Wesselingh v Police

[2013] NZHC 1993

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2013-476-000003 [2013] NZHC 1993

BETWEEN  STEPHEN WESSELINGH Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   8 August 2013 (by telephone) Counsel:   S Wesselingh, in person, Appellant

N M Willcocks for Respondent

Judgment:                8 August 2013

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Timaru
Copy to:

Appellant in person

WESSELINGH v NEW ZEALAND POLICE [2013] NZHC 1993 [8 August 2013]

The appeal

[1]      Mr Wesselingh received an infringement notice alleging that on 28 August

2012, at Waimate, he operated a heavy motor vehicle on a road at a speed exceeding

90km/h.  He was alleged to have been travelling at 106km/h.

[2]      Mr Wesselingh did not admit the offence.  The charge was heard by Justices of the Peace, in the District Court at Timaru, on 23 May 2013.  In a judgment given orally at the conclusion of the hearing, the Justices found the offence proved and imposed a fine of $120, plus Court costs.[1]

[1] Police v Wesselingh DC Timaru CRI 2012-076-1280, 23 May 2013 (K Dey JP and S Lodge JP).

[3]      Mr Wesselingh appeals against that decision.  He expresses concern about the nature of the evidence given by the police officers and submits there was insufficient evidence to prove the charge.  It is also inherent in his submissions that he believes the Justices did not appear to give him a fair hearing.  As to the latter point, in his notice of appeal Mr Wesselingh said:

The JP concerned does not appear to listen to my concerns and it appears I

have to prove I’m innocent rather than Police prove I’m guilty.

[4]      Mr Wesselingh’s use of the word “appear(s)” is informative.   It suggests a lack of understanding of the reasons why the Justices found against him.  That is a point to which I shall return.   The absence of an explanation of the reasons for reaching their conclusion is the basis upon which I propose to allow the appeal.

[5]      The appeal was set down for hearing on 8 August 2013.   Mr Wesselingh applied to transfer it to Dunedin.  I declined to make an order for change of venue. However,  Mr  Wesslingh  adopted  my  suggestion  that  the  appeal  be  heard  by telephone.  The hearing has taken place in that way.  Mr Wesselingh is at a remote location and Ms Willcocks has appeared for the Police, in the courtroom.

The facts

[6]      On 28 August 2012, at about 9.11am, Mr Wesselingh was driving an Isuzu truck, registration number ENK164 along State Highway 1 at Waimate.  The vehicle

speed was checked by a radar device operated by Constable Brazier.  Her evidence was that the reading disclosed a driving speed of 106km/h, that is 16km/h in excess of the speed limit applying to a heavy motor vehicle such as the one Mr Wesselingh was driving.

[7]      At the time that the radar reading was taken, there were two vehicles that had overtaken the truck.   Constable Brazier said the device was targeted at the truck. Constable Brazier confirmed that she was not trained to use the particular radar device.   In answer to a question from Mr Wesselingh, she advised that she was in training on the day and that she had no previous training in the operation of the “Stalk” device that was used.   Constable Brazier did not have a certificate of proficiency at the time.  Mr Wesselingh put questions to Constable Brazier about the circumstances in which the reading was taken.

[8]      At the time, Constable Brazier was driving a police vehicle in the company of Constable Doonan.  Constable Doonan gave evidence that he holds a certificate of proficiency and was supervising Constable Brazier.  She was driving the vehicle and he was seated in the front passenger’s seat.  Constable Brazier said that she had seen two vehicles in front of the truck driven by Mr Wesselingh.   She said that she checked the speed of the truck at 106km/h.   The consable confirmed hearing “a strong doppler tone from the radar device” and said she checked the speed.   No evidence was given to explain the method by which the device was used and why she was sure that it was the truck speed that had been taken.

[9]      Constable Doonan gave evidence.  He produced a certificate of accuracy for the speedometer in the patrol vehicle and one for the radar unit.  A copy of the radar log book for the day was produced.  So far as the speedometer and radar unit are concerned, there is a statutory presumption as to their accuracy on production of a

certificate.[2]      The  log  book  was  filled  out  by  Constable  Brazier  but  signed  by

Constable Doonan.

[2] Land Transport Act 1998, s 146.

[10]     Although  the  certificate  of  accuracy  for  the  speedometer  was  put  into evidence, there is nothing in that document that I can see, and nor was any evidence

given, as to the precise (or even estimated) speed that vehicle was travelling.  That was relevant to the time that was available to ensure that the speed of the truck was accurately ascertained.

[11]     Mr Wesselingh gave evidence.  His evidence in chief was brief.  He said:

THE COURT:

Q.       Right, carry on Mr Wesselingh.

A.        I maintain that these people actually clocked the cars in front of me that had just passed me, and I don’t believe I was doing that speed.  I back this up with a reading from a speed advice unit in Maheno, I think operated by NZTA, and that was more consistent with the speed I was doing.   It was 70ks, and the reading on my speedo would be consistent with then, the speed I was doing out on the highway.  So I maintain that these people have read the cars in front and are no pretending not to.  Also they claim or Constable Brazier claimed I refused to pull into a lay by.  She said it was two to 300 metres ahead.  In actual fact the nearest lay by was one and a half kilometres away.  Whoever supplied the paperwork to me couldn’t even  get  the  paperwork right.    He  supplied  wrong certificate  of accuracy for the speedometer of the vehicle.  It was actually another vehicle he supplied and he’s only recently sent the correct one.  So adding up, these people don’t know what they’re doing, can’t be trusted, and they have no evidence that applies to me.

Q.       So is that your evidence? A.        Yes.

...

[12]    In cross-examination, Mr Wesselingh was asked about the accuracy and reliability of his recall and the fact that his evidence as to speed related to what had happened at Maheno, rather than near Waimate.   At Maheno, Mr Wesselingh had tested his speedometer.   It was not disputed that there were facilities available for him to do so.  The issue was whether his recollection of doing that assisted him in recalling the speed at which he was travelling at the time the radar device was used.

The decision

[13]     At  the  end  of  the  evidence  the  Justices  had  to  consider  the  conflicting evidence and determine whether they were satisfied beyond reasonable doubt that the radar reading accurately reflected the speed at which the truck was travelling.

[14]     The Justices’ decision was conclusory in nature.  No reasons were given as to why they found the charge proved.  In particular, there is nothing in their decision to indicate why they were not prepared to accept that the evidence of Mr Wesselingh at least raised a reasonable doubt as to whether the charge had been proved.  In order to find the charge proved Mr Wesselingh’s evidence had to be rejected.

[15]     The Justices said:

[2]       We have heard today from two prosecution witnesses, and we have indeed heard yourself give evidence.  We have received three exhibits.  My colleague and I have listened to all the evidence intently, and we have made the decision that the case as laid, has been proven.

That explanation does not provide any insight into the reasons for the Justices’

conclusions.

Analysis

[16]     At the conclusion of the evidence, the Justices were faced with the following evidence:

(a)      They  had  no  evidence  of  the  speed  at  which  the  patrol  car  was travelling, in the opposite direction to the truck.

(b)This was the first day on which Constable Brazier had used the Stalk device.  She was in training for the first time that day.

(c)      No certificate of proficiency was produced  by Constable Doonan, though it would have been open for the Justices to accept his oral evidence on that topic.

(d)No explanation was given as to the way in which the radar device was operated by the driver of the patrol vehicle, as it was travelling at an unknown speed towards the truck.

(e)      Mr Wesselingh’s explanation was that he had tested the speed of his

truck at Maheno.  While it is accepted that Maheno is some distance

from Waimate, it is not inherently implausible that Mr Wesselingh might say that he was testing the truck at a particular speed at Maheno and believed he was doing the same speed by the time he was targeted by the radar device.

[17]     There is nothing in the Justices’ decision to explain why they rejected Mr Wesselingh’s explanation.  Rejection is the only way in which the Police could have excluded the reasonable possibility that Mr Wesselingh was travelling at the speed suggested and that there had been no error in the operation of the device.

[18]     The  Court  of  Appeal  has  made  it  clear  that  reasons  are  required  in circumstances such as this.   Delivering the judgment of the Court of Appeal in Wilson & Horton Ltd v Lewis,[3] the Chief Justice said:

[3] Wilson & Horton Ltd v Lewis [2000] 3 NZLR 546 (CA).

[79]   The principle of open justice serves a wider purpose than the interests represented in the particular case. It is critical to the maintenance of public confidence in the system of justice. Without reasons, it may not be possible to understand why judicial authority has been used in a particular way. The public is excluded from decision-making in the Courts. Judicial accountability, which is maintained primarily through the requirement that justice be administered in public, is undermined.

[80]   The second main reason why it said Judges must give reasons is that failure to do so means that the lawfulness of what is done cannot be assessed by a Court exercising supervisory jurisdiction. Those who exercise power must keep within the limits imposed by law. They must address the right questions and they must correctly apply the law. The assurance that they will do so is provided by the supervisory and appellate Courts. It is fundamental to the rule of law. ...

Result

[19]     In my view, the circumstances of this case required the Justices to provide an explanation, albeit brief, as to why they rejected Mr Wesselingh’s evidence and preferred  that  given  by  Constable  Brazier  and  Constable  Doonan.    It  was  not

sufficient to simply assert that the case had been proved beyond reasonable doubt.

[20]     For those reasons, the appeal is allowed and the finding of the Justices of the

Peace is set aside.  No rehearing is ordered.

P R Heath J