment.   Senior Constable Parkinson also gave evidence to the effect that he saw the defendant coming around a corner as he travelled up Tar Barrel Hill and estimated his speed to be in excess of

110 km/hr so activated the radar and locked on a speed of 111 km/hr.   The radar showed a steady speed with a steady tone which meant that there was no interference from another vehicle or object.  There were no other vehicles in sight.  The constable did a U-turn and stopped the defendant about two minutes later.   The constable showed  the  defendant  the  locked  on  speed  and  completed  his  notes  about  the incident in the car while the defendant was at the scene.

[7]      Mr  Warren  also  gave  evidence.    He  said  he  was  travelling  at  90 km/hr approaching the corner and was taking special care to travel at the correct speed.  He had a radar detector which was on but did not indicate a police vehicle present.  He relied on this radar as he cannot constantly check his speedometer, particularly on an uneven road.  Mr Warren denied under cross-examination that his speed could have crept up and “he was pretty sure he was not speeding”.  Mr Warren did not believe seeing the locked in speed was sufficient as too much time had elapsed.  He said the time from locking the speed to pulling him up was 10 to 15 minutes.   He also criticised the disclosure he had received from the police and said that the constable was incorrect to say that he slowed down at the corner because on a bike you always accelerate out of a corner.

[8]      The  Justices  accepted  the  constable’s  evidence,  confirmed  by  the  four exhibits that there were no other vehicles, and the locked on speed was viewed by the defendant at the time.  There was the Justices said, no reason for that locked on speed to relate to any other vehicle.  Although Mr Warren had a genuine belief that he was within the speed limit, the officer’s observation and accuracy of the speed detector confirm the charge.  The Justices therefore found the charge proven beyond reasonable doubt.

Oral judgment of Judge Zohrab3

[9]      Mr Warren appealed against the finding that he was guilty of the infringement offence.   For the purposes of an appeal, such an appeal is treated as if it were an appeal against conviction.  Pursuant to s 232 of the Criminal Procedure Act 2011 an appeal against conviction will be allowed if the Justices erred in their assessment of the evidence to such an extent that a miscarriage of justice has resulted, or if for any reason, a miscarriage of justice has occurred.

[10]     Mr Warren’s grounds of appeal were that the Justices erred in fact and law and that there was serious non-disclosure by police under s 14 of the Criminal Disclosure Act.  Mr Warren sought disclosure of manuals in order to argue that the constable’s radar was not operating at the time as his own radar detector did not go

off.  He also challenged the constable’s evidence that there were no other vehicles in sight and that there was therefore no interference with the radar.   Mr Warren had accepted that evidence at trial.  Mr Warren had by the time of the appeal obtained a full copy of the Police Speed Detection Operators Manual DUT244 (he argued that an incomplete copy had previously been disclosed and the Crown did not challenge this) and now argued there were two vehicles in front of and two vehicles behind the police officer’s car and that this must have interfered with the radar.

[11]     Judge Zohrab first considered whether, leaving the disclosure issue to one side, on the basis of the evidence before them, the Justices were correct in their conclusion.  He reiterated the evidence received at the hearing and concluded that there was nothing which in his view could lead him to conclude that the Justices erred in their assessment of the evidence before them.   They had sworn evidence from the police officer that there were two vehicles only (and no evidence contradicting that), that the officer locked on the motorcycle, spoke to the motorcyclist, showed the read out and gave him a ticket.  There was no suggestion that there were any other vehicles or other impediment. The position was effectively, either the police officer was lying or Mr Warren was mistaken.  On the basis of those facts they were correct in concluding that the police had proven beyond reasonable doubt that Mr Warren was operating his vehicle at a speed in excess of 100 km/hr.

[12]     In terms of disclosure, Judge Zohrab acknowledged that Mr Warren raised the issue of disclosure at the hearing but the defendant made no request for a ruling. Moreover, Judge Zohrab considered that the critical material that was required to be disclosed, was disclosed.  That is the radar log book, the two certificates of accuracy and the certification of proficiency.  The Police Operators Manual was disclosed, the manufacturer’s  manual  was  not  in  the  possession  of  police  and  could  not  be disclosed and the relevant code and guide were publicly available on the internet and so were not disclosed.

[13]     Judge Zohrab considered whether the other material, if it had been disclosed would  have  helped  Mr  Warren.    The  copy of  the  manual  Mr Warren  received indicated there are potential issues when there is more than one vehicle.  That matter took on some significance in the evidence.  But the Justices relied on the officer’s

evidence that radar emitted a constant tone meaning there was no vehicle or object in the  beam  likely to  produce a  false  result.    Judge  Zohrab  would  have  expected Mr Warren to raise the issue as a matter of common sense.   He did not need a complete copy of the manual to do so.

[14]     Moreover, Judge Zohrab concluded that the material not disclosed could not have  advanced  Mr  Warren’s  case  and  “there  could  be  nothing  found  in  a documentary form in any way which could have assisted in proving that the police officer  had  given  false  evidence  and  had  attributed  this  locked  speed  to  the defendant, when in fact the defendant had not been speeding”.  It comes down to the credibility and reliability of the police officer and he could not see how the provision of manuals and the like would have assisted in challenging that matter.

Second appeals

[15]     Section 237 of the Criminal Procedure Act 2011 provides for a right of appeal against a determination of a first appeal court, with the leave of the second appeal court.  Leave will only be granted if:4

(a)       the appeal involves a matter of general or public importance; or

(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[16]     If leave is granted, the second appeal court must determine the appeal on the same grounds that apply to first appeals.5  That is, an appeal will be allowed if:6

(a)      in  the  case  of  a  Judge-alone  trial,  the  Judge  erred  in  his  or  her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(b)      in any case, a miscarriage of justice has occurred for any reason.

4      Criminal Procedure Act 2011, s 237(2).

5      Section 240.

6      Section 232.

Mr Warren’s submissions

[17]     Mr  Warren  raises  the  same  two  issues  on  appeal,  as  he  did  before Judge Zohrab: serious non-disclosure under s 14 of the Criminal Disclosure Act and that the Justices erred in fact and law.

Non-disclosure

[18]     Mr Warren challenges the non-disclosure by the police of a manual relating to the radar device, copies of jobsheets and other notes of evidence including log book entries.

[19]     On 19 February 2014, he sent a letter to the Marlborough Area commander requesting further information under s 14 of the Criminal Disclosure Act to demonstrate to the Court that the radar used by Senior Constable Parkinson was not operating at the time as his radar did not go off.   Disclosure of the manual would have enabled him to run the defence that there were at least two vehicles in front of and behind the officer and that this interfered with the radar beam.   This is an

accepted defence.7

[20]     Mr Warren says that the police said he received the DUT244 manual from them in disclosure when he had not.

[21]     Mr Warren says this evidence was required to be disclosed by s 145 of the

Land Transport Act 1998 which reads:

145     Evidence of approved vehicle surveillance equipment

(1)       In proceedings for a moving vehicle offence, an image produced by means of an exposure taken by approved vehicle surveillance equipment and showing or recording a motor vehicle on a road, the speed of the vehicle, the location of the vehicle, the colour or form of a traffic control device, the fact that a toll has not been paid in respect of the vehicle, and the date and time when the image was taken, or showing or recording any of those things, is, in the absence of proof to the contrary, sufficient evidence of that fact or event.

(2)       The production in proceedings for a moving vehicle offence of an image purporting to be an image referred to in subsection (1) is, in

7      Cunningham v Police HC Auckland CRI-2007-404-322, 28 October 2008.

the absence of proof to the contrary, sufficient evidence that the image was produced by means of an exposure taken by approved vehicle surveillance equipment.

Erred in fact and law

[22]     Mr Warren submits the lack of any action or acknowledgment of the lack of disclosure by the Justices was a serious error of law.   The case should have been dismissed or adjourned until he had this information or the Justices should have inquired into the relevance of the withheld information and why it was withheld.

[23]     Mr Warren says Judge Zohrab erred in law when he decided the undisclosed evidence would not have made a difference to the appellant’s case at the original hearing.  The disclosure would have enabled him to challenge the officer claiming there were no other vehicles in the area which would have enabled the Justices to make a finding on  the officer’s  credibility on  this  issue.    He did not have the knowledge at the hearing to know this was an issue he should have raised.

[24]     Mr Warren says the Justices erred in fact when they ruled that he relied on his radar for speed.   He relied on his radar to avoid being issued “wrongful speeding tickets”.  He did not use it in place of a speedometer.

[25]     Mr Warren also challenged the evidence at the hearing regarding when and where he was pulled over and the original infringement notice.  Mr Warren says he was only shown the officer’s radar with 111 on it and no other numbers.  He further says that he was pulled over about 10 minutes after seeing the officer, that he did not slow down as he came around the corner, that he was doing 90 km/hr and slowed down before the corner then accelerated out of it.  His radar did not activate at any time.  He was not pulled over where the officer said he was – Seaview Farms.  This place does not exist.  The first place he could have managed to get off his bike was

8.2 km away as he needed somewhere flat to stop as he is severely disabled in his left leg.  The next place he could have got off his bike is 13.2 km away and the place he thinks he got off is 21.8 km away.

Police submissions

[26]     The police submit that all relevant disclosure was provided to Mr Warren prior to the hearing.   The appellant requested further disclosure in a letter dated

28 January 2014.  The following items were not disclosed under s 16 of the Criminal

Disclosure Act:

(a)       copy  of  Manufacturer  Operators  Manual/User  Guide  for  Radar: S/N 38418 & Rear Antenna S/N: 11694 & Front Antenna 47377;

(b)      copy  of  Code  of  Operations  for  use  of  Radar  Speed  Detection

Equipment; and

(c)       copy   of   the   Speed   Enforcement   Guide   from   Police   National

Headquarters.

[27]     Mr  Warren  seeks  the  manuals  to  demonstrate  the  radar  used  by  Senior Constable Parkinson was not operating as his radar detector did not go off.   The police submit that Judge Zohrab was correct to find that further disclosure would not have assisted Mr Warren in establishing this as the primary issue was one of credibility and reliability of the police officer and the disclosure would not have assisted with this.

[28]     In terms of the non-disclosure of the complete radar manual.  The police say Judge Zohrab was correct to dismiss this on the basis that all necessary information had been disclosed.  Senior Constable Parkinson gave evidence that there were no other vehicles, and Mr Warren did not give evidence to the contrary at the original hearing.  His assertion in submissions that “there were at least two vehicles in front of him and two behind him” was not therefore part of the evidence before the Justices.     Moreover  the  operator’s  manual  would  not  normally  form  part  of

disclosure.8

8      Price v Police HC Invercargill CRI-2010-425-39, 5 April 2011.

[29]     Further,  the  police  say  s 145  of  the  Land  Transport  Act,  contrary  to Mr Warren’s submission does not place a positive obligation on the police to disclose copies of job sheets and other notes of evidence including log book entries.

[30]     The police say the Justices did not err in law by not inquiring into the issue of non-disclosure at  the hearing and  by not  making a determination  to  dismiss  or adjourn   the   hearing   until   the   information   was   disclosed.   This   is   because Judge Zohrab was correct that all necessary disclosure was given and that, even if that  position  is  wrong,  Mr Warren  received  a  fair  hearing  as  disclosure  of  the complete manual could not have advanced Mr Warren’s case.

[31]     Nor, the police submit, did the Justices err in fact by ruling that he relied on his radar for speed. Judge Zohrab correctly summarised the Justices interpretation of the  appellant’s  evidence  which  was  that  “the  defendant  had  expected  his  radar detector to be activated if the police radar was in operation and he was travelling at speed such as would activate the police radar”.

[32]     The Justices did not err in fact as to when and where  Senior Constable Parkinson first locked in Mr Warren’s speed and subsequently pulled  him over. Senior Constable Parkinson gave evidence there was a one to two minute gap and he stopped the appellant approximately 1.5 km from where he locked in the speed. Mr Warren’s evidence was that the time gap was 10 to 15 minutes.  Judge Zohrab did not directly address this ground but the police submit that his overall conclusion that there is nothing which would lead to a conclusion the Justices erred such that there has been a miscarriage of justice should be upheld.

Admission of new evidence

[33]     During the course of the hearing before me, Mr Warren appellant sought leave to admit new evidence.  I indicated that he could provide such new material as he thought might assist the Court and I will rule on its admissibility.  He provided the following documents:

(a)       further submissions dated 19 August 2014;

(b)photographs taken by the appellant of locations where he could have been  pulled  over  by  Senior  Constable  Parkinson  in  light  of  his physical disability;

(c)       a medical certificate dated 4 August 2014 confirming his disability;

(d)a letter from Mr Warren to the police dated 28 January 2014 seeking further disclosure;

(e)      a letter in reply from the police dated 10 February 2014 enclosing a certificate of accuracy for radar, maintenance records and operator’s manual while indicating that all other disclosure had been sent by the officer-in-charge (it seems given the nature of submissions made by both parties, that no further disclosure was actually given).

[34]     The police opposed leave.  Ms Mills for police argued that the evidence was not sufficiently fresh as it could, with reasonable diligence, have been admitted at trial.  Nor, it was argued, was it sufficiently credible.

[35]     I am minded to adopt a flexible approach to the admission of this material. Mr Warren was unrepresented and it seems oppressive to enforce the new evidence test with rigour in those circumstances.  In any event, I do not necessarily consider that  the evidence itself  would  or could  have  made a material  difference to  the outcome.   Rather, I consider that the material he sought to adduce indicates that disclosure was flawed and that as a result the defendant was not able properly to test the police’s case.

[36]   I am prepared therefore to admit the new material for the purpose of consideration of the appeal accordingly.

Analysis

[37]     Mr Warren should be granted leave to appeal if “a miscarriage of justice may have occurred, or may occur unless the appeal is heard”.9   Section 232(4) defines a miscarriage of justice as “any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)       has created a real risk that the outcome of the trial was affected; or

(b)      has resulted in an unfair trial or a trial that was a nullity. [38]  Section 14 of the Criminal Disclosure Act provides:

14       Request for additional disclosure

(1)       At any time after the duty to make full disclosure has arisen under section 13, the defendant may request that the prosecutor disclose any particular information, identified by the defendant with as much particularity as possible.

(2)       The prosecutor must disclose information requested by the defendant under subsection (1) unless—

(a)      the information is not relevant; or

(b)      the information may be withheld under section 15, 16, 17, or

18; or

(c)      the request appears to be frivolous or vexatious.

(3)       If a request under subsection (1) is declined by the prosecutor under subsection (2), the prosecutor must, as soon as is reasonably practicable after making the decision to decline the request, inform the defendant of that decision, together with—

(a)      the reason for the decision; and

(b)       if the defendant so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by section 15, 16, 17, or 18 and (in the case of the interests protected by section 18) there is no overriding public interest.

(4)       Nothing in this section limits the duty to disclose information under section 13.

9      Criminal Procedure Act 2011, s 240.

[39]     It must follow that Mr Warren was entitled to copies of jobsheets and other notes of evidence including log book entries as requested, and a copy of the Speed Detection Operators Manual (DUT244).

[40]     Mr  Warren  submitted  that  he  had  received  only  part  of  the  DUT244 operator’s manual and that this part did not include the crucial portion dealing with the accuracy of radar read outs when there is more than one vehicle in the beam. The police accept that it cannot show that the entire manual was provided.

[41]   Secondly, Mr Warren challenged various aspects of Senior Constable Parkinson’s evidence: whether he was accelerating out of the bend on Tar Barrel Hill, where he was pulled up after the radar allegedly locked on; and whether there were other figures on the read out of the radar other than the figure “111”.  All these factors, Mr Warren suggests, go to the question of whether Senior Constable Parkinson was lying or not, or mistaken or not, about whether the radar accurately detected Mr Warren’s speed.

[42]     Senior Constable Parkinson gave relatively detailed evidence about where, when and how Mr Warren was clocked and pulled over, but as far as I can tell, he provided no documentary evidence in support of those contentions even though by his own evidence, once he had written out the ticket to the appellant, he remained in his vehicle making notes of the relevant events.  If such notes were disclosed (and it seems they were not), they would or could have provided some basis upon which to test Senior Constable Parkinson’s evidence about the detail of his assessment of Mr Warren’s  speed,  and  where  and  how  the  ticketing  actually  occurred.    That evidence does go to Senior Constable Parkinson’s credibility.

[43]     As the learned District Court Judge rightly pointed out, this was essentially a credibility case.  Was Senior Constable Parkinson lying, or at best mistaken due to poor operation of the radar unit?  Or was his evidence as to what happened credible to the standard of beyond a reasonable doubt?

[44]     The details of the manual would have provided a basis for cross-examination on those matters, though I do not necessarily agree with the learned Judge that the

appellant should have cross-examined on the presence of more than one vehicle within the beam of the radar as a matter of common sense.  In addition, such notes as the constable made would have provided a basis to test the constable’s overall story. Mr Warren  was  entitled  to  have this material  before him  when  he mounted  his defence. There is no reason why it should not have been available.

[45]     I do not suggest that such disclosure is likely to reveal either deliberate or accidental flaws in the speed read out.   Rather, my point is that Mr Warren was entitled to mount his defence on the basis of full disclosure of potentially relevant material in the possession of the prosecuting authority.   In a credibility case, the undisclosed material was potentially relevant.  Miscarriage is therefore made out.  In my view, this matter should be reheard following full and proper disclosure.

[46]     Leave to appeal is granted.  The appeal is allowed and the matter is remitted back to the District Court for rehearing accordingly.

Williams J