Zhao v Police
[2012] NZCA 148
•24 April 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA728/2011 [2012] NZCA 148 |
| BETWEEN YUANWEN ZHAO |
| AND NEW ZEALAND POLICE |
| Hearing: 3 April 2012 |
| Court: Ellen France, Harrison and White JJ |
| Counsel: Applicant in person |
| Judgment: 24 April 2012 at 10 a.m. |
JUDGMENT OF THE COURT
The application for special leave to appeal is dismissed.
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REASONS OF THE COURT
(Given by Ellen France J)
Introduction
On 10 May 2010 at around 11 pm, Constable Catherine Weavers was on duty and was travelling in a marked patrol car in Auckland. She observed the applicant, Yuanwen Zhao, travel past her. Constable Weavers was following the applicant’s car when it went past a sign indicating a temporary 70 km per hour area. She then conducted a check on the speed of his car by means of a “pace check”.
The pace check involved following the vehicle in front, while maintaining a fixed distance of 40 metres between the two vehicles. The Constable said she was able to check the speed of the applicant’s car by reference to the speedometer on her car. Throughout the speed check Constable Weavers said the applicant’s car was travelling at no less than 97 km per hour.
The applicant was charged with driving a vehicle in excess of the applicable temporary speed limit of 70 km per hour.[1] The applicant was found guilty after a defended hearing before two Justices of the Peace.[2] He appealed unsuccessfully to the High Court and, subsequently, the High Court declined leave to appeal to this Court.[3] The applicant now seeks special leave to appeal under s 144(3) of the Summary Proceedings Act 1957.[4]
Basis of proposed appeal
[1]Land Transport (Road User) Rule 2004, r 51; Land Transport Act 1998, s 40(1); and Land Transport (Offences and Penalties) Regulations 1999, reg 3(1).
[2] New Zealand Police v Zhao DC Auckland CRI-2010-004-13538, 16 November 2010.
[3]Zhao v Police HC Auckland CRI-2010-404-493, 28 March 2011 and Zhao v New Zealand Police HC Auckland CRI-2010-404-493, 13 October 2011.
[4]The provisions of the Summary Proceedings Act 1957 apply by virtue of s 21(8)(d)(i) of that Act.
The applicant wants to argue the following points:
(1)Are traffic officers allowed to use a method to determine a vehicle’s speed which is not defined in the Police policy for the purpose of s 30(1)(a) of the Policing Act 2008? If the answer is yes, will traffic officers be so empowered that they can abuse that power?
(2)Is the temporary speed limit enforceable by law when: the approved traffic management plan failed to follow Section 5.2(2)(b) of Land Transport Rule Setting of Speed Limits 2003; the approved temporary speed limit is only applied on the southbound, where the alleged offence was on the northbound?
(3)Whether there was a miscarriage of justice by reason of either one, or the cumulative effect of all, of the following grounds:
·The evidence fell short of the requisite standard of proof beyond reasonable doubt on the issue of speed;
·The Justices of the Peace failed to rule on the admissibility of the evidence called by the Police;
· Withholding of evidence by Police.
Discussion
Special leave to appeal under s 144(3) can only be granted if there is a question of law that is of general or public importance or which, for some other reason, ought to be submitted to this Court. This Court has emphasised the importance of these requirements and the reasons for them.[5]
[5] R v Slater [1997] 1 NZLR 211 (CA).
Under the proposed first question, the applicant seeks to challenge the use of the pace check to establish the speed at which his vehicle was travelling. The applicant also wants to argue that the pace check was not properly conducted.
The challenge to the method of calculation is based on the need for compliance with s 30(1)(a) of the Policing Act 2008. The section requires every police employee to “obey and be guided by” general instructions. The document relied on by the applicant to show non-compliance with those instructions is the “New Zealand Police Speed Enforcement Policy”.
It is not clear whether this policy forms part of the police general instructions. (The argument on this point has evolved from that in the High Court.) That point is not critical because the excerpt from the policy before us simply refers to various different types of speed enforcement equipment that may be used. Police vehicle speedometers are expressly included among the speed enforcement equipment and are required to be regularly calibrated under s 146 of the Land Transport Act 1998. That suggests a pace check using a police vehicle speedometer is a method of speed detection contemplated by the Land Transport regime.[6] We note that the Constable produced a certificate of accuracy for her speedometer in the hearing before the Justices of the Peace. In any event, the method of calculating the speed is not determinative here because the focus at trial was on whether it had been proved beyond reasonable doubt that the appellant exceeded the limit. There is nothing in this part of the applicant’s proposed appeal giving rise to a question of law of the requisite importance.
[6]Pace checking was treated as a satisfactory and acceptable means of ascertaining speed in Lupi v Police HC Auckland CRI-2006-404-381, 12 February 2007 and in Middleton v Police HC Auckland CRI-2011-404-31, 10 October 2011. Becroft and Hall’s Transport Law (online looseleaf ed LexisNexis) at [LTA146.12] notes that speed may be determined by the police officer’s good judgement.
The second aspect of the proposed challenge relies on the Constable’s answer to a question put to her by Mr Zhao in cross-examination. She said that when she saw the applicant pass the 70 km per hour area she could not recall “exactly how far” she was behind the applicant. Nothing turns on that because the officer confirmed that when she conducted the pace check she was 40 metres behind the applicant.
We turn then to the second question relating to the enforceability of the temporary speed limit. Peters J reviewed the evidence as to the authorisation for the 70 km per hour limit. The Judge concluded that there was power to set the temporary speed limit. On appeal, the applicant seeks to challenge the finding he was within the 70 km per hour area. That is a question of fact which was the subject of evidence at trial and has been canvassed before the Justices of the Peace and in the High Court. Peters J concluded there was no error in finding this aspect of the offence proved beyond reasonable doubt. The proposed challenge to this conclusion does not raise any question of law.
The third question is also largely directed to matters of proof. The Judge found there was “ample” evidence the applicant’s speed exceeded 70 km per hour.[7] Ultimately, the issue at trial and in the High Court was whether the evidence was sufficient to prove the speeding offence beyond reasonable doubt. Both the Justices of the Peace and Peters J concluded that it was. There was a sufficient evidential basis for that conclusion. Peters J also addressed the applicant’s complaint of non-disclosure of a document produced by the prosecution at the hearing by the Justices of the Peace. The Judge found that if there was any non-disclosure, it could not have had any effect on the outcome. In dismissing the application for leave on this point, Peters J noted that it appeared that prior to the hearing the applicant had obtained a copy of the relevant document himself. He had been asked by the Justices of the Peace if he wanted the document excluded and said he did not. No issue of law arises.
[7] At [21].
We appreciate that Mr Zhao sees the case as raising matters of principle. We take a different view. None of the points he wants to argue raises a question of law that meets the test under s 144(3).
Result
For these reasons, the application for special leave to appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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