R v Haskett CA261/05 [2005] NZCA 379 (29 September 2005)

Last Updated: 21 January 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA261/05

THE QUEEN

v

ALISTAIR JAMES HASKETT

Hearing: 20 September 2005

Court: Hammond, Chambers and Robertson JJ Counsel: Applicant in Person

A M Powell for Crown

Judgment: 29 September 2005

_{JUDGMENT OF THE COURT}

_{The application for special leave is allowed.}

REASONS

_{(Given by Hammond J)}

Introduction

[1] We have before us an application for special leave to appeal to this Court under s 144(3) of the Summary Proceedings Act 1957.

R V HASKETT CA CA261/05 29 September 2005

[2] After a defended hearing before two Justices of the Peace, Mr Haskett was convicted on 17 August 2004 of driving in excess of the speed limit. He had been detected by speed cameras on the northwestern motorway, Auckland, travelling at

111 kilometres per hour.

[3] Mr Haskett appealed to the High Court. On 7 June 2005 Ellen France J

dismissed his appeal against conviction and sentence.

[4] Mr Haskett then sought leave to appeal to this Court under the provisions of s 144(1) of the Summary Proceedings Act 1957. Keane J declined that application. Mr Haskett now seeks special leave for a second appeal.

[5] The parties accept that whether such leave should be granted falls to be determined on the basis set out in R v Slater [1997] 1 NZLR 211.

The questions raised

[6] The questions of law sought to be advanced to this Court are as follows:

1. Is a computer one part of “approved vehicle surveillance equipment”; and, if a certificate of accuracy fails to refer to all parts of such equipment, does that certificate lack the quality intended in s 146(1) and (4) LTA, thereby being irrelevant or inadmissible hearsay evidence?

2. What is the common law presumption of accuracy on mechanical instruments and has the informant satisfied their burden in establishing that presumption?

3. Does the failure to make an application under s 146(6) LTA prevent “evidence [now ‘proof’] to the contrary” in terms of s 146(1) LTA or a challenge to the admissibility of a certificate of accuracy; and, if not, were either of these made out?

4. Was the Certificate of Proficiency inadmissible or improperly relied on, and did such lead or contribute to an unfair hearing?

5. Was recital of the contents of the Deployment Sheet irrelevant or inadmissible hearsay evidence, in whole or part; and, did such lead or contribute to an unfair hearing?

6. Is the vehicle surveillance equipment outside that “approved” in the

Notice because of the addition of a laser sight?

[7] At the hearing before us, Mr Haskett responsibly accepted that questions

4 and 5 are no more than challenges to decisions made at trial to admit evidence in the case against him and they only have import in the context of the present case. He abandoned the application as to those two questions, and we say no more about them.

[8] The Crown responsibly accepts that, in general terms, the remaining questions sought to be raised do, or are capable of raising, questions of law. However the Crown contends that - as was held in the High Court on the leave application - for various reasons those questions are not appropriate for determination in this Court, in the particular circumstances of this case.

The heart of the case

[9] Much of what was put before the Court is highly technical. It is not necessary to traverse that material for the purpose of the leave application.

[10] The essence of Mr Haskett’s concerns are as follows:

• He maintains that the kind of vehicle surveillance equipment utilised to secure his conviction is no longer within the ministerial approval in the Transport (Approved Vehicle Surveillance Equipment) Notice 1994.

• He further says the prosecution failed to establish that the particular vehicle surveillance equipment was accurate, and no statutory or common law presumption applies.

• Alternatively, Mr Haskett says that the statutory presumption of accuracy was rebutted.

[11] With regard to the first point, Ellen France J noted that “approved vehicle surveillance equipment” is defined in s 2(1) of the Land Transport Act 1998 (the “LTA”) as “vehicle surveillance equipment of a kind approved by the Minister of

Police, and notified in the Gazette”. The Transport (Approved Vehicle Surveillance) Notice 1994 (notified in the Gazette on 15 September 1994) provides that:

“[t]he AutoPatrol PR-100NZ radar system together with a compatible computer and an AutoPatrol Model TC-1000 Trafficam camera unit, used in conjunction with any of the following, namely,-

(a) An AutoPatrol TC-1000F flash unit (with or without a filter);

(b) A Trafficam TC-1000, TC-1000M, or TC-1000MNZ, long roll film magazine;

(c) A tripod mounting system; (d) A mobile mounting system;

(e) A photographic filter or filters;

(f) A video camera and cassette recorder system –

Is hereby approved as a kind of vehicle surveillance equipment for the purposes of the Land Transport Act 1998.

[12] The appellant argued that the ordinary meaning of the phrase “a kind of vehicle surveillance equipment” excluded the equipment used in detecting his speed in this case, as the police modified the equipment by adding a laser sight to establish cosine angle. The appellant also submitted that the modification raises doubts as to the accuracy of the results obtained by the device. The police agreed that the device did include a laser sight but argued that this was part of the device approved by the Minister. The police provided information suggesting the addition of the laser sight pre-dated the Ministerial approval and that this addition was noted as part of the report going to the Minister in the approval process. Mr Haskett countered that was irrelevant when the laser sight was added to the equipment, because the approval notice does not refer to a laser sight.

[13] It is difficult to follow the argument in this case without having the Certificate of Accuracy. For that reason, a copy of Certificate of Accuracy No 90586 is attached to this judgment.

[14] Ellen France J took the view that “[t]he approval is for the identified equipment, i.e. the “Autopatrol PR-100NZ radar system”. If that “system” at the

time of approval included the laser sight, then prima facie the approval was for the system including the laser sight. Her Honour was of the view that even if the laser sight was a subsequent addition, that does not necessarily mean that the certificate is inapplicable.

[15] Her Honour was further concerned that whilst Mr Haskett was concerned as to the possible effect of the laser sight on the accuracy of the system “there is no evidence on the point. That demonstrates, of course, one of the reasons for the provision in s 146(6) of the Land Transport Act that notice be given in situations where there is a challenge to the accuracy of the equipment which may otherwise be satisfied by the certificate”.

[16] Quite apart from the issues surrounding the laser sight, Mr Haskett argued that the Certificate of Accuracy made no reference to a computer. He argued that this computer must be part of the particular “approved vehicle surveillance equipment, and so should have been referred to in the certificate”. He said that absent such a reference, the presumption of accuracy did not arise.

[17] The police argument on this point was that the computer was not involved in the speed measuring process but was merely a device to display and store information. Alternatively, it was said that the certificate can be relied upon on the basis that it relates to a “speed measuring device” including the camera and radar system referred to in the certificate. Alternatively, the police argued that a common law presumption of accuracy could be relied upon to establish the accuracy of the system.

[18] The computer functions are discussed in the Police Autopatrol Speed Camera

System Operators Manual - which was handed up on the appeal - which records:

The speeds of all passing vehicles are measured by the system and logged to a laptop along with photo information. The data is stored on the laptop computer and transferred to floppy disk at the end of each deployment for later processing. The laptop computer is mounted on a pedestal in the front of the vehicle so that the operator may monitor the operation of the camera.

[19] Ellen France J did not accept that s 146(1) imposed a general obligation to prove the accuracy of the computer, and that “[i]n any event, without evidence about

why the computer needs to be accurate, how it affects the radar device, and why there might be an issue about its accuracy in this particular case, it does not matter if the certificate does not cover the computer.”

[20] Ellen France J was strongly of the view that what ought to have happened in this case was for Mr Haskett “to give notice of his challenge to those matters in accordance with s 146(6) so that the Court at first instance could then have had the benefit of expert evidence on these issues”.

Discussion

[21] It will be readily enough apparent from the foregoing that, in its essential features, the question Mr Haskett sought to advance was whether the police could rely in this instance on the Certificate of Accuracy which was put before the Court when, on its face, it did not refer to a “super added” laser sight, or the computer which was associated with the surveillance equipment. Whether the certificate was “sufficient” having regard to the 1994 notice is, as the Crown concedes, a question of law, and on any view it is a significant one, which would also affect other road users. It was also a question of law, again of some significance, if the Certificate of Accuracy was deficient as to what the result should then be in the instant case (and presumably in other cases which were or are dependent on like certificates).

[22] In the result, the application for special leave will be granted.

Solicitors:

Crown Law Office, Wellington