Kane v Police [2014] NZHC 618 (31 March 2014)

Last Updated: 9 April 2014

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2013-476-000005 [2014] NZHC 618

BETWEEN STEVEN PAUL KANE Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 27 March 2014

Appearances: Appellant Appears In Person

N M Willcocks for Respondent

Judgment: 31 March 2014

_{JUDGMENT OF GENDALL J}

Introduction

[1] On 18 July 2013 the appellant was convicted in the District Court of an infringement offence of operating a heavy motor vehicle on a road at a speed in excess of 90 kilometres per hour. The matter had proceeded to a defended hearing before two Justices of the Peace and following the conviction the appellant was fined

$80 and ordered to pay court costs of $130. He now appeals that conviction

[2] In the District Court the Justices of the Peace found that the appellant had committed the speeding infringement given that he was checked by a Stalker radar device operated by a Police Officer driving a truck and trailer unit travelling at 103 km/hour on State Highway One, near Timaru on 9 January 2013. An infringement notice was issued in relation to this. A further infringement notice was issued with respect to a charge of exceeding the maximum distance on a distance licence, but this was dismissed as the police officer involved accepted a mistake had been made

_{in the calculations.}

KANE v NEW ZEALAND POLICE [2014] NZHC 618 [31 March 2014]

Applicant’s grounds for appeal

[3] In this appeal, the appellant essentially endeavours to attack the credibility of the police officer involved who was operating the Stalker radar device. He contends this police officer’s evidence was subjective, biased, inaccurate in parts and uncorroborated and therefore did not meet the standard required of proof beyond reasonable doubt. He goes on to attack various statements that the police officer made in his evidence. It is clear that there were some minor mistakes made by the police officer, but the majority of those were accepted in evidence at the hearing and made no difference to the outcome here.

[4] In his appeal, the appellant claims that his vehicle’s alleged speed was recorded as the vehicle exited passing lanes, and he says the situation was confused as other vehicles were both leading and following the truck as it did so.

[5] The appellant also submitted that the vehicle he was driving is speed-limited to 99 km/hour which he says cannot be over-run unless the vehicle is travelling on a considerable downhill gradient which was not the case here. It does not appear that any evidence as to this was given at the hearing however.

[6] The appellant then refers to a phone call he says he received from the same police officer. In this, the appellant considered the officer’s manner to be aggressive and acrimonious, but there is no independent evidence or record of this. The relevance of these disputed allegations is also somewhat doubtful here.

[7] The appellant’s principal submission on this appeal is that the recorded speed alleged in the infringement notice has not been proven to have been obtained from the vehicle he was operating. He suggested that with the presence of other vehicles on the road at the time and, given what he says was the absence of corroborated evidence, the police officer’s evidence was unreliable, tainted and questionable. Reasonable doubt therefore exists as to the issuing of the notice and the finding of the Justices of the Peace in upholding it.

[8] He submitted broadly that the evidence of the prosecution did not meet the standard required and the infringement had not been proven beyond reasonable doubt.

Respondent’s submissions

[9] The respondent submits that the grounds of appeal have no merit, there has been no error of fact or law and that in the District Court the Justices of the Peace who heard all the evidence were entitled to find the charge was proved.

[10] Reference was made to s 146 Land Transport Act 1998 which provides a statutory presumption that a Certificate of Accuracy for the Stalker radar device concerned, in the absence of proof to the contrary, is sufficient proof that the equipment or device was accurate in measuring speed. Such a Certificate of Accuracy was before the Court here.

[11] It was submitted that the appellant had not challenged this Certificate of Accuracy for either the vehicle or the relevant devices and that the documents were therefore presumed accurate. Section 146(5) Land Transport Act 1998 required that testing of the equipment must not be more than 12 months before the date of the alleged offence. In this case, the certificates were dated September 2012 and January 2013 and therefore were not more than 12 months old at the date of the offence.

[12] The respondent also submitted that rule 5.1(3) of the Land Transport Road User Rules 2004 sets out circumstances where a person who exceeds the applicable speed limit is not in breach. It is clear however that the appellant did not come within any of the exceptions.

[13] The respondent suggested that most of the grounds advanced by the appellant in support of this appeal involved challenges to findings of fact made by the Justices of the Peace for which there was sufficient evidence, and these arguments on the part of the appellant must be seen as entirely without merit.

[14] As to the evidence accepted by the Justices of the Peace here to find the charge proven, it was noted that the appellant admitted to being the driver of the vehicle in question and further that there was evidence provided to establish the appellant’s vehicle was travelling in excess of the 90 kilometre speed limit, being in particular:

(a) The police officer’s evidence of estimating the appellant’s vehicle’s

speed at the time;

(b) The police officer’s evidence of checking the vehicle’s speed at 103

kilometres and then locking that speed with the Stalker radar device; (c) Provision of the Stalker radar device’s Certificate of Accuracy; and

(d) Provision of the police vehicle’s speedometer and odometer

Certificate of Accuracy in question.

[15] The respondent maintains that the appellant has been unable to establish that the original fact finders erred in fact and law, and therefore the appeal should be dismissed. And, the respondent suggests too that there can be no question here that the Justices of the Peace may have acted outside their jurisdiction.

Decision

[16] An appeal such as this must be allowed if the Justices of the Peace here erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred, or indeed that generally a miscarriage of justice has occurred for other reasons. Miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the hearing that has created a real risk that the outcome of this matter was affected or has resulted in an unfair trial or a trial that was a nullity.

[17] However, in a case such as this the High Court must also be mindful of the disadvantage it has in not seeing and hearing the witnesses.¹ In R v Munro the Court

_{of Appeal found that there are recognizable advantages in seeing and hearing}

¹ Sullivan v Police HC Auckland CRI 2008-404-152, 2 October 2008 at [30].

witnesses in the context of an entire hearing. This aspect of Munro was affirmed by the Supreme Court in Owen v R² where the Court recognised the advantages that lower courts have in assessing the honesty and reliability of witnesses. Therefore, when dealing with an appeal such as this against a decision where findings were based on an assessment of witness(es)’ credibility by the Justices of the Peace concerned, it is clear that some deference should be given to that assessment.

[18] And the burden in an appeal of this kind lies on the appellant who must satisfy this Court that the Justices of the Peace were not justified in entering the conviction they did, or at least that their minds should have been left in a state of reasonable doubt. In my view that burden has not been discharged in this case.

[19] I agree too with the submissions advanced by the respondent here. This appeal essentially comes down to a challenge by the appellant to the evidence accepted in the District Court. In this case it was noted the police officer involved is an experienced officer of 27 years experience and the Justices of the Peace, who had the advantage of hearing all the evidence, clearly preferred his evidence to that of the appellant, which they were entitled to do in the circumstances of this case. Nor in my view can there be any suggestion here of any other error, irregularity or other matter arising in this case which could have given rise to a miscarriage of justice.

[20] I consider that the decision of the Justices of the Peace was correct. [21] The appeal is dismissed.

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

Gendall J

Solicitors:

Gresson Dorman & Co, Timaru

Copy to Appellant

² Owen v R [2007] NZSC 102 at [15].