Wilson v Police - [2022] NZHC 1458

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wilson v Police

Details

AGLC: Wilson v Police [2022] NZHC 1458
Case: [2022] NZHC 1458
Decision Date: 22 June 2022

CaseChat Overview and Summary

The applicant, Mr Warren Wilson, 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. The respondent, the New Zealand Police, agrees that leave should be granted, the appeal allowed, and the matter remitted back to the District Court. The applicant was driving his motorcycle at an alleged speed of 131 kilometres per hour in a 100 kilometres per hour zone. He was issued with an infringement notice and subsequently defended the charge. The issue concerns the accuracy of the speed measuring device used to record the alleged offence. Mr Wilson challenged the accuracy of the device and requested a hearing before the District Court, which was not granted. The legal issues before the court involved whether Mr Wilson was entitled to be heard on his application under s 146(6) of the Land Transport Act 1998 and whether there had been a miscarriage of justice due to the process adopted by the Judge. The court found that Mr Wilson was entitled to be heard on the application and that a miscarriage of justice had occurred because he was not given an opportunity to advance the substance of his appeal and the process that should be followed in relation to it. The appeal was allowed, and the matter was remitted back to the District Court for the hearing of the appeal by Mr Wilson against the decision of the Community Magistrate.

The court granted leave to appeal and allowed the appeal, and the matter was remitted back to the District Court for the hearing of the appeal by Mr Wilson against the decision of the Community Magistrate.

Orders