Woodhouse v Police HC Rotorua CRI-2010-463-071

[2011] NZHC 988

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-463-071

BETWEEN  SEEBY THOMAS FINNEGAN WOODHOUSE

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         8 April 2011

Counsel:         D Malcolm for Appellant

S T Simmers for Respondent

Judgment:      13 April 2011 at 2:30 PM

JUDGMENT OF POTTER J

on conviction appeal

In accordance with r 11.5 High Court Rules

I direct the Registrar to endorse this judgment with a delivery time of 2.30 p.m. on 13 April 2011.

Solicitors:           Crown Solicitor, P O Box 740, Rotorua

MDR Legal Ltd, P O Box 710, Taupo

WOODHOUSE V NEW ZEALAND POLICE HC ROT CRI-2010-463-071 13 April 2011

Introduction

[1]      Following a defended hearing in the District Court, Judge Weir in a reserved judgment1 convicted the appellant on one charge under s 35(1)(b) of the Land Transport Act 1998 (“the Act”) of driving a motor vehicle at a speed which having regard to all the circumstances of the case might have been dangerous to the public. He was fined $1,500 with Court costs and disqualified from driving for a period of eight months.   Mr Woodhouse filed an immediate appeal against conviction.   He does not appeal the sentence.

Factual background

[2]      On 26 December 2009 at 2.48 p.m. the appellant was driving his Maserati vehicle registration number AVARIS south on State Highway 1, Taupo.   The appellant’s vehicle was clocked on a speed camera at 174 kilometres per hour which was 74 kilometres per hour over the posted speed limit of 100 kilometres per hour.

[3]      The  speed  camera  upon  which  the  speed  of  the  appellant’s  vehicle  was recorded was operated by Mr Raymond Potter, a non-sworn speed camera operator qualified to operate the Redflex camera on which the speed of the appellant’s vehicle was clocked.

[4]      Mr Potter immediately contacted Police Constable Foden who was positioned further down the road and advised her of a vehicle travelling south towards her at very high speed.  Mr Potter gave details to Constable Foden of the description and registration number of the vehicle in question.   Having received that information, Constable Foden intercepted the appellant’s vehicle at approximately 3 p.m. Constable Foden spoke with the appellant who was the driver of the vehicle and advised him that he had been clocked at 174 kilometres per hour and asked him for his licence.

[5]      The appellant offered no comment.  He did not deny driving at the speed at which he was clocked, namely 174 kilometres per hour.

[6]      The appellant entered a not guilty plea to the charge.

Issues on appeal

[7]      In his judgment Judge Weir concluded:2

I have no difficulty in concluding from the evidence that to travel at such a speed on that area of road in all the circumstances may have been dangerous to the public. ... nor was it suggested by the defence that travelling at that speed may not have been dangerous to the public.

[8]      That finding is not challenged on appeal.

[9]      The sole issue on appeal was whether there was evidence upon which the

Judge could rely linking the Certificate of Accuracy to the speed camera evidence. [10]      The appellant’s written submissions identified two other issues:

(a)      Whether the Redflex camera equipment was a “notorious scientific instrument” such that judicial notice could be taken of its reliability and accuracy.  This was not a point that appears to have been raised in the District Court.

(b)Whether the Judge erred in allowing the prosecution to recall the witness Mr Raymond Potter after the prosecution had closed its case and the defence had commenced oral submissions.

[11]     I shall refer to these sub-issues later in this judgment.

[12]     Evidence  was  given  in  the  District  Court  by  Mr  Raymond  Potter  and Constable Patricia Foden.  The defence elected not to call evidence.  The Court then adjourned.

[13]    Mr Malcolm advised that he had commenced oral submissions and had submitted that the evidence did not establish a link between the Redflex camera equipment and the Certificate of Accuracy produced in evidence by Mr Potter.  The notes of evidence record that the Judge confirmed with Mr Malcolm that that was his contention.  The Judge referred to his handwritten notes that Mr Potter had produced a certificate about the accuracy of the advice, noted that Mr Malcolm had not taken issue with the witness on the point, and directed that Mr Potter be recalled to clarify the position.  When Mr Potter was recalled he gave further evidence and produced as an exhibit a deployment sheet relating to the Redflex camera equipment or device. Mr Potter was cross-examined again by Mr Malcolm and re-examined by the prosecuting sergeant.

[14]     Mr Malcolm then requested time to file further written submissions and a month was allowed for this to be done.

District Court judgment

[15]     Judge Weir  identified  the  issue  in  the  case  as  being  whether  or  not  the prosecution has proved the testing or accuracy of the equipment relied upon in the particular instance.   He summarised the defence submission, that there was no evidence led by the prosecution that the pieces of equipment noted in the Certificate of Accuracy were any or all of the equipment used in this case.  He noted the defence submission that Mr Potter did not identify the camera or equipment used and did not introduce   the   deployment   register   document   outlining   the   deployment   and calibration of the equipment.

[4]       Mr Potter confirmed that he was a non-sworn speed camera operator and qualified to work on the new Redflex camera on 5 May 2009 stationed out of Taupo.  He had in fact been a speed camera operator since 16 December 1999.  He said that on 26 December 2009 at 2.48 pm, he was operating the speed camera on State Highway 1 between Oruanui  road  and  Tutukau  Road.    He  said  that  while  he  was operating the camera, a car went past at very high speed, which set the camera off.  He looked at the screen on the camera and saw that it was a Maserati vehicle and the speed was indicated at 174 kilometres per hour.  He referred to the photograph taken and noted that the time as 14:48 and 14 seconds and that according to the photo record, the registration of the vehicle was AVARIS.  He produced the photograph and confirmed that the photograph related back to the disc number, which was the disc used in the camera on the day.  He said that as it was 26 December, traffic was quite heavy in the area and that in the two hours he was at the particular site in question,

1400 vehicles went past which was quite heavy.

[5]       As a result of this, he immediately contacted Constable Foden on the police radio and advised her of the vehicle travelling at very high speed.   He confirmed the certificate of accuracy in relation to the equipment  as  a  result  of  the  following  question  put  by  the prosecutor:

Q.       Now just in relation to the device, the reflex device that you were using, do you have a certificate of accuracy?

A.       I have a certificate of accuracy here and here’s a copy also, and that’s dated on the 1st of October 2009.

[6]      The certificate of accuracy was produced.

[17]     The Judge noted that Mr Potter was not cross-examined by counsel for the defence.

[18]     He next summarised the evidence of Constable Foden.  She was on patrol on State Highway 1 in Wairakei on Boxing Day.  She received a telephone call from Mr Potter about the Maserati motor vehicle registration AVARIS being clocked at 174 kilometres per hour. As a result of that she intercepted the vehicle.  She spoke to the driver of the vehicle and advised him that he had been clocked at 174 kilometres per hour and asked him for his licence.   He made no response and did not dispute anything she said.  She also referred to her familiarity with this stretch of road and

the number of fatal crashes that had occurred on it.

3      At [4], [5] and [6].

[19]     The Judge reached the conclusion from the evidence that to travel at such a speed on that area of the road in all the circumstances may have been dangerous to the public.

[20]     He  noted  that  at  the  conclusion  of  the  prosecution  case  counsel  for  Mr

Woodhouse submitted there was no case to answer.

[21]     He said that having now seen a typed copy of the transcript of evidence (which was not available to him at the hearing when he directed Mr Potter be recalled) that submission “falls on fallow ground”.  He said:4

The fact of the matter is that Mr Potter was asked to produce a certificate of accuracy of the (emphasis added) Reflex device that he was using, and he produced that certificate of accuracy.  No issue was taken with the certificate of accuracy.

[22]     On that aspect he cited s 146 of the Act:

(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 1977], the production of a certificate (or a document purporting to be a copy of the certificate) purporting to be signed by a sworn or non-sworn member of the Police 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.

(Emphasis added by the Judge)

[23]     The Judge noted again that Mr Potter’s evidence was unchallenged and said: “...  his  evidence  clearly  indicates  that  he  produced  a  certificate  of  accuracy  in relation to the device that he was using”.5

[24]     Judge Weir then went on to explain that at the time of the hearing because it had not been possible to confirm from the written transcript exactly what Mr Potter had said in his evidence, he allowed the prosecution to recall Mr Potter to clarify the

position.  He noted that when recalled Mr Potter confirmed in some detail that the device he used on that day was the same device identified in the certificate of accuracy, in support of which he produced the relevant page of the deployment register confirming that the equipment which he was using was the same as the equipment described in the certificate of accuracy.  He also noted that the defence had been provided with disclosure of the certificate of accuracy and the deployment

register some time prior to the commencement of the hearing.  He said:6

That evidence further clarified the unchallenged evidence of Mr Potter prior to his recall.

[25]     The Judge then referred to s 99 of the Evidence Act noting that because of the decision he had reached it was unnecessary to rule on the direction he gave in reliance on s 99, that Mr Potter be recalled to further clarify the position in relation to the equipment used.   He noted, however, that s 99 gives the Judge in any proceeding the discretion to recall a witness who has given evidence if the Judge considers that it is in the interests of justice to do so.   He said that “interests of justice” would appear on the authorities to be a pragmatic test.  He said that if there had been any issue with regard to the identification of the device, counsel for the defence having elected not to cross-examine Mr Potter, in his view it would have been necessary in the interests of justice to have all the evidence before the Court including further clarification by Mr Potter.

[26]     He accordingly convicted the appellant.

Appellant’s submissions

[27]     The appellant submits that on the evidence there was real doubt that the certificate of accuracy related to the Redflex camera device used to measure the speed and record the identity of the appellant on the day in question.  Mr Malcolm submitted there was no, or no sufficient evidential link between the certificate of accuracy produced in evidence by Mr Potter and the camera device.  He submitted that Mr Potter’s evidence set out at [5] of the judgment and relied on by the Judge

was  “well  short” of sufficiently identifying the  camera equipment  to  which  the

certificate of accuracy related.

[28]     He  submitted  that  because  the  evidence  was  deficient  there  was  no requirement for him to cross-examine Mr Potter.

[29]     He further submitted that while the additional evidence given by Mr Potter following his recall at the direction of the Judge including the production of the relevant page from the deployment register provided the requisite identification, this evidence was inadmissible because the prosecution case had closed and the Judge was not entitled to exercise his discretion under s 99 to recall the witness to adduce further evidence to remedy deficiencies in the prosecution case.

[30]     In  support  of  his  submissions  Mr  Malcolm  referred  to  the  three  limbs required as a matter of proof and fact as identified in Parker v Police7

(1)       The device is accurate and capable of reliably measuring the speed of an offender’s vehicle.  Such accuracy can be established by the production of a Certificate of Accuracy together with other evidence of an Officer which is sufficient to satisfy the Court that the unit was accurate.

(2)       The operating officer was qualified in the testing and use of the device by training and expertise.

(3)       The apparatus, and testing of it, has been accurately used and carried out by a qualified Officer so that the Court might feel satisfied that the reading produced by the unit could be accepted at face value.

[31]     Mr Malcolm submitted that while there was no question about the second requirement, the first  and third limbs of the test could not be satisfied without reliance on the more detailed evidence given by Mr Potter following his recall.  He referred to the statement of Keane J in Jameson v New Zealand Police:8

... that for certificates to be conclusive there must be a firm link in fact or law to the devices to which they relate ...

He  submitted  that  “Mr  Potter  made  no  link  between  the  devices  used  and  the

certificate produced”.

7      Parker v Police HC Palmerston North AP15/97, 30 May 1997 at 4.

8      Jameson v New Zealand Police HC Auckland CRI-2006-404-338, 4 April 2007 at [45].

[32]     Mr Malcolm suggested that the evidence in this case as given by Mr Potter, can be distinguished from that in the cases of Brown v New Zealand Police9  and R v Munro.10   He submitted it was important in those cases that the evidence given by the constables  in  question  about  obtaining  the  certificates  of  a  Seres  breath  testing device used, was of themselves obtaining the certificates, from which it could be inferred that in doing so they had identified the device.

[33]     In Brown the constable said:

On the 29th day of October 2003 I requested a certificate of compliance for the Series (sic) breath testing device from the Institute of Science and Research or ESR.   I now produce that Certificate of Compliance as an exhibit.

That was accepted as sufficient evidence linking the certificate to the device.

[34]     In Munro the critical evidence from the constable was:

I obtained a Certificate of Compliance for the evidential breath test machine serial no 3220.

Again, that was held to be adequate evidence of the requisite link, the Court emphasising the use of the definite article.

Discussion

[35]     In this case Mr Potter produced the certificate of accuracy, there being no challenge  to  the  accuracy  of  the  certificate,  pursuant  to  s  146  of  the Act  it  is sufficient proof that the equipment or device referred to in it, was tested on the date specified (1 October 2009) and was accurate at the date of the offence.   The equipment specified in the certificate of accuracy is Redflexradarcam NZTMR serial no 154, computer model 132, camera model 190.

[36]     As a matter of fact and evidence the Judge was satisfied there was sufficient evidence to establish the necessary link between the certificate of accuracy and the

Redflex camera equipment used on the basis of the question and answer:

9      Brown v New Zealand Police HC Hamilton CRI-419-87-04, 22 October 2004.

10     R v Munro CA432/05, 23 February 2006 (CA)

Q.       Now just in relation to the device, the reflex device that you were using, do you have a certificate of accuracy?

A.       I have a certificate of accuracy here and here’s a copy also, and that’s dated on the 1st of October 2009.

He said the evidence clearly indicates that he produced the certificate of accuracy in relation to the device that he was using.11

[37]     Whether there is sufficient evidence to prove a particular issue is a question of law.  I consider that finding was clearly open to the Judge.

[38]     To claim, as the appellant seeks to do, that there was no evidence or inference linking the equipment used with the certificate, requires the answer given by the witness to be considered in isolation from the question.   The question put to Mr Potter related to the Redflex device he was using and whether he had a certificate of accuracy for the Redflex device he was using.   His reply was that he did have a certificate of accuracy with him and also a copy and it was dated 1 October 2009. He then produced the certificate of accuracy.

[39]     The answer was clearly in reply to the question and related to the certificate of accuracy for the Redflex device he was using that day.

[40]     It  is  therefore  unnecessary to  consider  whether  the  Redflex  camera  is  a “notorious scientific instrument” the accuracy of which judicial notice can be taken. In this case the evidence established the accuracy of the device in question through the certificate of accuracy, the presumption in s 146 of the Act and the evidence of Mr Potter.

[41]     If the appellant wanted to put in issue whether the certificate of accuracy produced by Mr Potter related to the Redflex camera device used, then he needed to raise this issue with the witness in cross-examination.  Mr Malcolm chose to take a technical point, but in doing so he left unchallenged the evidence of Mr Potter which the Judge found to satisfy beyond reasonable doubt the requirement for a link to be

established between the certificate of accuracy and the camera device used.

11 At [16].

[42]     Likewise it is unnecessary to consider whether the Judge acted correctly in directing the recall of Mr Potter.  Ultimately the Judge did not rely on the evidence given by the witness following his being recalled, so it becomes irrelevant whether the evidence following recall was admissible or not.  I simply observe that under s

99 the Judge has a broad discretion to recall a witness if the Judge considers it is in the interests of justice to do so.   That must be a pragmatic decision which will depend on the circumstances of the particular case.

Result

[43]     The appeal is dismissed.   The period of eight months disqualification from driving takes effect from 5 p.m. on the working day following the date of issue of this judgment (for example: 5 p.m. on Thursday 14 April 2011, assuming the date of issue of this judgment is Wednesday 13 April 2011).