IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY CRI-2015-488-000048 [2016] NZHC 162 BETWEEN AND DAVID KEITH SILBY Appellant NEW ZEALAND POLICE Respondent Hearing: Appearances: 11 February 2016 (By AVL) Appellant in Person J W Wall for Respondent Judgment: 15 February 2016 JUDGMENT OF VENNING J This judgment was delivered by me on 15 February 2016 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar Date Solicitors: Copy to: Crown Solicitor, Whangarei Appellant SILBY v NZ POLICE [2016] NZHC 162 [15 February 2016]
Introduction [1] On 4 November 2015 following a hearing before Judge A J Becroft in the District Court at Dargaville Mr Silby was convicted on a charge of using a mobile phone while driving and a charge of driving at less than the minimum stopping distance for the speed. 1 Mr Silby had not appeared at the hearing. He was fined $80 for the use of the mobile phone while driving and $150 for following too close. In addition Mr Silby was ordered to pay Court costs of $130. [2] Mr Silby now appeals against conviction and sentence. Background [3] Shortly after 8.10 am on the morning of 31 March 2015 Detective Bailey was in an unmarked police car travelling west on State Highway 14 towards Dargaville. The Detective noticed a Mazda car, registration CUP664, coming towards him on State Highway 14. The Detective gave evidence that the Mazda was following directly behind a logging truck with less than a car s distance between it and the truck travelling at approximately 50 km/h. The Detective observed the driver had his left hand on the steering wheel, and in his right hand was a mobile phone which he had to his right ear. The driver appeared to be talking on the phone and at the same time leaning to the right to see if it was clear to pass the truck in front. The Detective turned his car around, came back and pulled the Mazda car over using lights and sirens. The Detective established that Mr Silby was the driver of the Mazda car and issued him with an infringement notice for both offences. Preliminary point Mr Silby s non-attendance on 4 November 2015 [4] Mr Silby failed to pay the infringement and was given notice of a hearing in the District Court at Dargaville for 1 October 2015. On that day he entered a not guilty plea and was remanded at large to 4 November 2015 at 10.00 am for a fixture. On 4 November Mr Silby did not appear. The Judge proceeded under s 119 of the Criminal Procedure Act 2011 (CPA) in his absence. 1 NZ Police v Silby [2016] NZDC 25869.
[5] In his notice of appeal Mr Silby did not address his non-appearance. Before the Court he explained that he made a mistake with the day and went to the Court on 5 November 2015 rather than 4 November. The explanation for not attending Court on the proper date is not a compelling one. Parties before the Court have an obligation to attend at the correct time. [6] Mr Silby seeks to adduce further evidence by way of an affidavit for the purposes of the appeal. The affidavit contains: (a) (b) (c) uncontested evidence; legal submission; contested evidence. [7] The uncontested evidence is to the effect that Mr Silby was stopped by the Detective. The Detective was in an unmarked police car, was not in uniform and did not produce his warrant. That is accepted by the Police. [8] The legal submissions are as to the authority of the Detective, a point to which I return. [9] The contested evidence is as to whether Mr Silby admitted both charges as the Detective said and the speed suggested in the infringement notice. Mr Silby says the 50 to 60 km/h estimate could not have been valid as at that speed the logging truck would have tipped its load. It would have been impossible to be doing that speed in the first place. To support his argument Mr Silby produced photographs he had taken of his car s speedo when following logging trucks on other occasions. [10] I declined to admit the further evidence Mr Silby seeks to have produced regarding the speed at which he was travelling and of the discussion with the Detective. [11] Section 335 of the CPA applies in relation to an application to adduce fresh evidence at the appeal stage. The test for the admission of further fresh evidence is
established in Bain v R and Lundy v R 2 where the Privy Council endorsed the approach set out by Tipping J in R v Bain: 3 [22] An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is: (a) sufficiently fresh; and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice. The stronger the further evidence is from the appellant's point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled. [26] It can therefore be seen that there are in substance three screens or controls which the Court applies in a further evidence case. The first is concerned with freshness, the second with credibility, and the third with whether the new evidence is such that it might reasonably have led to a finding of not guilty if called at the trial. If the appellant can satisfy the requirements inherent in each of these three controls, the question whether the further evidence does lead to a reasonable doubt is a question not for the appellate Court but for a new [court] at a second trial [12] The evidence in this case is not sufficiently fresh because it could have, with reasonable diligence, in other words if Mr Silby had attended Court on the right day, been called. Nor is it sufficiently credible or compelling. The photographic evidence he seeks to produce to challenge the speed he was driving was taken on different days. It is of no evidentiary value. Further the offence is a breach of the Land Transport (Offences and Penalties) Regulations 1999 4 which is an offence of driving at less than the minimum stopping distance for the speed travelled. The precise speed is not crucial. The Detective s evidence which was tested by the Judge was that Mr Silby was directly behind the logging truck with less than a car s distance between him and the truck. Even at 30 or 40 km/h Mr Silby would not have been able to stop. [13] Next, Mr Silby s evidence as to the exchange with the Detective is not relevant to the conviction. Importantly, during the course of his submissions to the Court Mr Silby acknowledged that he had not requested the officer for evidence of his authority. 2 3 4 Bain v R [2007] UKPC 33; and Lundy v R [2013] UKPC 28 at 116 118. R v Bain [2004] 1 NZLR 638. Land Transport (Road User) Rule 2004, cl 5.9(4), Schedule 1 to the Land Transport (Offences and Penalties) Regulations 1999.
[14] Even though Mr Silby was not present the Judge asked the type of questions one would have expected to be put to the Detective in cross-examination. [15] For those reasons I decline to admit the further evidence. The interests of justice do not support it. Finality is also an important consideration. [16] The real issue in the appeal is Mr Silby s challenge to the authority of the officer. The relevant provisions in relation to that are ss 113 and 114 of the Land Transport Act 1998. It is convenient to refer to s 114 first. As relevant, that section provides: 114 Power to require driver to stop and give name and address, etc (1) An enforcement officer who is in uniform, or wearing a distinctive cap, hat, or helmet, with a badge of authority affixed to it, may signal or request the driver of a vehicle to stop the vehicle as soon as is practicable. (2) An enforcement officer in a vehicle following another vehicle may, by displaying flashing blue, or blue and red, lights or sounding a siren, require the driver of the other vehicle to stop. (2A) Subject to subsections (4) and (5), the driver of a vehicle that is stopped by an enforcement officer under this Act must remain stopped for as long as is reasonably necessary for the enforcement officer to complete the exercise of any powers conferred, or duties imposed, on an enforcement officer by this Act. (3) An enforcement officer may require the driver of a vehicle that is stopped under this Act to (a) (b) remain stopped for as long as is reasonably necessary for an enforcement officer to obtain the particulars referred to in paragraph (b), or to complete the exercise of any other power conferred on an enforcement officer by this Act; and on demand by an enforcement officer, (i) (ii) (iii) give his or her full name, full address, date of birth, occupation, and telephone number, or such of those particulars as the enforcement officer may specify; and state whether or not he or she is the owner of the vehicle; and if the driver is not the owner of the vehicle, give the name and address of the owner or such particulars
within the driver s knowledge as may lead to the identification of the owner. [17] Mr Silby relied on s 114(1). He submitted the Detective had no authority to require him to stop because he was not in uniform and was not wearing a cap, hat or helmet. That is not disputed. However, Mr Silby was not stopped by the Detective under s 114(1). Mr Silby was stopped by the Detective under s 114(2). The Detective was an enforcement officer in an unmarked police car following Mr Silby s car. The Detective stopped Mr Silby s car by displaying the flashing red and blue lights. The Detective said he also used a siren. In submission to the Court Mr Silby said he did not recall the siren, but whether the siren was used or not the section is clear that the officer was entitled to stop Mr Silby s car by use of the flashing lights. Mr Silby s car was stopped pursuant to the authority under s 114(2). [18] Section 114(3) then provided authority for the Detective to require Mr Silby to provide his particulars, namely his name and address. In this case I understood from Mr Silby s submissions to the Court that he produced his licence to the officer. The officer s evidence, in answer to a question from the Court as to where he got the details about Mr Silby from, was that: He would ve given them to me and there would ve been some details I would ve obtained from the police national intelligence application. [19] So the short point is that the officer was entitled and authorised to stop Mr Silby under s 114(2) and Mr Silby was required to provide details to the Officer under s 114(3). [20] As discussed with Mr Silby during the course of the hearing an example of the use of the authority under s 114(1) would be where a police officer is standing in the road at a random breath alcohol testing point. [21] The prosecution does not rely on s 113 in this particular case. Section 113(1) requires the officer to be in possession of a warrant to enforce the provisions of the Act. Mr Silby accepted in submissions before the Court on appeal that he had not asked the officer for his warrant. I am prepared to accept or infer that the Officer
was in possession of a warrant at the time and would have produced the same if Mr Silby had asked him to do so. 5 There is no reason to suggest otherwise. [22] Further, in this case the offending had occurred prior to the Officer exercising his authority to stop Mr Silby. The prosecution was based on the Officer s observations of Mr Silby using the cellphone while driving and driving too close to the rear of the logging truck in front of him. That evidence was admissible even if s 113 was not complied with. The only additional information obtained by the officer was Mr Silby s details. But he was obliged to provide those under s 114. [23] The appeal against conviction is dismissed. Sentence [24] Given that Mr Silby was not present the Judge only imposed as fines the same amount as the infringement fee. There is no basis to challenge that aspect of the sentence. [25] Mr Silby did initially challenge the additional demerits incurred for use of the cellphone but I understood him to accept that was not imposed by the District Court Judge following conviction but rather followed as a matter of course administratively. It is not a matter that this Court can interfere with on appeal. [26] The appeal against sentence is also dismissed. Venning J 5 Spiekerman v NZ Police HC Wellington, 27 September 1999.