Zhao v Police HC Auckland CRI-2010-404-493 [2011] NZHC 1217 (13 October 2011)

Last Updated: 23 October 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2010-404-493}

UNDER Section 144 Summary Proceedings Act

1957

IN THE MATTER OF an application for leave to appeal from a determination of the High Court

BETWEEN YUANWEN ZHAO Applicant

AND NEW ZEALAND POLICE Respondent

Hearing: (on the papers) Counsel: Applicant in Person

E J McCaughan for Respondent

Judgment: 13 October 2011 at 4:00 PM

JUDGMENT OF PETERS J [re Leave to Appeal]

This judgment was delivered by Justice Peters on 13 October 2011 at 4:00 pm pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors: Meredith Connell, Auckland

_email: [e-mail]

_{Copy for: Y Zhao}

ZHAO V POLICE HC AK CRI-2010-404-493 13 October 2011

[1] The applicant applies to the High Court under s 144(2) of the Summary Proceedings Act 1957 (“the Act”) for leave to appeal to the Court of Appeal against a decision I gave on 28 March 2011.

[2] The applicant made his application for leave out of time and seeks an extension of time for making his application.[1]

[3] The respondent opposes both the application for an extension of time and the application for leave to appeal.

Background

[4] The applicant was charged with and convicted of offences pursuant to r 5.1

Land Transport (Road User) Rules 2004, s 40(1) Land Transport Act 1998 and r 3(1)

of the Land Transport (Offences and Penalties) Regulations 1999.

[5] The case against the applicant was that at approximately 11:00 pm on

10 May 2010, he exceeded a speed limit of 70 kilometres per hour when travelling northbound on State Highway 1 (“SH1”). The relevant part of SH1 is identified as the Victoria Park fly-over, running from south of the Wellington Street over-bridge to the apex of the Fanshawe Street on-ramp.

[6] The case was heard in the District Court at Auckland before two Justices of the Peace. The two issues at the trial were whether the speed limit in effect at the relevant time and place was in fact 70 kilometres per hour and, if so, whether the applicant had exceeded that speed. Ms A Williamson of Fletcher Construction Limited gave evidence on the first issue and Constable Weavers gave evidence on the second. The applicant did not give evidence.

[7] Having heard the evidence, their Worships convicted the applicant. Their

Worships fined the applicant and imposed demerit points. [8] I dismissed the applicant‟s appeal.

[9] The matters on which the applicant seeks leave to appeal to the

Court of Appeal are as follows:

(a) Whether it is fair, reasonable and reliable to convict someone on the word of only one witness, especially when her credibility and the reliability of her evidence were demonstrably unreliable.

(b) For the purpose of s 13(3)(f) of the Criminal Disclosure Act 2008, whether it is fair to deny someone‟s right of disclosure and [sic] it may have prejudiced him in his defence of the charge.

(c) Did the High Court Judge proceed inappropriately in law or incorrectly apply the test when determining the appellant‟s complaint that:

(i) there are discrepancies in the officer‟s testimony recorded in the „notes of evidence‟ and his questions sheet;

(ii) the police prosecutor failed to act fairly and impartially at all times at the defended hearing?

(d) Are traffic officers allow to use a method to determine a vehicle‟s speed which is not defined in the Police policy for the purpose of s 5(1)(a) of the Police Regulations 1992? If the answer is yes, will traffic officers be so empowered that they can abuse that power?

(c) Whether s 25(a) of the New Zealand Bill of Rights Act 1990 has been complied with.

[10] The applicant has given no reason for his delay in making his application for leave. He is, however, a litigant in person for whom English is a second language, and his application was approximately two weeks out of time. Submissions from the parties were subsequently exchanged, and then both parties advised they were content for the matter to be dealt with on the papers. I propose to grant the extension of time sought given the short period in issue and the lack of any prejudice to the respondent.

Jurisdiction

[11] The relevant part of s 144 of the Act provides as follows:

144 Appeal to Court of Appeal

(1) Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal:

Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2) A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

...

[12] Two matters which appear from s 144(1) and (2) respectively are that:

(a) the question of law which the applicant seeks to appeal must have arisen in the general appeal, that is, the appeal which I heard;[2] and

(b) the question of law must be one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal.

[13] There is no jurisdiction to grant leave unless those criteria are met.

[14] I do not consider the criteria are met in this case and, accordingly, do not grant the leave sought. I turn now to give my reasons in respect of each question proposed by the applicant.

Whether it is fair, reasonable and reliable to convict someone on the word of only one witness, especially when her credibility and the reliability of her evidence were demonstrably unreliable?

[15] The applicant did not rely on this point before me on appeal and it does not raise a question which meets the criteria identified in s 144(2) of the Act.

[16] It is for the trier of fact to determine whether an offence has been proved beyond reasonable doubt. The trier of fact is entitled to find an offence proved to the necessary standard on the evidence of a single witness. In a criminal proceeding of the type in issue in this case, it is not necessary for the evidence on which the prosecution relies to be corroborated.[3]

For the purpose of s 13(3)(f) of the Criminal Disclosure Act 2008, whether it is fair to deny someone’s right of disclosure and it may have prejudiced him in his defence of the charge.

[17] On appeal before me, the applicant contended that their Worships erred in convicting him because a particular document was not disclosed to him, but was produced at trial.

[18] Ms Williamson‟s evidence concerned the implementation of a temporary speed limit of 70 kilometres per hour over the relevant northbound section of SH1. The southernmost point of the section of SH1 with which the case was concerned is shown on a “Traffic Management Plan”, identified as VPT-T-096-04/4, and the northernmost point on 01/4.

[19] Prior to trial the prosecution gave disclosure of plans VPT-T-096-01/4, 03/4 and 04/4. The prosecution did not, however, disclose plan 02/4. Together all four plans show the relevant section of SH1. At first glance, plan 02/4 indicates that the speed limit for the area it depicts is 80 kilometres per hour.

[20] At trial, the prosecution produced all four plans as exhibit three.

[21] In response to questions put by the applicant, Ms Williamson and Constable Weavers gave evidence that there was in fact no “80 kilometre per hour” sign at the location shown on plan 02/4. Ms Williamson gave evidence that, although the speed limit over that area had previously been 80 kilometres per hour, at the relevant time it was 70 kilometres per hour.

[22] The applicant did not himself give evidence of an 80 kilometre per hour sign at the relevant location.

[23] Accordingly, aside from what appeared on plan 02/4 and which was explained by the prosecution witnesses, there was evidence that the speed limit was

70 kilometres per hour and that it was signposted as such. Their Worships accepted this evidence.

[24] I add that it appears from the notes of evidence that, notwithstanding the lack of disclosure, the applicant had himself obtained a copy of plan 02/4. The applicant also advised their Worships that plan 02/4 had not been disclosed to him before trial. Their Worships asked the applicant if he wished map 02/4 to be excluded and he said that he did not.

[25] In those circumstances, there is no credible basis on which it could be contended that non-disclosure prejudiced the applicant in any way. The argument is simply not tenable.[4]

Did the High Court Judge proceed inappropriately in law or incorrectly apply

the test when determining the appellant’s complaint that:

(i) there are discrepancies in the officer’s testimony recorded in the

‘notes of evidence’ and his questions sheet; and

(ii) the police prosecutor failed to act fairly and impartially at all times at the defended hearing?

[26] The point raised before me on appeal in relation to sub-paragraph (i) was that the applicant asked Constable Weavers to state the colour of the applicant‟s car. The notes of evidence record that Constable Weavers replied “I don‟t recall”. On appeal the applicant said he had recorded the Constable‟s answer as “I don‟t know”. No question of law arises on this point, let alone one which meets the criteria in s 144(2) of the Act. It is an evidential matter which would have had no bearing whatsoever on the outcome of the prosecution.

[27] I should also mention that, although the applicant has the notes of evidence, he also sought to have a copy of the audio tape of the proceedings. The alleged discrepancy to which I have just referred, and a point raised by the applicant as to the conduct of the police prosecutor to which I refer below, would have had no bearing on the outcome of the case. On the evidence before them, their Worships were satisfied that the applicant had exceeded the speed limit as alleged. The outcome would not be affected by provision to the applicant of a copy of the audio tape.

[28] In relation to sub-paragraph (ii), an issue arose before their Worships as to how Constable Weavers had determined the applicant‟s speed. The Constable‟s evidence was that she had conducted a “pace check” by keeping a fixed distance between her vehicle and the applicant‟s, and ascertaining the applicant‟s speed by looking at her speedometer.

[29] On the infringement notice issued to the applicant, Constable Weavers recorded that she had ascertained the applicant‟s speed by “pursuit”. The Constable gave evidence that the reference on the infringement notice to “pursuit” was a

reference to a pace check of the type she had conducted. The applicant contended that “pursuit” in this context was governed by a police policy document governing pursuits of fleeing drivers, an entirely different matter.

[30] On appeal before me, the applicant contended that, whilst Constable Weavers was giving this evidence, the police prosecutor whispered to her that she should say “pace check”. The applicant complained that this had not been transcribed in the notes of evidence.

[31] Whatever the prosecutor‟s conduct, I am satisfied the point could have had no outcome whatsoever on the prosecution. Their Worships were entitled to accept Constable Weavers‟ evidence, given several times, that “pursuit” on an infringement notice was a reference to a pace check and that there had been no irregularity in that respect.

Are traffic officers allow to use a method to determine a vehicle’s speed which is not defined in the Police policy for the purpose of s 5(1)(a) of the Police Regulations 1992? If the answer is yes, will traffic officers be so empowered that they can abuse that power?

[32] The Police Regulations 1992 were revoked on 1 October 2008 by the Policing Regulations 2008 and were not in force at the time of the offence. It is therefore not necessary to consider this ground.

Whether the Court complied with s 25(a) of the New Zealand Bill of Rights Act

1990?

[33] There was no argument on appeal before me that there had been a failure to comply with s 25(a) of the New Zealand Bill of Rights Act 1990. Section 25(a) provides that, at a minimum, a party has the right to a fair and public hearing by an independent and impartial court.

[34] Whether s 25(a) has been met is a question of fact, not of law and the argument that s 25(a) was not met is not tenable in any event. The applicant submits

that s 25(a) was breached because the prosecution failed to comply with its disclosure obligations, as discussed above, and because the police prosecutor allegedly failed to act in accordance with r 13.12 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.

[35] As I said in my judgment, there is no evidence that the police prosecutor was a “lawyer” for the purposes of r 13.12, nor any evidence that the police prosecutor breached the rules.

[36] Given the above, I decline the application for leave to appeal.

[37] The respondent is entitled to costs on a 2B basis, together with disbursements as fixed by the Registrar.

..................................................................

PETERS J

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[1] Summary Proceedings Act 1957, ss 123 and 144

[2] Candy v Auckland City Council CA371/02, 25 February 2003 at [14].

[3] Evidence Act 2006, s 121(1).

[4] Candy, above n 2, at [15].