LOH v NEW ZEALAND POLICE [2019] NZHC 1904

LOH v NEW ZEALAND POLICE [2019] NZHC 1904 [6 August 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2019-485-40[2019] NZHC 1904BETWEEN ALEXIS KAYE LOHApplicantAND NEW ZEALAND POLICERespondentHearing: 6 August 2019Counsel: A K Loh in personM L Paish for CrownJudgment: 6 August 2019JUDGMENT OF CHURCHMAN JIntroduction[1] The applicant, Ms Alexis Loh, seeks leave for a second appeal againstconviction to the High Court against a decision of Judge Sygrove in the PoriruaDistrict Court dated 18 April 2019.1 She does so on the following grounds:(a) that the Judge erred in his assessment to such an extent that amiscarriage of justice has occurred; and(b) that the Judge was biased in favour of the Police.[2] The respondent opposes the application, contending that no matter of generalor public importance arises, nor will a miscarriage of justice occur if the appeal is not1 New Zealand Police v Loh [2019] NZDC 9753.heard. The respondent submits that the Judge correctly applied the provisions of s 232of the Criminal Procedure Act 2011 (the CPA) and carefully considered the evidence.Background[3] Early in the evening of 8 April 2018, Ms Loh was driving north on a section ofState Highway 1 where a temporary speed limit of 70 km/h has been in place for abouttwo years. She was pulled over for driving at excess speed, the Police officerinforming her that she had been driving 30 kilometres over the temporary speed limit.He showed Ms Loh her speed on the radar, they spoke, and he issued her with aspeeding ticket. An infringement notice was subsequently issued dated 13 April 2018and was posted to Ms Loh.[4] Ms Loh challenged this infringement notice and appeared before two Justicesof the Peace on 31 October 2018. They noted that the charge was a strict liabilityoffence and found that Ms Loh did exceed the temporary speed limit and that thecharge had been proven beyond reasonable doubt.2 However, in doing so, theyincorrectly stated that Ms Loh, having inspected the radar equipment, accepted thatshe was travelling at 100 km/h. Rather, her evidence was that she accepted she hadbeen advised by the officer that she had been travelling 30 km/h over the posted speedlimit, but she did not accept that she was travelling at that speed.[5] She appealed this decision on the basis that evidential requirements were notmet, evidence was improperly obtained, and the minimum standards of criminalprocedure were breached. She argued that, accordingly, there had been a miscarriageof justice. Her claims were not accepted by the District Court Judge and her appealwas dismissed.District Court decision[6] In terms of evidential requirements not having been met, the Judge noted that,in the decision of the Justices of the Peace, they said that exhibits were produced tothe Court, including the radar logbook, certificate of the radar device, daily testing2 New Zealand Police v Loh DC Porirua CRN-18091105348, 5 November 2018 at [12] and [14].schedule of the radar, the officer's certificate of competency, and a copy of the NZTAapproved traffic management plan for the area.3[7] As to the evidence having been improperly obtained, it was noted that Ms Lohtook issue with the vehicle used having been an unmarked car and argued that the radardevice did not identify her vehicle as being the one driving in excess of the limit,saying that there were other vehicles around at the time.4 The Judge noted, though,that the officer had been quite certain in his evidence that Ms Loh's vehicle was theonly one which could have activated his radar device and concluded that "because heis an experienced officer, [he] would not say that if it was not correct".5[8] With regard to the conduct of the Justices of the Peace, while Ms Lohcomplained that they interrupted her continuously, the Judge states that the sergeantbefore him on that day told him she had no recollection of such behaviour.6[9] A review of the transcript of the hearing before the JPs shows that Ms Loh wasquestioned by the JPs about the relevance of some of her questions during her cross-examination of Sgt Vautier and asked some questions of clarification but there wasnothing that could be accurately described as "continuous interruption". She was alsoquestioned by the JPs at the end of her evidence-in-chief but was not interrupted duringthe giving of her evidence.[10] In determining whether there had been a miscarriage of justice, the Judge hadthis to say of the Justices of the Peace:[13] Justices of the Peace are not trained lawyers or Judges. Justices of thePeace are responsible members of society who give up their time to hear casesthat are at the lower end of severity so far as the criminal justice system isconcerned. They are laypeople who have a good handle on people who giveevidence. They are senior members of society.[11] The Judge found nothing in their decision to indicate that there had been anunfair trial or that the trial was a nullity.3 New Zealand Police v Loh, above n 1, at [4].4 At [5].5 At [6].6 At [9].[12] The appeal was dismissed.Relevant law[13] This application is made pursuant to s 237 of the CPA which provides asfollows:237 Right of appeal against determination of first appeal court(1) A convicted person may, with the leave of the second appeal court,appeal to that court against the determination of the person's firstappeal under this subpart.(2) The High Court or the Court of Appeal must not give leave for asecond appeal under this subpart unless satisfied that—(a) the appeal involves a matter of general or public importance;or(b) a miscarriage of justice may have occurred, or may occurunless the appeal is heard.[14] In McAllister v R, it was confirmed that the threshold set by s 237 is a highone.7 The test under the first limb of s 237(2) will, for example, be met where theproposed appeal gives rise to an issue of "general principle or general importance inthe administration of the criminal law by the Courts".8 The question must have broadapplication beyond the circumstances of the particular case.9 The threshold under themiscarriage of justice limb is similarly high and not every error will give rise to amiscarriage.10Discussion[15] Ms Loh, in her written submissions did not submit that a question of generalor public importance arose, but in her oral submissions claimed this is so. While thismatter is clearly of importance to Ms Loh, I have not been able to identify any legalquestion of general or public importance that would justify leave being granted for asecond appeal.7 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.8 At [36], quoting Keenan v R [2005] NZSC 63 at [5].9 At [36].10 At [38].[16] Ms Loh also submits that a miscarriage of justice will occur if leave is notgranted. She takes issue with aspects of the evidence and further argues that the Judgeon the first appeal was biased.Improperly obtained evidence[17] The applicant has three concerns around evidence that she says was improperlyobtained. First, she notes that the Judge said that she had accepted that she wastravelling at 100 km/h after having inspected the radar equipment, basing this on thedecision of the Justices of the Peace where they took her having looked at the radarequipment speed detector to mean that she must, therefore, accept that she was drivingat that speed. She says that she had consistently questioned the validity of thisassumption throughout the process.[18] The Judge did err in saying that Ms Loh had accepted she had been speedingbut, as Ms Paish for the respondent submitted, not every error amounts to amiscarriage11 and in light of all the other evidence before the Court, the error in thiscase did not create a real risk that the outcome of the trial was affected. The facts ofthe case were thoroughly traversed before the Justices of the Peace who were presentedwith sufficient evidence that the infringement offence had taken place. The Policeofficer had given evidence of locking his radar on to Ms Loh's vehicle and obtaininga reading of a speed of 100 km/h. He also specifically confirmed that his radar beamcould not have picked up any other vehicle.12[19] Ms Loh gave evidence that she was unaware of the 70 km/h temporary speedrestriction on this section of the motorway. She also acknowledged being shown theradar screen and seeing the numbers 70 and 100 displayed on it. The police officergave evidence that the 100 km/h displayed on the radar was recorded in the temporaryrestricted speed zone. The JPs were entitled to accept that evidence, as was the DistrictCourt Judge on appeal.11 McAllister v R, above n 8, at [38].12 Police v Loh CRI-2018-091-1226, notes of evidence of hearing before JPs, p 22 line 31 to p 23line 3.[20] Secondly, Ms Loh argues that the exhibits presented to the Court wereinsufficient to prove the infringement offence had occurred. However, the sufficiencyof the evidence was thoroughly traversed in the first appeal and a second appeal shouldnot be used as an opportunity to revisit the same material.[21] Finally, Ms Loh argues that the Police officer failed to adhere to practice notesregarding cautioning a person during questioning and recording an admission wherethere was none. She says that her agreeing to have a look at the radar when asked todo so by him appears to have been taken as an admission of guilt and subsequentfindings by decision makers appear to be predicated on this admission which she hasconsistently challenged.[22] Ms Paish responds by pointing out, first, that this matter was not raised at thefirst appeal and, second, the Police officer was speaking to Ms Loh in respect of aninfringement offence only, with the Court entitled to rely on the thorough evidence heprovided before the Justices of the Peace to determine the manner in which theprocessing took place and the comments which were made at the time by Ms Loh.[23] I accept Ms Paish's submissions on this issue. A police officer stopping adriver for speeding is not required to caution that individual before speaking with himor her.[24] There was an assumption underpinning Ms Loh's submissions that because shewas not at fault (in the sense that she did not know of the temporary speed restrictionof 70 km/h because she had not noticed the signs), she should not have been convicted.However, fault, in the sense of deliberate action undertaken intentionally, is not arequired element of this offence. If the prosecution establishes that the defendant wastravelling at 100 km/h in a 70 km/h restricted area (which I am satisfied wasestablished here), that is all that is required. Whether the defendant noticed therestricted speed limit signs or not is irrelevant.Bias[25] Ms Loh complains that the Judge, in summing-up, pointed out that there werediscrepancies between the two parties and then based his decision on the belief thatthe prosecution's statements were the truth. She submits that this was done withoutallowing her the chance to reply, nor was there an evidence-based reason set out forthe preferential acceptance of the statements. Ms Loh contends that the manner inwhich evidence was collected was neither fair nor transparent, the statement given bythe Police officer was disputed and his erratic behaviour left unexplained whichundermines the credibility of his evidence.[26] Ms Paish does not accept Ms Loh's contentions, responding that the Judgespecifically considered Ms Loh's allegations in respects of the evidence and about theconduct of the Justices of the Peace, and determined that here had not been amiscarriage of justice. She submits that the Judge did not accept there had beeninappropriate conduct by the Justices of the Peace and that he was entitled to seekinformation from the prosecuting Police officer, noting her experience and underlyingobligation to the Court. Ms Loh's argument had been advanced in the first appellateCourt and traversed fully before being rejected and it is submitted that no furthermaterial has been advanced to justify the reconsideration of this issue.[27] It is my view that there is nothing to suggest that the Judge was biased. Hegave Ms Loh the opportunity to present her arguments, considered them, and wherethere was contrasting evidence, preferred that of the experienced Police officer.Ultimately, he determined that these was nothing amiss in the decision of the Justicesof the Peace such as to suggest there had been a miscarriage of justice.Result[28] For the reasons given above, no matter of general or public importance arises,nor does there appear to have been any miscarriage of justice. The high threshold setby s 237 of the CPA has not been met.[29] Accordingly, this application for leave for a second appeal is declined.Churchman JSolicitors:Crown Solicitor's Office, Wellington for Crowncc A K Loh