Miller v Police [2012] NZHC 817 (1 May 2012)

Last Updated: 23 May 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2012-409-000013 [2012] NZHC 817

KARL DAVID MILLER

Appellant

V

POLICE

_Respondent

Hearing: 23 April 2012

Counsel: S N Claver for Appellant

MAV Raj for Respondent

Judgment: 1 May 2012

_{JUDGMENT OF WHATA J}

[1] Police Sergeant Lapsley was parked on double yellow lines when he saw Mr Miller engaged in speed racing. Based on Sergeant Lapsley’s evidence, Mr Miller was convicted of operating a vehicle in an unnecessary exhibition of speed in contravention of s 22A (1) of the Land Transport Act 1998. A fine of $400 plus costs was imposed as well as disqualification from driving for six months. This appeal is about whether Sergeant Lapsley’s evidence should have been allowed in because it was improperly obtained in breach of r 6.4 of the Land Transport (Road

_{User) Rule 2004.}

MILLER V POLICE HC CHCH CRI 2012-409-000013 [1 May 2012]

Issue

[2] The critical issue is whether exclusion of Sergeant Lapsley’s evidence would be proportionate to the impropriety of his traffic violation.

Judgment of the District Court

[3] The factual findings of the District Court are as follows:

[5] ... Sergeant Lapsley was on duty in full uniform in a marked patrol car parked on Waller Street near its intersection of Moorhouse Avenue in Christchurch. He was parked, or at least his vehicle was stationary on double yellow lines. The significance of that I will get to in a moment. He heard the engines of two vehicles to his left accelerating and he saw two cars, what he described as racing side by side reaching speeds of about 100 kilometres an hour before one of the vehicles slowed He activated his flashing lights, pulled from his position into Moorhouse Avenue and followed both vehicles until they came to a stop.

[6] He spoke to Mr Miller who told him, and the notes were recorded in a signed notebook statement, that he had come to a stop at the red light at Antigua Street. He did not know how fast he was going. He estimated his speed to be 70 kilometres per hour and he said that he went to get his nose in front, presumably of the other vehicle, and then backed off. That seems to be consistent with what Sergeant Lapsley observed.

[4] The Judge preferred Sergeant Lapsley’s evidence about speed given his vast experience in detection of speed. He was satisfied that Mr Miller was engaged in an unnecessary exhibition of speed which is provided for in the section (s 22A(1)).

[5] The Judge accepted that the evidence of speeding was improperly obtained. The Judge then proceeded, in a careful way,1 to examine the relevant criteria for assessment of impropriety for the purposes of exclusion. He said that the impropriety in this case is almost at the lowest level that one could possibly imagine. He then examined whether or not the impropriety was deliberate, reckless, or done in bad faith. He concluded that there is no suggestion that the Sergeant was acting in

bad faith, though certainly he was acting deliberately. The Judge then observed that while the offending was not the most serious offence that comes before the Court,

there are real public safety concerns with people engaged in street races and the matter was one that has caused considerable concern amongst the community. The Judge did not consider that the investigatory technique was unreasonable even though he could have parked in full view of all road users on Moorhouse Avenue rather than park on yellow lines on Waller Street.

[6] Finally, he considered that the most significant factor was whether the impropriety was necessary to apprehend physical danger either to police or others. He observed:

[18] ... In this case, that goes to the heart of the issue. That was the very reason the Sergeant was parked in that position so as to detect any behaviour that could pose a danger to others and indeed that is what he observed.

[7] On that basis the Judge concludes that while technically the evidence was improperly obtained and that it was in breach of r 6.4, exclusion of that evidence would be disproportionate to the impropriety.

The appellant’s case

[8] Essential to the appellant’s case is that the Police Sergeant’s illegality and the danger it presented to the public, should not be condoned. Mr Claver emphasised that observance of the law by police is fundamental to maintenance of a credible justice system. The appellant also directly challenges the Judge’s assessment of the level of the impropriety. He says there was no immediate need to avoid apprehended physical danger either to the police or others and that the Judge erred in treating this as a significant factor.

Framework

[9] Section 30 of the Evidence Act 2006 identifies the following assessment criteria for the purposes of an exercise required in this case:

30 Improperly obtained evidence

...

(2) The Judge must -

...

(b) ... determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.

[10] For the purposes of this assessment the Court may, among other matters, have regard to the following:

(3) ...

(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:

(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:

(c) the nature and quality of the improperly obtained evidence: (d) the seriousness of the offence with which the defendant is

charged:

(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:

(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:

(g) whether the impropriety was necessary to avoid apprehended physical danger to the police or others:

(h) whether there was any urgency in obtaining the improperly obtained evidence.

[11] Subsection (4) also provides that a Judge must exclude any improperly obtained evidence if, in accordance with subs (2) the Judge determines that its exclusion is proportionate to the impropriety.

[12] The framework for assessment of admissibility of evidence under s 30 is thoroughly addressed in the recent decision of the Supreme Court in Hamed v R.2

While there are different shades of emphasis in the judgments, it is tolerably clear that:

(a) Evidence must be excluded if it is determined that such exclusion is proportionate to the impropriety.

(b) While s 30(2)(b) contemplates a balancing process, the assessment of impropriety and impact on credibility is not to be approached in a bifurcated way. The nature and extent of the impropriety is relevant to maintenance of an effective and credible system of justice.

(c) There are no internal trumps within s 30(3). Rather, the emphasis placed on any of those matters listed, and other matters will depend on the circumstances of the particular case.

Assessment

[13] This case has two relatively unusual features, namely:

(a) The police conduct was unlawful, in the sense of breach of regulation, rather than an act without express authority;3

(b) The nature of the offending is at the lower end of the spectrum, as is evident from the nature of the sentences that may be imposed, namely:4

(a) The maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding

$4,500; and

(b) The court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.

[14] The first aspect is significant, because this Court should not treat lightly police action that is knowingly in contravention of regulation designed to protect the public. Indeed knowing breaches of the law by police officers are discordant with the primary function of the same officers to uphold and to enforce the law. As this appeal illustrates, the public are likely to complain about police officers who act unlawfully in breach of traffic standards, while at the same time seeking to enforce the same standards. Such illegality is prima facie improper and unreasonable.

[15] I therefore accept that the appellant has raised a legitimate concern. If Police Sergeant Lapsley knowingly breached a traffic regulation in the course of enforcing the same regulations that would directly impinge on the credibility of the system of justice. But those are not the facts. The officer admitted that his vehicle was stationary and on double yellow lines. His evidence though, was that he did not consider he was parked in breach of the regulations as the motor was still running. Nor is there any suggestion that the officer was otherwise acting in bad faith. Accordingly, while his act was unlawful, it was not in the category of knowing illegality. In terms of the level of the offending per se, I agree with the Judge in the District Court below that the officer’s offending was at the lower end. There is nothing to suggest that the offending presented a serious safety risk in the circumstances.

[16] Turning then to the nature of the defendant’s offending. As I have observed, traffic offending without injury is not, in the broad scale of things, at the high end of criminal offending. But I concur with the Judge that there are real and legitimate public safety concerns about street races. Travelling at speeds of about 100 kilometres, on a road with a maximum speed limit of 50 kilometres, presents a significant risk to public safety. This is a simple matter of common sense and therefore I can see no error in the Judge’s assessment of the gravity of Mr Miller’s offending.

[17] On the specific issue of whether the impropriety was necessary to avoid apprehended physical danger, I agree with the appellant that the apprehended danger should be proximate to the offending before it could be said to justify the unlawful police conduct. A generalised concern for traffic safety is not, by itself, sufficient.

Be that as it may, stepping back and examining the nature of the offending, (and the serious danger it presents), I agree with the Judge that this is a clear case where the evidence should not be excluded. Indeed, exclusion in the present circumstances would raise significant doubts about the effectiveness and credibility of the judicial system to protect the public.

[18] As a final note, there was some suggestion by the defendant that other investigatory techniques were available to the police, including parking in an alternative location and the use of a speed device. Even if that is correct, I do not consider this issue to be of such moment as to outweigh the overall assessment of the Judge that exclusion of the evidence would be disproportionate to the impropriety.

[19] Accordingly the appeal is dismissed.

Solicitors:

S N Claver, Dunedin, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent