Williams v Police
[2018] NZHC 1278
•1 June 2018
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV-2018-404-000059
[2018] NZHC 1278
BETWEEN JOHN ALLAN WILLIAMS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 May 2018 Appearances:
Appellant in Person
T R Bellingham for Respondent
Judgment:
1 June 2018
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 1 June 2018 at 3.00 pm
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date……………………….
WILLIAMS v NEW ZEALAND POLICE [2018] NZHC 1278 [1 June 2018]
Introduction
[1] Following a defended hearing before two Justices of the Peace in the District Court at Auckland, John Williams was found to have infringed the Land Transport (Road User) Rules 2004 by using a cellphone while driving a motor vehicle and fined
$80 with court costs of $130.1 His appeal to the District Court was unsuccessful2 and he now wishes to appeal to this Court.
[2]Mr Williams’ proposed grounds of appeal are that:
(a)the Judge pre-determined the outcome of the hearing;
(b)the Judge introduced testimony of his own;
(c)the Judge wrongly interpreted the provisions of r 7.3A(3) of the Land Transport (Road User) Rules relating to the use of a mobile phone to make a 111 or *555 call;
(d)the prosecution was brought improperly and maliciously.
[3] Although Mr Williams’ infringement offence did not result in a conviction, s 375 of the Criminal Procedure Act 2011 (CPA) provides that a reference to a “conviction” is deemed to be a reference to an order to pay a fine and court costs. The proposed appeal therefore falls within s 237 of the CPA under which leave is required for a second appeal. Leave must not be granted under s 237 unless the Court is satisfied either that the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.
[4] An appeal is unlikely to give rise to an issue of general or public importance unless it raises an issue of general principle or of general importance in the administration of the criminal law, including one that has broad application beyond the particular case.3 The Court’s perception of the strength of the issues that might be
1 New Zealand Police v Williams DC Auckland CRI-2017-004-4563, 22 August 2017. Mr Williams was ordered to pay a fine of $80 and court costs of $130.
2 Williams v New Zealand Police [2018] NZDC 2867.
3 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
raised on appeal may be relevant to determining whether an appeal is of general or public importance.4 A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.5
[5] For the reasons that follow, I do not consider that any matter of general or public importance arises, nor that there is any risk of a miscarriage of justice having occurred.
The case before the Justices of the Peace
The issue
[6] Mr Williams accepted that he had used a mobile phone on the evening in question but said that he only did so to call 111 after noticing that he was being followed by a police officer, Constable Roley, which concerned him. He maintained that he was entitled to do so by virtue of r 7.3A(3) of the Land Transport (Road User) Rules.
[7]Rule 7.3A relevantly provides that:
(1)A driver must not, while driving a vehicle, –
(a)use a mobile phone to make, receive, or terminate a telephone call; or
(b)use a mobile phone to create, send, or read a text message; or
(c)use a mobile phone to create, send, or read an email; or
(d)use a mobile phone to create, send, or view a video message; or
(e)use a mobile phone to communicate in a way similar to a way described in any of paragraphs (b) to (d); or
(f)use a mobile phone in a way other than a way described in any of paragraphs (a) to (e).
(1A) Sub-clause (1) is overridden by sub-clauses (2) to (7).
4 Jones v Wellington City Council [2017] NZCA 261 at [19].
5 Criminal Procedure Act 2011, s 232(4).
…
(3)A driver may, while driving a vehicle, use a mobile phone if –
(a)the driver is using the phone to make a 111 or *555 call; and
(b)it is unsafe or impracticable for the driver to stop and park the vehicle to make the call.
[8] Constable Roley said that he was not following Mr Williams when he first saw Mr Williams using the mobile phone. The critical factual dispute was, therefore, where Constable Roley was located when he first saw Mr Williams using the mobile phone.
The evidence
[9] I start with the contact that occurred between Mr Williams and Constable Roley earlier in the same evening of 14 March 2017. Although it is apparent from the transcript that the Justices of the Peace did not regard this as relevant, it does provide context for the infringement and is largely undisputed. Mr Williams took it upon himself to become involved in an exchange between some police officers and three girls on Sandringham Rd. He said that he had approached the intersection of Stoddard and Sandringham Roads in his car and noticed the incident while sitting at the lights. He turned into Sandringham Road, then into William Blofield Avenue, parked and walked back. He turned on his video recorder and demanded details. Dissatisfied, he called Police Communications and informed them of “the real situation”. Constable Roley and another officer arrived. The girls were released and Mr Williams returned to his car. He noticed that Constable Roley followed him in his police car. Mr Williams turned on his mobile phone camera to film and demanded to know why Constable Roley had followed him. The officer drove off. Mr Williams called Police Communications on 111 to complain about Constable Roley following him. This much seems relatively uncontested.
[10] Constable Roley’s account of what happened after that was as follows. Approximately 20 – 25 minutes after the incident on Stoddard Road, at about 7.10 pm, he was driving east on Aurora Avenue towards the Sandringham Road extension. As he approached the intersection of Aurora Avenue and Sandringham Road he noticed a
motor vehicle travelling north along Sandringham Road towards Mount Albert Road. From where he was sitting he could see that the driver was holding a mobile phone:
Q: You indicated that this person was holding a cellphone. Could you describe to the Court what you mean by that?
A:As the vehicle was moving away I saw the driving holding the phone in his hand, basically bringing it to the front of his face so his, probably half the phone was over the steering wheel, the top of the steering wheel, and the other half was below it.
Q: Which hand was he using? A: His right hand
…
Q: And could you describe the shape of his hand or his arm in relation to what he was doing?
A: All I saw was – what I focused on when I saw it was the phone in his hand, it was just held up. I couldn’t tell if he was texting or holding it on a speaker phone. I just saw the phone in his hand …
[11] Constable Roley turned into Sandringham Road, intending to stop the vehicle, and only then recognised the driver as Mr Williams. At this stage, he was about five vehicles behind Mr Williams. Upon recognising Mr Williams as the driver and, in the knowledge that Mr Williams had made previous 111 calls, he contacted his dispatcher to enquire if any further calls had been received. The dispatcher said there were none. About two minutes later the dispatcher contacted him again to say that Mr Williams was on the phone to the Communications Centre. Constable Roley activated his lights and siren, requiring Mr Williams to stop.
[12] Constable Roley gave evidence that he had made inquiries later of what calls had been made to the Police Communications Centre and was satisfied that Mr Williams was on the phone to the Communications Centre at 7.10 pm. He produced a transcript of the 111 call which included statements by Mr Williams to the effect that he had been “harassed by armed personnel” and that “they’ve been stalking me”. However, his evidence was clearly to the effect that Mr Williams was already holding the mobile phone in front of him when Constable Roley first saw him driving along Sandringham Road, past Aurora Avene.
[13] Mr Williams gave an entirely different account. He said that after Constable Roley had driven away from William Blofield Avenue:
I called Police Communications again and reported him for following me for no reason. I waited on-site for about 8 minutes, most of it whilst on the phone to the police on 111. After I waited I got into my vehicle and approached the intersection of William Blofield and Sandringham Road and waited to turn right. As it was heavy traffic I had to wait a long time. I observed Constable Roley, I observed a police car coming down the road, which I believe is called Sandringham Road Extension. When he got close enough I could see it was Constable Roley driving. He then continued down, stopped at the lights at Stoddard and Sandringham and went through to the dead-end section at, by the motorway. He turned around and waited for the lights to turn red. Because traffic was still heavy I had to wait some time. I finally managed to get on to Sandringham Road. He was three vehicles behind me when I managed to get on. I continued to drive city bound on Sandringham Road. We stopped at the lights at Sandringham and Mount Albert, I believe for a while he was still behind me. We then proceeded on the green light up Sandringham Road at at approximately Eden Vista Road I called police 111 because it was apparent that Roley was following me …
I believe I was on the call for about 10 minutes. I believe the call logs from myself, provided by SPARK 111 call centre, the call logs from my hand-piece and the call logs provided in evidence against me by Constable Roley indicate this as well. So there’s no doubt I was on a 111 call. At the St Lukes/Balmoral Road/Sandringham Road intersection Roley pulled up beside my vehicle in the left-hand lane and I gave him a salute. The lights turned green so I drove off. He pulled in behind me, turned his flashing lights and siren on and I pulled up at the safest possible place which was down Watson Ave.
[14] It is apparent from this account that Mr Williams was no longer on the mobile phone when he turned out of William Blofield Avenue into Sandringham Road.
[15] What happened after Mr Williams stopped is reasonably clear. Mr Williams got out of the vehicle, pulled out his mobile phone and began recording and yelling at Constable Roley. Constable Roley pointed out that the warrant of fitness on Mr Williams’ vehicle was expired. Mr Williams accused Constable Roley of harassing and stalking him. Constable Roley issued an infringement notice for the expired warrant of fitness and one for using a mobile phone while driving. Then Mr Williams purported to arrest Constable Roley “for stalking”. Eventually, the officer got back into his car and drove away.
The decision
[16] Clearly, if Constable Roley’s account was correct then Mr Williams must have been using the mobile phone for something other than a 111 or *555 call when the officer first saw him because, on that account, he was not following behind Mr Williams at that point so Mr Williams would have had no reason to have made a 111 call to complain about being followed. On the other hand, if Mr Williams’ account was correct then it was possible that he was using the mobile phone for a 111 call because he claimed that it was seeing Constable Roley following him that caused him to make the call.
[17] The Justices of the Peace did not expressly analyse the issue in this way but it is evident that they preferred Constable Roley’s evidence to that of Mr Williams:
Well, Mr Williams, this matter is a strict liability matter and evidence from the constable is quite clear. I need to say that you got yourself involved in another unrelated incident which has clouded rather than clarified the matter before us, but arising from this matter you became obsessed with the actions, almost paranoid with the actions of Constable Roley and because of this situation it became distorted in your mind. Some of the allegations you have made about this police officer are totally unacceptable and completely unfounded, and not helpful to your cause and your defence, because the evidence before us quite clearly shows that this charge is proven.
The District Court appeal
[18] Judge Burns did identify the issue of where Constable Roley was at the time he first saw Mr Williams and, although not expressed, it is clear that on his view of the evidence Constable Roley was in Aurora Avenue when he first saw Mr Williams:
The officer gave evidence that when first observed the appellant was not phoning 111 but presumably another person or another person had phoned him. It was confirmed that the 111 call was made a bit later when the appellant considered he was being followed by the police. This is confirmed by the content of the emergency call produced as exhibit 2 and the statements made by the appellant himself which indicate that he phoned 111 once he considered he was being followed. The officer said he had observed him prior to that using a cellphone and that aspect of his evidence was not challenged by Mr Williams in cross-examination …
It was accepted however by the officer that certainly the appellant subsequently phoned 111. There was no proof that the appellant was actually talking to anybody on the cellphone when first observed by the officer but the actions of the appellant were such that he was in a position to either receive or make a call.
[19] Although Mr Williams may not have directly challenged Constable Roley in cross-examination, he certainly gave evidence contrary to the officer’s evidence so it was clear that there was a challenge to Constable Roley’s account. However, it was open to both the Justices of the Peace and the District Court Judge to accept Constable Roley’s account.
[20] The Judge clearly accepted Constable Roley’s account, including that fact that the officer saw Mr Williams with his mobile phone on the steering wheel prior to the 111 call being made. But he was not satisfied that this constituted use for the purposes of r 7.3A. The Judge therefore focused entirely on the subsequent 111 call, which both parties accepted had been made:6
I have set out above that the officer observed the appellant using his cellphone prior to the 111 call being made, or at least seeing him with the phone on his steering wheel. The evidence is unclear as to whether or not he was making a phone call or receiving a phone call at the time. On the balance of probabilities I draw an inference that he was, but on a beyond reasonable doubt standard I cannot determine sufficiently and conclusively that there was use at that time. I can determine that there was subsequent use because it has been clearly admitted by the appellant. Also it is proved by the log with the 111 service which was referred to above. Therefore I can find that sub-clause 3(a) applies and that he was a driver whilst using the phone to make a 111 call.
(emphasis added)
[21] The Judge therefore proceeded to consider the application of r 7.3A(3). He held that the onus was on the prosecution to show that it was safe and practicable for Mr Williams to pull over and that it had failed to do so. However, the Judge concluded that r 7.3A(3) did not apply because he did not consider Mr Williams’ reason for making the call to be genuine. The Judge reached this conclusion because he interpreted r 7.3A(3) as requiring the 111 call to be objectively “genuine or legitimate”. He considered the decisions in R v Fraser, in which the Court of Appeal discussed the purpose of the 111 emergency call system as being “to enable citizens to be put quickly in touch with the emergency service they need and for that service to respond urgently if required”.7 He also considered the Court of Appeal’s decision in R v Findlay in
6 At [20].
7 R v Fraser [2005] 2 NZLR 109 at [28].
which the court referred to “the inherent urgency and emergency nature of a 111 call”.8 The Judge concluded that:
In my view the Court has set out that calls for 111 service have to be for genuine and legitimate reasons.
In this particular case I find that Mr Williams’ reason for a call to the 111 service was not genuine or legitimate. The content of the call as set out in this judgment clearly establishes that there was a contradiction; in that Mr Williams was calling the police to make a complaint about the police. If he wished to complain about the police’ conduct there were avenues available to him at law. Calling the 111 service to invoke and request the involvement of an emergency service either fire, police or ambulance. It does not enable him to call for any reason. There has to be a genuine emergency or legitimate reason for calling which needs one or more of the emergency service … I reject the defence of Mr Williams and impute into the rule that the call being made to meet the criteria in sub-clause 3(a) has to be for objectively established, valid, legitimate and genuine reasons. To not adopt that interpretation of the rule could produce an absurd result which would be inconsistent with the purpose of the rule.
Proposed appeal
Predetermination
[22] Mr Williams asserts that when he explained his legal argument based on r 7.3A(3) the Judge said “we cannot have the public knowing that” or words to that effect. Mr Williams wishes to argue that this comment indicated pre-determination of the case.
[23] There is nothing in the transcript consistent with the statement that Mr Williams relies on. The Judge reserved his decision and in it he canvassed the evidence and the legal arguments in an appropriate way. There is simply no foundation to make the assertion that the Judge had pre-determined the matter.
Use prior to the 111 call?
[24]Mr Williams wishes to argue that the passage from the decision reproduced at
[20] above amounted to the Judge introducing his own testimony regarding the use of the mobile phone prior to the 111 call and that such inference was wrong, because the
8 R v Findlay CA410/05, 14 March 2006 at [19].
only phone calls before and after the one Constable Roley referred to, within 40 minutes of that call, were also to 111.
[25] I do not accept that either argument is tenable. Not only was the inference that the Judge drew available on the evidence, but I consider that the evidence actually showed beyond reasonable doubt that Mr Williams was using his mobile phone other than for a 111 or *555 call when Constable Roley first saw him.
[26] The correct analysis of the evidence must start with the fact that Constable Roley’s account was accepted in the courts below. That means that before Constable Roley began following Mr Williams, Mr Williams was already driving with his mobile phone in his right hand. On Mr Williams’ own account, he was no longer on the earlier 111 call that he had made in William Blofield Avenue. And he could not have been on the 111 call he made to complain that he was being followed along Sandringham Road. It follows that whatever Mr Williams was doing with the mobile phone, he was not, at that point, on a 111 call.
[27] The evidence does not go so far as to show that Mr Williams was either talking or texting on the phone. However, what Constable Roley observed brought the situation within the scope of r 7.3A(f), as being use of some other kind. Rule 7.3A is plainly intended to have a wide scope and, as well as specific types of use such as talking and texting, captures the “use of a mobile phone in a way other than a way described in any of the paragraphs (a) to (e)”.9 In my mobile phone in front of the steering wheel while he was driving constituted a use of the cellphone.
[28] So, Judge Burns was correct that he could infer that Mr Williams was using his mobile phone at the time Constable Roley saw him for a purpose other than a 111 call. The Judge fell into error by not recognising that what Constable Roley had described amounted to a use of the mobile phone. That was, in my view, the only finding available on the evidence. So, although the Judge did make an error, there was no miscarriage of justice.
9 See e.g. Tan v New Zealand Police [2013] NZHC 90 at [6] and [10] and Jefferies v New Zealand Police HC Wellington CRI-2010-485-112, 22 February 2011.
Did Judge Burns incorrectly introduce the requirement that 111 or *555 calls must relate to a life threatening emergency under r 7.3A(3) of the Land Transport (Road User) Rule 2004?
[29] Because of my earlier conclusion, it follows that the Judge did not need to consider r 7.3A(3). It is therefore unnecessary to consider whether his interpretation of the rule was correct.
Did the Police act improperly and maliciously?
[30] The appellant submits that Constable Roley maliciously followed him and attempted to extort money through fines from him. He also alleges that Constable Roley was in charge of an illegal detention of three minors, in which the appellant had intervened, and that was why the appellant made the emergency call.
[31] There is no merit in this submission because the case must proceed on the basis that Constable Roley’s evidence that he did not know it was Mr Williams in the car when he decided to follow was accepted.10
Conclusion
[32] None of the proposed grounds of appeal discloses a matter of general or public interest or a risk of a miscarriage of justice. Leave to appeal is refused.
P Courtney J
10 NOE at 21.
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