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The Queen v Haskett [2006] NZCA 46 (30 March 2006)

Last Updated: 21 April 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA261/05

THE QUEEN

v

ALISTAIR JAMES HASKETT

Hearing: 7 March 2006

Court: Chambers, John Hansen and Baragwanath JJ

Counsel: Appellant appears in person
F E Guy Kidd for Crown

Judgment: 30 March 2006

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS

(Given by John Hansen J)

[1] Pursuant to special leave granted by this Court on 29 September 2005 the appellant appeals his conviction for driving his motor vehicle at a speed exceeding 100 kilometres per hour.

Background

[2] On 25 April 2003 a speed camera operator, Mr Good, was on duty on the Northwestern motorway in Auckland, approximately 200 metres from the Western Springs off ramp. He set up a speed camera that automatically records and photographs the vehicles and their speed. The appellant’s vehicle was recorded as travelling at 111 kilometres per hour.
[3] On 17 July 2004 the appellant appeared before the Justices of the Peace. They heard evidence from Mr Good. Mr Good produced as an exhibit the speed camera film. The photograph showed Mr Haskett’s vehicle, the date and time, a sign indicating that the vehicle was coming towards the camera, the speed of the vehicle, the site number where the camera was set up, and the film and frame number of the particular photograph.
[4] The appellant did not call evidence but made extensive submissions. Those submissions focused on s 146 of the Land Transport Act 1998. Essentially, Mr Haskett argued that the equipment used was not approved vehicle surveillance equipment, as approved by the Minister in the Transport (Approved Vehicle Surveillance Equipment) Notice 1994. He also argued that the prosecution had failed to establish the particular vehicle surveillance equipment was accurate, and that no statutory or common law presumption of accuracy applied. In the alternative he argued any statutory presumption was rebutted. He submitted the Justices should not have admitted hearsay evidence from the prosecution, and that the prosecution had failed to establish that the particular vehicle surveillance equipment used was approved.
[5] The Justices dismissed all these grounds and convicted the appellant. He was fined $180 and ordered to pay costs of $30.
[6] He appealed and Ellen France J dismissed his appeal. The appellant then sought leave to appeal to this Court, which was declined by Keane J on 7 July 2005.
[7] Because of the view we have formed of this matter, it is unnecessary to traverse the reasoning of Ellen France J and Keane J. It is sufficient to say that based on the appellant’s, and the Crown’s, submissions their focus was understandably on s 146.
[8] Before this Court, on the special leave application, Mr Haskett sought to advance six questions of law. He accepted that questions 4 and 5 were challenges to decisions made at trial to admit evidence and abandoned them. This Court concluded that the remaining questions raised issues of such general and public importance that they ought to be submitted to this Court.
[9] The appellant’s brief summary of the questions of law in this case is:

a) Whether a s 146 Land Transport Act 1998 certificate of accuracy must refer to the compatible computer.
b) Whether a super-added laser sight means the equipment used is not approved.
c) Whether s 146(6) Land Transport Act prevents challenges to certificates of accuracy.
d) What is the common law presumption of accuracy on mechanical instruments?

Submissions

[10] Mr Haskett has filed comprehensive and erudite submissions addressing the four questions of law raised. However, because of the view we have taken in relation to s 145 we will not address these at great length. By so doing we mean no disrespect to the appellant’s submissions, but rather recognise that this case, at an early stage, went down the wrong statutory route.
[11] Firstly Mr Haskett submits that approved vehicle surveillance equipment (AVSE) is defined in s 2(1) of the Land Transport Act as "vehicle surveillance equipment of a kind approved by the Minister of Police, by notice in the Gazette". Mr Haskett next referred to the Transport (Approved Vehicle Surveillance Equipment) Notice 1994 (notified in the Gazette on 15 September 1994) which provides that:

2. Approval of AutoPatrol PR-100NZ – The 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] Mr Haskett submits that a compatible computer forms one part of an AVSE and the failure of the prosecution to have its accuracy confirmed by way of certificate pursuant to s 146 is a fatal flaw.
[13] Secondly, he argues that the addition of a laser sighting device to the PR-100NZ means the equipment used by Mr Good was not an AVSE.
[14] Thirdly, he submits that he is entitled to challenge the accuracy of the certificate submitted under s 146(1) even though no application was made pursuant to subs (6).
[15] Finally, he argues that the common law presumption of accuracy is not applicable in this case.
[16] The Crown sought to file further evidence in this case by way of affidavits of Messrs Phillips and Tisch. This was objected to by the appellant. We do not propose to refer to this evidence as it is irrelevant to our view of the appeal.
[17] Ms Guy Kidd on behalf of the Crown argued that it was irrelevant that the Transport (Approved Vehicle Surveillance Equipment) Notice 1994 did not specifically refer to the laser sight. She submitted that it had always been an integral part of the AutoPatrol PR-100NZ radar system as used in New Zealand. The radar, in combination with the laser sight, had been tested by the Measurement Standards Laboratory of New Zealand and their report had been presented to the Minister of Police. It was before the Minister when he approved the system, so the reference in the approval notice to the "AutoPatrol PR-100NZ radar system" must be a reference to the radar and laser sight attachment combined. Ms Guy Kidd also pointed out that this report was before Ellen France J.
[18] In relation to the reference to a "compatible computer" she submitted a purposive reading of the combined provisions in s 146(1) Land Transport Act, as required by s 5(1) Interpretation Act 1999, means it is only the element of the system which could affect or relate to the "accuracy" of speed readings which requires testing and certification. She submitted that it would be unnecessary, and meaningless, for other components to be tested and certified as to accuracy.
[19] The Crown submitted that the informant was entitled to rely on the common law presumption of accuracy in the absence of evidence to the contrary, relying on Von Sturmer v Police HC WN CRI 2004-485-000019 6 April 2004.
[20] Finally, as a subsidiary submission, Ms Guy Kidd submitted that if this Court did not accept that the informant could rely on the certificate of accuracy number 90586 in respect of this offence the informant could rely on s 145(1) in proving the offence. The production of the photograph taken by the speed camera, showing a speed of 111 kilometres per hour, was sufficient to prove the offence, in the absence of evidence to the contrary.

Discussion

[21] We consider the straight forward answer lies in the provisions of s 145 Land Transport Act and its relationship with s 146. It is unfortunate that this case, from the beginning, took a wrong turn by the concentration on s 146. While s 145 was referred to towards the end of the Crown’s written submissions it was only when the matter was argued in front of us that its significance emerged.
[22] Sections 145 and 146, as applicable at the time of this offence, read (we have emphasised salient passages):

145 Evidence of approved vehicle surveillance equipment

(1) In proceedings for a moving vehicle offence, an image produced by means of an exposure taken by approved vehicle surveillance equipment and showing or recording a motor vehicle on a road, the speed of the vehicle, the location of the vehicle, the colour or form of a traffic control device, and the date and time when the image was taken, or showing or recording any of those things, is, in the absence of proof to the contrary, sufficient evidence of that fact or event.
(2) The production in proceedings for a moving vehicle offence of an image purporting to be an image referred to in subsection (1) is, in the absence of proof to the contrary, sufficient evidence that the image was produced by means of an exposure taken by approved vehicle surveillance equipment.

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 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 Director, 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 evidence 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.

[23] Section 145 deals with the evidentiary effects of exposures taken by AVSE. Section 146 deals not only with AVSE (subs (4)) but with other measuring devices, a number of which can be used by enforcement authorities to ascertain whether vehicles have exceeded the speed limit. The device which we are concerned with in this case creates a photographic exposure which records a motor vehicle on a road, the speed of the vehicle and its location, and the date and time when the image was taken. From this photographic exposure an image is produced.
[24] Such a device is commonly referred to as a "speed camera" and, if approved as an AVSE by the Minister, comes within s 145. The image is deemed to be evidence of speed in the absence of proof to the contrary.
[25] Subsection (2) provides that in the absence of proof to the contrary the production of the image is sufficient to show it was produced by means of an exposure taken by an AVSE.
[26] It is common ground in this case that the appellant, despite invitation from the Justices, did not call any evidence.
[27] There being no proof to the contrary, it follows pursuant to subs (2) that the production of the image was sufficient evidence to establish that the equipment used to produce the exposure was an AVSE. It further follows pursuant to subs (1) that such production is sufficient evidence to identify the appellant’s vehicle and the speed it was travelling at the relevant date and time. The charge was therefore proved.
[28] Section 146 may become relevant where a defendant in an AVSE case has adduced "evidence to the contrary" to challenge the presumptive effect of s 145. But where that does not occur there is no need to refer to s 146; in the present circumstances s 145 is self-sufficient.
[29] Mr Haskett invited us to find that the term "in the absence of proof to the contrary" does not mean proof on the balance of probabilities. He submitted the Court should find that it is sufficient if any evidence is raised causing a reasonable doubt.
[30] We decline to address this submission for two reasons. The first is that it is irrelevant on the facts of this case because Mr Haskett failed to adduce evidence in front of the Justices. The second is that similar terminology, albeit it in a different statutory context, has established the burden as the balance of probabilities: Civil Aviation Dept v MacKenzie [1983] NZLR 78 and R v Phillips [1991] 3 NZLR 175. It is also inappropriate to comment further given the very point is being considered by the Supreme Court in R v Hansen SC58-2005.
[31] Given Mr Haskett’s submission that s 145 should be read subject to s 146, it is appropriate that we elaborate on the relationship between the two sections. Section 145 is limited to moving vehicle offences established by way of a speed camera. "Moving vehicle offence" includes a speeding offence. In contrast, s 146 relates to speeding offences against any by-laws or enactments, or any other offences against the Land Transport Act, or against the Road User Charges Act 1977.
[32] It is obvious that the enforcement authorities use a wide range of devices to detect traffic offences. They also use equipment to test the accuracy of such devices. Section 146 encompasses speeding offences where proof is sought to be determined by devices or equipment other than a speed camera, or such other offences covered by s 146(1) where equipment and devices pursuant to subs (4) can be used to establish the alleged offence.
[33] Section 146 also has limited application in relation to s 145. If under s 145(1) "proof to the contrary" is established, the authorities could then rely on a certificate pursuant to s 146 as to the accuracy of the equipment used. That would still leave it open to a person charged with an offence to take issue with the certificate in accordance with s 146(6).
[34] It should not be forgotten that speeding detected by AVSE can never lead to more than a fine. It does not even lead to the recording of demerit points: Land Transport (Offences and Penalties) Regulations 1999, reg 6(3). Because of the low level nature of the offending and the low level of "punishment", Parliament has been satisfied that, generally speaking, production of a photograph recording the speed should suffice as prima facie proof. It is always open to the motorist under both subss (1) and (2) of s 145 to prove to the contrary. That may be achieved either by calling direct evidence or by cross-examination.
[35] In all of those circumstances we find it unnecessary to address the specific questions of law raised by the appellant The simple answer can be found in s 145 and it is regrettable that the matter has gone so far without that being established. Accordingly, the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington

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[2]	On 25 April 2003 a speed camera operator, Mr Good, was on duty on the Northwestern motorway in Auckland, approximately 200 metres from the Western Springs off ramp. He set up a speed camera that automatically records and photographs the vehicles and their speed. The appellant’s vehicle was recorded as travelling at 111 kilometres per hour.
[3]	On 17 July 2004 the appellant appeared before the Justices of the Peace. They heard evidence from Mr Good. Mr Good produced as an exhibit the speed camera film. The photograph showed Mr Haskett’s vehicle, the date and time, a sign indicating that the vehicle was coming towards the camera, the speed of the vehicle, the site number where the camera was set up, and the film and frame number of the particular photograph.
[4]	The appellant did not call evidence but made extensive submissions. Those submissions focused on s 146 of the Land Transport Act 1998. Essentially, Mr Haskett argued that the equipment used was not approved vehicle surveillance equipment, as approved by the Minister in the Transport (Approved Vehicle Surveillance Equipment) Notice 1994. He also argued that the prosecution had failed to establish the particular vehicle surveillance equipment was accurate, and that no statutory or common law presumption of accuracy applied. In the alternative he argued any statutory presumption was rebutted. He submitted the Justices should not have admitted hearsay evidence from the prosecution, and that the prosecution had failed to establish that the particular vehicle surveillance equipment used was approved.
[5]	The Justices dismissed all these grounds and convicted the appellant. He was fined $180 and ordered to pay costs of $30.
[6]	He appealed and Ellen France J dismissed his appeal. The appellant then sought leave to appeal to this Court, which was declined by Keane J on 7 July 2005.
[7]	Because of the view we have formed of this matter, it is unnecessary to traverse the reasoning of Ellen France J and Keane J. It is sufficient to say that based on the appellant’s, and the Crown’s, submissions their focus was understandably on s 146.
[8]	Before this Court, on the special leave application, Mr Haskett sought to advance six questions of law. He accepted that questions 4 and 5 were challenges to decisions made at trial to admit evidence and abandoned them. This Court concluded that the remaining questions raised issues of such general and public importance that they ought to be submitted to this Court.
[9]	The appellant’s brief summary of the questions of law in this case is:

[10]	Mr Haskett has filed comprehensive and erudite submissions addressing the four questions of law raised. However, because of the view we have taken in relation to s 145 we will not address these at great length. By so doing we mean no disrespect to the appellant’s submissions, but rather recognise that this case, at an early stage, went down the wrong statutory route.
[11]	Firstly Mr Haskett submits that approved vehicle surveillance equipment (AVSE) is defined in s 2(1) of the Land Transport Act as "vehicle surveillance equipment of a kind approved by the Minister of Police, by notice in the Gazette". Mr Haskett next referred to the Transport (Approved Vehicle Surveillance Equipment) Notice 1994 (notified in the Gazette on 15 September 1994) which provides that:

[12]	Mr Haskett submits that a compatible computer forms one part of an AVSE and the failure of the prosecution to have its accuracy confirmed by way of certificate pursuant to s 146 is a fatal flaw.
[13]	Secondly, he argues that the addition of a laser sighting device to the PR-100NZ means the equipment used by Mr Good was not an AVSE.
[14]	Thirdly, he submits that he is entitled to challenge the accuracy of the certificate submitted under s 146(1) even though no application was made pursuant to subs (6).
[15]	Finally, he argues that the common law presumption of accuracy is not applicable in this case.
[16]	The Crown sought to file further evidence in this case by way of affidavits of Messrs Phillips and Tisch. This was objected to by the appellant. We do not propose to refer to this evidence as it is irrelevant to our view of the appeal.
[17]	Ms Guy Kidd on behalf of the Crown argued that it was irrelevant that the Transport (Approved Vehicle Surveillance Equipment) Notice 1994 did not specifically refer to the laser sight. She submitted that it had always been an integral part of the AutoPatrol PR-100NZ radar system as used in New Zealand. The radar, in combination with the laser sight, had been tested by the Measurement Standards Laboratory of New Zealand and their report had been presented to the Minister of Police. It was before the Minister when he approved the system, so the reference in the approval notice to the "AutoPatrol PR-100NZ radar system" must be a reference to the radar and laser sight attachment combined. Ms Guy Kidd also pointed out that this report was before Ellen France J.
[18]	In relation to the reference to a "compatible computer" she submitted a purposive reading of the combined provisions in s 146(1) Land Transport Act, as required by s 5(1) Interpretation Act 1999, means it is only the element of the system which could affect or relate to the "accuracy" of speed readings which requires testing and certification. She submitted that it would be unnecessary, and meaningless, for other components to be tested and certified as to accuracy.
[19]	The Crown submitted that the informant was entitled to rely on the common law presumption of accuracy in the absence of evidence to the contrary, relying on Von Sturmer v Police HC WN CRI 2004-485-000019 6 April 2004.
[20]	Finally, as a subsidiary submission, Ms Guy Kidd submitted that if this Court did not accept that the informant could rely on the certificate of accuracy number 90586 in respect of this offence the informant could rely on s 145(1) in proving the offence. The production of the photograph taken by the speed camera, showing a speed of 111 kilometres per hour, was sufficient to prove the offence, in the absence of evidence to the contrary.

[21]	We consider the straight forward answer lies in the provisions of s 145 Land Transport Act and its relationship with s 146. It is unfortunate that this case, from the beginning, took a wrong turn by the concentration on s 146. While s 145 was referred to towards the end of the Crown’s written submissions it was only when the matter was argued in front of us that its significance emerged.
[22]	Sections 145 and 146, as applicable at the time of this offence, read (we have emphasised salient passages):

[23]	Section 145 deals with the evidentiary effects of exposures taken by AVSE. Section 146 deals not only with AVSE (subs (4)) but with other measuring devices, a number of which can be used by enforcement authorities to ascertain whether vehicles have exceeded the speed limit. The device which we are concerned with in this case creates a photographic exposure which records a motor vehicle on a road, the speed of the vehicle and its location, and the date and time when the image was taken. From this photographic exposure an image is produced.
[24]	Such a device is commonly referred to as a "speed camera" and, if approved as an AVSE by the Minister, comes within s 145. The image is deemed to be evidence of speed in the absence of proof to the contrary.
[25]	Subsection (2) provides that in the absence of proof to the contrary the production of the image is sufficient to show it was produced by means of an exposure taken by an AVSE.
[26]	It is common ground in this case that the appellant, despite invitation from the Justices, did not call any evidence.
[27]	There being no proof to the contrary, it follows pursuant to subs (2) that the production of the image was sufficient evidence to establish that the equipment used to produce the exposure was an AVSE. It further follows pursuant to subs (1) that such production is sufficient evidence to identify the appellant’s vehicle and the speed it was travelling at the relevant date and time. The charge was therefore proved.
[28]	Section 146 may become relevant where a defendant in an AVSE case has adduced "evidence to the contrary" to challenge the presumptive effect of s 145. But where that does not occur there is no need to refer to s 146; in the present circumstances s 145 is self-sufficient.
[29]	Mr Haskett invited us to find that the term "in the absence of proof to the contrary" does not mean proof on the balance of probabilities. He submitted the Court should find that it is sufficient if any evidence is raised causing a reasonable doubt.
[30]	We decline to address this submission for two reasons. The first is that it is irrelevant on the facts of this case because Mr Haskett failed to adduce evidence in front of the Justices. The second is that similar terminology, albeit it in a different statutory context, has established the burden as the balance of probabilities: Civil Aviation Dept v MacKenzie [1983] NZLR 78 and R v Phillips [1991] 3 NZLR 175. It is also inappropriate to comment further given the very point is being considered by the Supreme Court in R v Hansen SC58-2005.
[31]	Given Mr Haskett’s submission that s 145 should be read subject to s 146, it is appropriate that we elaborate on the relationship between the two sections. Section 145 is limited to moving vehicle offences established by way of a speed camera. "Moving vehicle offence" includes a speeding offence. In contrast, s 146 relates to speeding offences against any by-laws or enactments, or any other offences against the Land Transport Act, or against the Road User Charges Act 1977.
[32]	It is obvious that the enforcement authorities use a wide range of devices to detect traffic offences. They also use equipment to test the accuracy of such devices. Section 146 encompasses speeding offences where proof is sought to be determined by devices or equipment other than a speed camera, or such other offences covered by s 146(1) where equipment and devices pursuant to subs (4) can be used to establish the alleged offence.
[33]	Section 146 also has limited application in relation to s 145. If under s 145(1) "proof to the contrary" is established, the authorities could then rely on a certificate pursuant to s 146 as to the accuracy of the equipment used. That would still leave it open to a person charged with an offence to take issue with the certificate in accordance with s 146(6).
[34]	It should not be forgotten that speeding detected by AVSE can never lead to more than a fine. It does not even lead to the recording of demerit points: Land Transport (Offences and Penalties) Regulations 1999, reg 6(3). Because of the low level nature of the offending and the low level of "punishment", Parliament has been satisfied that, generally speaking, production of a photograph recording the speed should suffice as prima facie proof. It is always open to the motorist under both subss (1) and (2) of s 145 to prove to the contrary. That may be achieved either by calling direct evidence or by cross-examination.
[35]	In all of those circumstances we find it unnecessary to address the specific questions of law raised by the appellant The simple answer can be found in s 145 and it is regrettable that the matter has gone so far without that being established. Accordingly, the appeal is dismissed.