IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CRI [2013] NZHC ANTHONY RAHIRI MARSH Appellant

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CRI [2013] NZHC 2234 BETWEEN AND ANTHONY RAHIRI MARSH Appellant NEW ZEALAND POLICE Respondent Hearing: 28 August 2013 Appearances: Appellant Appears in Person K J Basire for Respondent Judgment: 29 August 2013 JUDGMENT OF D GENDALL J [1] The appellant, Mr Marsh, was charged with driving a vehicle in excess of the applicable speed limit of 50 kilometres per hour. After a defended hearing in the District Court on 19 April 2013, two Justices of the Peace found the charge proven. He was fined $200 and ordered to pay court costs of $ [2] The appellant now appeals that decision. Facts [3] On 30 April 2012 the appellant s vehicle was recorded as travelling at 65 kilometres per hour on Harper Avenue, Christchurch, in a 50 kilometre per hour zone by police officers operating a LIDAR laser speed detection device. The appellant was driving when the vehicle was stopped. When stopped, the appellant claimed he was driving at only 53 kilometres per hour. [4] At the hearing in the District Court, the police produced a certificate of accuracy for the LIDAR laser device which was used to measure the speed of the MARSH v NEW ZEALAND POLICE [2013] NZHC 2234 [29 August 2013]

2 appellant s car. The certificate showed that the device had been tested one month before the offence occurred and well within the 12 months statutory timeframe. [5] The hearing before the Justice of the Peace involved two prosecution witnesses, Constable Currie and Constable Kohnke, and one defence witness, the appellant. [6] The Justice of the Peace referred to the evidence of the two police officers relating to the incident and noted the exhibits produced by the prosecution to demonstrate the accuracy of the laser equipment, namely evidence from Constable Currie of his authority to operate speed detection devices, and a certificate of accuracy relating to the LIDAR laser device. [7] In his defence, the appellant contended first that the LIDAR laser was not an approved device; secondly, the log certification was not produced; thirdly, Harper Avenue does not have signs to indicate a 50 kilometre area and the officer in charge did not view any such signs; fourthly the certificate of accuracy submitted regarding the laser was inaccurate in that it had four different names quoted in the various papers; and, finally, that the disclosure document provided to him was in breach of disclosure requirements in that details relating to authorisation of the certificate of accuracy had been blacked out by the photocopying process. [8] The Justices of the Peace rejected these defences advanced by the appellant and concluded that the charge was proven. Grounds of appeal [9] The appeal submissions provided by the appellant appear to outline six grounds of appeal, namely: (a) One of the police officers, Constable Currie, did not give evidence as to what the speed limit in Harper Avenue was;

3 (b) Constable Currie in his evidence did not give the exact name of the laser device which is stated on the certificate of accuracy as a model LIDAR LR, serial No ; (c) The log book produced to prove the calibration of the laser device on the morning of the offence, described the device as a S LIDAR rather than a LIDAR LR or a LIDAR laser. (d) Constable Currie did not produce a certificate of accuracy with regard to the certified speedometer for the patrol vehicle he used to calibrate the LIDAR laser device; (e) Constable Currie had not seen the notice of approval of the device and assumed the Minister of Transport approved the device, whereas the Minister of Police did; (f) The appellant received by way of disclosure a copy of the certificate of accuracy of the LIDAR laser device. During the copying process the sticker with the approving officer s name was blacked out; and (g) The witness, Constable Kohnke, could not remember where the speed signs on Harper Avenue were and the Justices of the Peace inappropriately intervened and asked the constable isn t it a fact that all of Christchurch city the speed limit is 50 kph, except otherwise stated. Discussion [10] A number of the grounds of appeal were arguments raised at the District Court hearing and rejected by the Justices of the Peace. Notwithstanding that, I will deal with each of the grounds of appeal noted in paragraph [9] above.

4 Speed limit on Harper Avenue [11] As to this complaint, it is clear from the material before the District Court that Constable Kohnke, in his evidence in chief, gave evidence that Harper Avenue had a 50 kilometres per hour speed limit. Clearly it was not necessary for Constable Currie to also provide this evidence. [12] Notwithstanding this, before me the appellant also endeavoured to raise contentions over the speed limit in Harper Avenue by referring to a question put to Constable Kohnke in cross-examination as to whether he had checked that a temporary speed limit in Harper Avenue might have applied on the day. The response to this question was that although Constable Kohnke had not done this himself, it was clear to him that he would have been told if there were any temporary alterations to the speed limit by Constable Currie if this had been the case. This did not occur. [13] Next, it is clear that in the District Court the Justices of the Peace accepted the evidence of Constable Kohnke that the Harper Avenue speed limit was 50 kilometres per hour, and I am satisfied that they were entitled to do so. [14] Later in his grounds of appeal noted at paragraph [9](g) above, the appellant endeavoured to raise issues as to what he contended was inappropriate intervention by the Justices of the Peace when they asked the Constable concerned isn t it a fact that all of Christchurch city the speed limit is 50 kph except otherwise stated. In my view this is of little moment. The Justices of the Peace were entitled to question the constable concerned in this fashion. Further, it is clear there is no requirement in law for speed signs to be positioned in particular places on any roadway nor, in my view, in this reasonably built up area of Christchurch city is there any merit in this particular ground of appeal that the speed limit might have been other than 50 kilometres per hour. I reject this ground of appeal. Exact name of laser speed measuring device [15] Here the certificate of accuracy for the laser device stated that the name of the device was a Model LIDAR LR, serial No

5 [16] In his brief of evidence, Constable Currie referred to the device as a LIDAR laser LU but later referred to it as a LIDAR laser. In the District Court, as I understand it, the appellant did not challenge Constable Currie on this point. In my view there can be no question that the device for which the certificate was produced was the same device as that referred to by Constable Currie. [17] Further, in the District Court, the appellant had put to Constable Kohnke that the Police s Laser Speed Service Log Book had referred to an S LIDAR device, not a LIDAR LR. Constable Kohnke, in his evidence, explained that it was the same device and at page 14 of the notes of evidence he noted that the police have two different devices, Pro Lasers and one type of LIDAR device, and the Log Book had made this clear. [18] Again, in my view the LIDAR laser device here was properly identified and, as I see it, there is nothing in this ground of appeal advanced by the appellant. Certificate of accuracy of the speedometer of the police car [19] At the District Court hearing, Constable Currie stated that he had calibrated the laser device the morning of the offence in question using a police car which had a certified speedometer. The appellant now contends that the prosecution were required to produce evidence of the accuracy of the speedometer of the police car used to calibrate the device, but that this did not occur. [20] It is clear, however, from decisions such as Jacques v Police 1 (applied in Dallimore v Police 2 and Hayes v Police 3 ) that the law does not require evidence of any particular testing of the accuracy of a device such as the LIDAR laser device here over and above the certificate of accuracy, which was in fact provided. There is no legal requirement for any testing to be carried out on the day. This would include testing of the nature undertaken here by the police which might voluntarily be carried out at the commencement of each shift Jacques v Police HC Wellington AP105/03, 23 July 2003, Goddard J. Dallimore v Police HC Blenheim CRI , 18 February Hayes v Police HC Dunedin CRI , 22 June 2010.

6 [21] It follows therefore that the evidence here as to calibration of the laser device using the police car and its speedometer was merely additional evidence which simply was not needed to prove the accuracy of the device. [22] As I have noted above, the certificate of accuracy of the laser device was properly provided here and in fact confirmed that the device had been tested one month before the offence in question took place, being well within the 12 months statutory timeframe. [23] There is also nothing in this ground of appeal and it is dismissed. [24] As to the other grounds of appeal advanced by the appellant noted in paragraphs [9](e), (f) and (g) above, I am satisfied that none of these raise valid grounds of appeal. The device clearly had been an approved one properly certified and a copy of the certificate of accuracy was properly provided to the appellant. The fact that during the copying process the sticker with the approving officer s name blacked out is of no moment. The appellant later, on his own admission, received a copy of the certificate of accuracy with the approving officer s name and signature legible. And, finally, I have already dealt with the suggestion that the Justices of the Peace may have inappropriately intervened in the hearing process and thus, to some extent shown bias towards the police. I am satisfied here that was simply not the case. [25] Finally, and for the sake of completeness, I refer to one last matter. [26] Section 146 of the Land Transport Act 1998 provides for the form of evidence required for testing and accuracy of speed measuring devices. The section states that production of a certificate signed by an authorised person in the absence of proof to the contrary is sufficient evidence that the device referred to was tested on the date specified in the certificate and was accurate on the date of the offence. [27] In addition, s 146(3) provides that there is a presumption that the certificate of accuracy has been signed by a duly authorised person unless proof to the contrary

7 exists. In addition any testing of the device must be not more than 11 months prior to the date of the offence s 146(5). [28] On all of these matters, if a defendant wishes to challenge the accuracy of a certificate, he is required to make application to the Court 14 days prior to the hearing and if the Court is satisfied there is good cause, the Court may set aside the certificate and require the accuracy of the device to be established by evidence other than that provided by the certificate s 146(6). Here no such challenge to the accuracy of the certificate was made prior to the District Court hearing. [29] It is clear too that the rules in relation to motor vehicles speeding set out in the Land Transport (Road User Rules) 2004 are public welfare regulatory type offences of strict liability, leaving open only defences of total absence of fault Mackenzie v Civil Aviation Department. 4 [30] Once a speeding offence has occurred and is proven, an appellant would need to establish that he had done everything a reasonably careful and competent driver could reasonably be expected to have done in the circumstances Aldwell v Police. 5 [31] In the present case, even on his own evidence before the District Court, the appellant contended that he was travelling at 53 kilometres per hour (rather than the 65 kilometres per hour shown in the LIDAR laser device test). Therefore it is not possible, as I see it, for the appellant to advance a defence here based on total absence of fault. In addition, in his evidence before the District Court the appellant acknowledged that I can t say that my speedometer is as accurate as any police vehicle that s tested for accuracy can I? [32] I am satisfied therefore that in all the circumstances, even if the appellant had applied to have the certificate of accuracy for the LIDAR laser device set aside before the District Court hearing in terms of s 146(6) of the Act, the Court would not have found good cause to do so. 4 5 Mackenzie v Civil Aviation Department [1983] 1 CRNZ 38 (CA). Aldwell v Police [2006] 23 CRNZ 252.

8 [33] For all the reasons outlined above the present appeal cannot succeed. It is dismissed.... D Gendall J Solicitors: Raymond Donnelly & Co, Christchurch Copy to Appellant