H v Police HC Timaru CRI-2006-476-14 [2007] NZHC 85 (1 March 2007)

Last Updated: 24 June 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

_{CRI-2006-476-000014}

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 1 March 2007

Counsel: Appellant appears In Person

Z R Johnston for Respondent

Judgment: 1 March 2007

_{ORAL JUDGMENT OF PANCKHURST J}

[1] This appeal, against a finding that an infringement notice for exceeding 100 kilometres per hour was proved, involves a close focus upon the wording contained in a certificate of proficiency for operating speed enforcement equipment issued to the constable and produced by him as an exhibit in the District Court. I shall return to the terms and significance of the certificate in a moment.

[2] Constable Dow gave evidence that on Thursday, 5 January 2006 at about

9.02 pm in the evening he was stationed in the Benmore lay-by on State Highway 8 near Omarama. He was in a vehicle which was fitted with a Stalker detection device. A car driven by Mr H , the appellant, approached heading in a northerly

_{direction. He clocked that car at 121 kilometres per hour. The reading was locked}

H V NZ POLICE HC TIM CRI-2006-476-000014 1 March 2007

on the device. When Mr H stopped he was invited to inspect the reading and did so. The officer gave evidence to the Justices that in the course of what he termed “small talk”, while the two were in the course of inspecting the read-out, he asked Mr H what speed he thought he was doing. Mr H replied to the effect that he was not sure, but he could have been proceeding at between 110 to 115 kilometres per hour.

[3] When the case was defended the appellant relied upon documentation which he had obtained under discovery. In particular, Constable Dow produced as Exhibit

1, a copy of what he termed as “training certificate”. It read as follows:

BRUCE RAYMOND DOW having met the theory and practical requirements of the Code of Operations (2001) is deemed to be a certified speed enforcement operator

It was signed by the Superintendent of Road Safety. However, in the left-hand corner of the document there was reference to a certificate number, followed by a date being 19 May 1994.

[4] In cross-examination of Constable Dow Mr H seized upon the circumstance of that date in the bottom left corner and, in particular, that it was some seven years prior to the coming into force of the current code of operations in 2001. This became the substantial ground of defence to the charge.

[5] When asked about the apparent discrepancy in the document, Constable Dow said:

We are just discussing to the effect that this document was issued in 1994?

..... Yep, yep I realise that.

For something that came into effect in 2001, is that correct? ..... That’s dead right.

So there is some difficulty with the accuracy of this document? .... When the initial training was carried out we were all certified in speed detection apparatuses in those days and we had a code of operations.

Sorry, you can speak to me, it’s my question ..... Yeah, I will speak to the Court if that’s okay. The code of operations at that time in 1994 was the one that was in existence which we all sat and passed. Subsequent to them there has been – at that particular time my training was on a Hawk radar. Subsequent to then there’s been Eagle and now Stalker radars and the code of operations have just kept up with new models.

But this document here is dated 1994 for something that didn’t come into effect until 2001 is that correct? ..... That’s correct.

So this document is incorrect, is that correct? ..... No, it’s not incorrect. I’ve already .....

Well then how can it be dated 1994 signed by a character Steve Fitzgerald if it didn’t come into force until 7 years after the date it was dated? ..... That’s the way they worded the documents.

Don’t you think that’s peculiar, that document didn’t come into force until

7 years after the date it was signed? ..... No, I’ve explained as best as I can

how that’s come about.

[6] To place the certificate in context I refer to the Speed Detection Operators Module issued by the New Zealand Police in 2001. Chapter 10 para 1 provides as follows:

Operators

1 Trained Operators

Except for the purposes of instruction, speed detection equipment is to be operated only by members of the NZ Police who have:

• completed the speed detection operators module

• achieved a minimum of 70% in the module theory test

• undergone 20 hours, practical instruction with a qualified instructor and demonstrated competence

• been certified as a trained operator by the Traffic Operations Support

Group (Office of Commissioner).

Former members of the Traffic Safety Service who completed training in the use of speed detection equipment prior to 1992 are deemed to be qualified operators. This covers members whose identification numbers begin E002 up to and including F116.

[7] The argument before me was fashioned with regard to this paragraph of the Code. Mr H submitted that this paragraph was to be interpreted to mean that unless a person had re-sat the requisite tests in 2001 and passed them in terms of the four requirements identified, then they were not a duly qualified speed device operator.

[8] I disagree. What the paragraph requires is that before a person may be certified to be a properly trained operator they must meet the four requirements which are enumerated in it. Whether they do so is a decision for the person who issues the certificate. In this case the Superintendent is obviously satisfied that

Constable Dow was proficient and met the requirements of the 2001 code. Hence he issued to him the certificate of proficiency which was produced as Exhibit 1.

[9] I am in no doubt that there is no requirement to re-sit the test each time a new code comes into existence. That is confirmed, to my mind, by the concluding words in paragraph 1. They provide that even former traffic officers, who completed training in the use of speed detection equipment prior to 1992 were deemed to be qualified operators. That provision is only consistent with the view that it is competent to classify a person as proficient on the basis of previous training and, no doubt, subsequent experience.

[10] Mr H , of course, placed a different interpretation upon what he termed the exception. He argued that unless a person fitted in within its terms, that is had trained prior to 1992, when a traffic officer, that otherwise he or she must sit the test afresh in 2001. That cannot be the proper interpretation. The correct view must be that the concluding paragraph was included out of an excess of caution and to ensure that former traffic officers would be entitled to a certificate of proficiency. Equally so must police constables who passed the requisite training, for example in 1994, and who have continued to work in this field.

[11] For these reasons I do not consider that the document suffers from a defect at all. The date which appears in the bottom left corner of the document does not purport to be the date upon which this certificate of proficiency was issued. Plainly it could not have been issued in 1994 because it refers to the 2001 Code of Operations. That date is merely to confirm that Constable Dow was someone who first held a certificate of proficiency as early as 19 May 1994. It is not the date of the document in the sense for which the appellant contended.

[12] For these reasons I find there is no deficiency in the documentation, let alone any basis for the concern that the constable was not qualified to operate the Stalker device on 5 January 2006.

[13] For completeness, I refer to another ground of appeal, although it was not actively pursued in the course of oral submissions. This case was heard before

Justices in the Oamaru District Court on 10 August 2006. In paragraph [1] the

Justices said this:

The charge of exceeding 100 kilometres per hour is proved. The point is at what level we go to beyond that and in the absence of any sound evidence, we are prepared to accept the 121 kilometres per hour is the level.

[14] On the face of it that statement implies that even in the absence of “any sound evidence” the Justices reached a conclusion as to a speed of 121 kilometres per hour. However, the statement must be placed in context. A reading of the notes of evidence confirms that at one point when argument was proceeding between counsel and the Bench, Mr H indicated that he would have been prepared to accept that he had committed an offence of driving at up to 119 kilometres per hour. However, his offer to do this was not accepted by the prosecution and hence the hearing proceeded. I am in little doubt that the Justices were referring to the fact that the argument was effectively one as between 119 and 121 kilometres per hour and that it was in that context that they referred to the question of “sound evidence”.

[15] Immediately prior to this they had said that the charge of exceeding

100 kilometres per hour was proved. I am in no doubt they were aware that the onus of proof was beyond reasonable doubt.

[16] But even if that conclusion is not safely to be drawn from the opening paragraph when it is read as a whole, I am sitting in this Court hearing a general appeal by way of rehearing. This is not a case where any issue of credibility, or challenge, was raised to the reliability of Constable Dow’s evidence. The one issue that was pursued in cross-examination was the one I have discussed relating to the interpretation, meaning and validity of the certificate of proficiency. On the basis of the evidence, including, of course, the appellant’s admission on the day that he could have been doing between 110 and 115 kilometres per hour, I am in no doubt that there was more than adequate evidence to prove the charge to the requisite standard.

[17] For these reasons the appeal must be, and is, dismissed.

[18] Ms Johnston seeks costs. In my view a small award is justified in all the circumstances of this case. I award costs for a half day hearing in accordance with

_{the Rules under the Costs in Criminal Cases Act 1967.}

Solicitors:

Appellant - Mr L J H , PO Box 13 398, Christchurch

Raymond Donnelly & Co, Christchurch for Respondent