WARD v COCKRELL CA410/2013 [2014] NZCA 14

CARVER v NEW ZEALAND POLICE [2013] NZHC 3469 [18 December 2013]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYCRI-2013-412-000030[2013] NZHC 3469PAUL ERIC CARVERvNEW ZEALAND POLICEHearing: 18 December 2013Counsel: Appellant in personM J Grills for RespondentJudgment: 18 December 2013JUDGMENT OF PANCKHURST J[1] On Waitangi Day, 6 February 2013 Mr Carver was driving a 49 seat bus between Alexandra and Clyde at about 5.15 pm. The speed of the bus was checked by a police radar device. It was travelling at 105 kilometres per hour.[2] The constable, Constable McRitchie, spoke to Mr Carver who was candid. He said he had already received an infringement notice earlier in the day near Waihola. He added that he was mystified because the company for whom he worked had a practice in relation to the speedometer dials on its buses. Those dials showed miles per hour on an inner circle and kilometres per hour on an outer circle. In addition, however, mechanics employed by the company had made twink marks outside the kilometre circle which, according to Mr Carver, were more accurate and gave a correct indication of the actual travelling speed of the vehicle.[3] Accordingly, he defended both of the infringement notices issued on this day. In relation to the first notice there was a defended hearing before Justices of thePeace sitting at Dunedin in August, and in relation to the second notice a defended hearing at the Alexandra District Court in September. On both occasions the gist ofMr Carver's evidence was that there must have been some mechanical alteration made to the bus which affected its actual speed of travel and created a variance between the twink marks and the true speed at which the vehicle was travelling.[4] In relation to the Waihola infringement notice, Mr Carver was clocked at 100 kilometres per hour on a radar device, whereas the speed limit for this type of heavy vehicle is 90 kilometres per hour. In the course of his evidence, however, Mr Carver candidly conceded that he thought at the time he was probably driving at about 95 or 96 kilometres per hour because of a passing manoeuvre.[5] Lang J heard the appeal against the Justices' finding when evidence similar tothat repeated at the Alexandra hearing fell for consideration. The Judge noted concessions made by Mr Carver in the course of his evidence that he was travelling at about 96 kilometres per hour and therefore concluded that regardless of thedefence advanced, conviction was "inevitable".[6] Nonetheless he continued on to say this:1Even if conviction was inevitable, however, I consider that the consequences of the conviction have proved to be disproportionate to the gravity of the offending. Mr Carver advised me that he received demerit points for other infringements incurred while acting in his duties as a bus driver for his former employer. One of these was for operating a cellphone in circumstances where he needed to obtain urgent confirmation from his employer as to the whereabouts of another bus. The present conviction means that he will incur demerit points that will automatically disqualify him from driving for a period of three months. I consider that would be a disproportion consequence to the gravity of his offending on 6 May 2013. For that reason, I am satisfied that the appeal should be allowed.Lang J then ordered that there be a discharge without conviction pursuant to s 106 of the Sentencing Act 2002.[7] Before I turn to the evidence relevant to the second infringement notice, I should note that the present offence is one of strict liability. In order to escape1 Carver v New Zealand Police [2013] NZHC 2812 at [9].conviction a driver must show that the offending speed occurred in a situation where there was an absence of fault on his or her part.[8] Here, Mr Carver advanced that he had relied upon the twink mark system for an extended period of some years and found it invariably accurate. He had consulted with his employer, and presumably the mechanics, but no explanation had been forthcoming to explain why there was a variance between the actual speed of travel and the speed indicated by the twink marks. He could only put it down to a change in the tyre widths on the bus, or work on the differential, since there had been problems of that nature. In the course of argument, Mr Carver explained that it was this unknown mechanical work which must have caused the inaccuracy in relation to the twink marks and because he was completely unaware of this he could establish a total absence of fault.[9] Turning to the evidence in relation to the second infringement notice, Mr Carver was approaching Clyde Hill. He was checked by radar at 105 kilometres per hour. As I have already noted he candidly told the constable that this was the second infringement notice this day, asked him to look at the markings on the speedo and explain his concern in terms similar to what I have just outlined.[10] In effect, the argument was that he had been unwittingly misled into driving at an excessive speed. In this instance as well, however, there was a problem. Under cross-examination Mr Carver conceded that he believed at the time his speed was about 95 or 96 kilometres per hour since he was approaching the Clyde Hill and needed momentum for the climb. So in that regard his evidence at both hearings was similar, he knew he was travelling a little over the limit, but of course he denied that he had any appreciation he was exceeding the limit in this instance by fully 15 kilometres per hour. As I understand it, I am effectively being asked to adopt a similar approach to that taken by Lang J.[11] Given the concessions in cross-examination, it was open to the Justices on that evidence alone to come to the conclusion that the infringement was proved on the evidence. As Lang J put it, an adverse finding was inevitable, not only in the first case but equally in the second. So the issue is whether I should follow the leadtaken by my brother Judge and also grant a discharge without conviction in relation to this second infringement notice.[12] I am not persuaded that that is an appropriate course of action. By the time of this infringement, Mr Carver was on notice that there was a problem in relation to the twink marks and their reliability. I am not therefore of the view that there is scope to conclude that entry of a conviction would be wholly disproportionate to the gravity of the offending. On his own evidence, Mr Carver was marginally exceeding the limit, although he may have escaped an infringement notice, if indeed he was travelling at 95 or 96 kilometres per hour. But travelling at 105 kilometres per hour, with knowledge that the twink marks were not accurate, indicates a level of offending which to my mind would make it inappropriate to grant a discharge.[13] For these reasons the appeal is dismissed.Solicitors:Wilkinson Adams, Dunedin