Wilson v Police
[2022] NZHC 1458
•22 June 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2022-419-20
[2022] NZHC 1458
BETWEEN WARREN WILSON
Applicant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 June 2022 Appearances:
Applicant in person
B Harris for Respondent
Judgment:
22 June 2022
JUDGMENT OF HARLAND J
[on application for leave to appeal and appeal]
This judgment was delivered by me on 22 June 2022 at 12 noon.
Registrar/Deputy Registrar Date……………
Solicitors:
Hamilton Legal, Hamilton
WILSON v NEW ZEALAND POLICE [2022] NZHC 1458 [22 June 2022]
Introduction
[1] The applicant, Mr Warren Wilson, has applied for leave to appeal a decision of Judge S Clark on 28 February 2022. Judge Clark’s decision was made in relation to an appeal by Mr Wilson against the decision of Community Magistrate Bourke. Mr Harris, for the respondent, agrees that leave should be granted, the appeal allowed, and the matter remitted back to the District Court. Although the outcome has been agreed (and appropriately so), because of the background I set out below, I consider it necessary to outline my reasons for granting leave and allowing the appeal more fully than might otherwise be required.
Background
[2] On 12 November 2020, Mr Wilson was driving his Yamaha motorcycle north of State Highway 1 Karapiro, just to the south of Cambridge in the Waikato. The speed limit in this area is 100 kilometres per hour, but he is alleged to have driven past a Police radar at 131 kilometres per hour. When spoken to by the Police, he is alleged to have stated that his speedo cable was broken.
[3] The charge concerned is an infringement offence. Mr Wilson was issued with an infringement notice. He takes issue with the accuracy of the device used to record the speed of his vehicle.
[4] After receiving the infringement notice, Mr Wilson advised the Police that he wished to defend the charge. It should therefore have been set down for a defended hearing in the Hamilton District Court before a Community Magistrate1, however, this did not occur. Instead, the fine included in the infringement notice was treated as an unpaid fine.
[5] Mr Wilson then successfully applied for the proceeding to be reinstated in the District Court.
1 Criminal Procedure Act 2011, s 356(1)(d).
[6] Section 146 of the Land Transport Act 1998 (LTA) sets out the process by which the evidence of a speed measuring device is provided to the court:
146 Evidence of testing and accuracy of speed-measuring devices, etc
(1)In proceedings for a speeding offence against any bylaws or enactment, any other offence against this Act, or an offence against the Road User Charges Act 2012 (or any regulations made under that Act), the production of a certificate (or a document purporting to be a copy of the certificate) purporting to be signed by a constable or Police employee who is not a constable authorised for the purpose by the Commissioner or by a person authorised for the purpose by the Agency, as to the testing and accuracy of any equipment or device to which this section applies that is referred to in the certificate, is, in the absence of proof to the contrary, sufficient proof that the equipment or device referred to was tested on the date specified in the certificate and was accurate on the date of the alleged offence.
(2)Every document purporting to be a copy of a certificate issued under this section is, in the absence of proof to the contrary, to be presumed to be a true copy.
(3)Every certificate issued under this section is, in the absence of proof to the contrary, to be presumed to have been signed by a person duly authorised to sign it; and it is not necessary for any such certificate to show on its face that the person signing it was so authorised.
(4)This section applies to distance-measuring devices, speed-measuring devices, approved vehicle surveillance equipment, and tuning forks used to check such devices or equipment.
(5)The fact that any equipment or device to which this section applies was tested before or after the date of the alleged offence does not of itself affect the validity of any certificate given under this section in relation to the testing of that equipment or device. However, any testing must not be more than 12 months before the date of the alleged offence.
(6)In any proceedings where a certificate has been produced under this section, the court may, on application made not less than 14 days before the hearing of the charge concerned, and if satisfied that there is good cause to do so, set aside the certificate and require the accuracy of the equipment or device to be established by evidence other than the certificate.
[7] On 24 August 2021, Mr Wilson filed and served an application under s 146(6) of the LTA, seeking to set aside the certificate in relation to the testing and accuracy of the device used to record the speed at which he is said to have been travelling. In addition, on 9 December 2021, Mr Wilson applied under s 30 of the Criminal
Disclosure Act 2008 for a copy of the information the Police had about the accuracy test in relation to this device.
[8] Mr Wilson’s applications were placed in front of Community Magistrate Bourke in chambers. He issued a minute recording the following decision:
This matter was referred to me today in chambers. I have read Mr Wilson’s application.
1.Application to set aside certificates of accuracy is declined. He does not raise any novel issues that have not already been argued in Court before. Even on his own argument and offence of exceeding the speed limit could be made out on papers even with his own worse case (accuracy/uncertainty) argument.
2.The disclosure request is declined. The devices have been held by High Courts to be “notoriously reliable: and the certificates are all that Court requires.”
Please advise Mr Wilson of my above decision and advise him that he will not be able to raise them at the hearing.
[9] The date of this decision is not clear from the file; however, the documentation filed by Mr Wilson reveals that he received an email advising him of it on 1 February 2022.
[10] Mr Wilson appealed the Community Magistrate’s decision to the District Court.
[11] The appeal was placed before His Honour Judge S Clark in chambers. He issued the following minute on 28 February 2022:
1.The decision of CM Bourke appears to have been made without hearing from Mr Wilson or the Police. Mr Wilson should have been given the opportunity to at least orally raise his arguments before the Community Magistrate.
2.If the Police agree then the section 146(6) [sic] Land Transport Act and disclosure issue should go back before a Community Magistrate to decide, preferably before a different Community Magistrate.
3.If the Police do not agree the application for Leave/Appeal will need to be set down before any District Court Judge.
[12]It appears that the Registry then advised:
As instructed by Judge S Clark under point 3, I have consulted the Police Prosecutor and his response is below.
“I would tend to agree with Judge S Clark and have the application re-heard in the CM jurisdiction in order for parties to present their case on the application under s 146(6).”
Nigel Wolland LLB/BCom
Subsequently we can offer a Pre-Trial Hearing on Tuesday 19 April 2022, at Hamilton District Court, commencing at 10am before Community Magistrate Mascelle. Can you please confirm by return if you wish to proceed with this Pre-Trial.
[13] It is not clear to me if the last paragraph referred to above was sent to Mr Wilson and if it was, when it was sent. Mr Wilson says did not receive a copy of the Judge’s the actual decision until 28 March 2022, although he accepts he may have been notified of it earlier, possibly on 2 March 2022.2 However, Mr Wilson was not consulted about the hearing date. He says he was advised of the date on 8 April 2022, four working days before the scheduled hearing.
[14]At this point, Mr Wilson appealed Judge Clark’s decision to this Court.
Legal principles
[15]Section 223 of the Criminal Procedure Act 2011 provides:
223 Right of appeal against determination of first appeal court
(1)The defendant or the prosecutor may, with the leave of the second appeal court, appeal to that court against the determination of an appeal under section 215 or 217.
(2)The defendant may, with the leave of the second appeal court, appeal to that court against the determination of an appeal under section 218.
(3)The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—
(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.
2 Mr Wilson’s application for leave to appeal to this Court refers to the date as “3/2/22”, however, this cannot be correct as the Judge’s decision was not made until 28 February 2022.
[16] The threshold for a “matter of general importance” may be met where the proposed appeal gives rise to an issue of general principle or of general importance in the administration of the criminal law by the courts.3 In R v Kuru, the Court of Appeal held that this threshold is met where the proposed appeal raises an important question of law that has broad application beyond the circumstances of the particular case.4 There is no prescriptive approach to determining whether a “miscarriage of justice” may have occurred or may occur unless the appeal is heard.5 This limb may be satisfied by an argument reasonably available that the court below is in error, although not every error will give rise to a miscarriage.6
[17] The requirement that the court is “satisfied” invites the court to evaluate all relevant matters and reach a judgment as to whether or not it is satisfied.7
[18] There is an overlap between the factors relevant to granting leave to appeal, and allowing the appeal. Both involve a consideration of whether there has been a miscarriage of justice.8
Discussion
[19] Mr Wilson’s appeal to the District Court against the Community Magistrate’s decision is one that engages matters of substance and procedure. He challenges the fact he was not given an opportunity to be heard in relation to his application under s 146(6) of the LTA, and he also challenges the substance of that decision.
[20] In relation to his appeal to the District Court, Mr Wilson was entitled to be heard about any administrative decisions which might impact on his appeal. He was not given an opportunity to be heard in relation to the process adopted by the Judge. Neither was Mr Wilson given an opportunity to challenge the substantive findings of the Community Magistrate in relation to his s 146(6) application and disclosure on appeal, given the process adopted.
3 Simon France (ed) Adams on Criminal Law – Criminal Procedure (online looseleaf ed, Thomson Reuters) at [CPA223.03].
4 See R v Kuru [2015] NZCA 414 at [7].
5 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [37].
6 At [37]–[38]. Approach affirmed in Robertson v R [2015] NZCA 7 at [53]–[55].
7 At [42]. See D’Esposito v Ministry for Primary Industries [2019] NZCA 518 at [17]–[22].
8 Khan v New Zealand Police [2018] NZHC 310.
[21] Any findings made by a District Court Judge on appeal in relation to these applications would be binding on the Community Magistrate tasked with subsequently hearing the charge. Given the nature of the argument advanced by Mr Wilson, it is likely these matters are more appropriately determined by a District Court Judge, but regardless, Mr Wilson is entitled to have his appeal heard in the District Court if that is what he wishes to do.
[22] It is difficult for me to assess whether Mr Wilson’s application under s 146(6) involves a matter of general or public importance, however, Mr Harris accepted that the argument was novel and therefore, I infer, arguable. However, I am satisfied that a miscarriage of justice has occurred because Mr Wilson was not given an opportunity to advance the substance of his appeal and the process that should be followed in relation to it.
[23]For these reasons, leave to appeal is granted, as is the appeal.
Result
[24] The application for leave to appeal and the appeal having been granted, the matter is remitted back to the District Court for the hearing of the appeal by Mr Wilson against the decision of the Community Magistrate.
Harland J
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