WILSON v NEW ZEALAND POLICE [2022] NZHC 1458

WILSON v NEW ZEALAND POLICE [2022] NZHC 1458 [22 June 2022]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2022-419-20[2022] NZHC 1458BETWEEN WARREN WILSONApplicantAND NEW ZEALAND POLICERespondentHearing: 15 June 2022Appearances: Applicant in personB Harris for RespondentJudgment: 22 June 2022JUDGMENT OF HARLAND J[on application for leave to appeal and appeal]This judgment was delivered by me on 22 June 2022 at 12 noon.Registrar/Deputy RegistrarDateSolicitors:Hamilton Legal, HamiltonIntroduction[1] The applicant, Mr Warren Wilson, has applied for leave to appeal a decision ofJudge S Clark on 28 February 2022. Judge Clark's decision was made in relation toan appeal by Mr Wilson against the decision of Community Magistrate Bourke. MrHarris, for the respondent, agrees that leave should be granted, the appeal allowed, andthe matter remitted back to the District Court. Although the outcome has been agreed(and appropriately so), because of the background I set out below, I consider itnecessary to outline my reasons for granting leave and allowing the appeal more fullythan might otherwise be required.Background[2] On 12 November 2020, Mr Wilson was driving his Yamaha motorcycle northof State Highway 1 Karapiro, just to the south of Cambridge in the Waikato. Thespeed limit in this area is 100 kilometres per hour, but he is alleged to have driven pasta Police radar at 131 kilometres per hour. When spoken to by the Police, he is allegedto have stated that his speedo cable was broken.[3] The charge concerned is an infringement offence. Mr Wilson was issued withan infringement notice. He takes issue with the accuracy of the device used to recordthe speed of his vehicle.[4] After receiving the infringement notice, Mr Wilson advised the Police that hewished to defend the charge. It should therefore have been set down for a defendedhearing in the Hamilton District Court before a Community Magistrate1, however, thisdid not occur. Instead, the fine included in the infringement notice was treated as anunpaid fine.[5] Mr Wilson then successfully applied for the proceeding to be reinstated in theDistrict Court.1 Criminal Procedure Act 2011, s 356(1)(d).[6] Section 146 of the Land Transport Act 1998 (LTA) sets out the process bywhich the evidence of a speed measuring device is provided to the court:146 Evidence of testing and accuracy of speed-measuring devices, etc(1) In proceedings for a speeding offence against any bylaws orenactment, any other offence against this Act, or an offence againstthe Road User Charges Act 2012 (or any regulations made under thatAct), the production of a certificate (or a document purporting to be acopy of the certificate) purporting to be signed by a constable or Policeemployee who is not a constable authorised for the purpose by theCommissioner or by a person authorised for the purpose by theAgency, as to the testing and accuracy of any equipment or device towhich this section applies that is referred to in the certificate, is, in theabsence of proof to the contrary, sufficient proof that the equipmentor device referred to was tested on the date specified in the certificateand was accurate on the date of the alleged offence.(2) Every document purporting to be a copy of a certificate issued underthis section is, in the absence of proof to the contrary, to be presumedto be a true copy.(3) Every certificate issued under this section is, in the absence of proofto the contrary, to be presumed to have been signed by a person dulyauthorised to sign it; and it is not necessary for any such certificate toshow on its face that the person signing it was so authorised.(4) This section applies to distance-measuring devices, speed-measuringdevices, approved vehicle surveillance equipment, and tuning forksused to check such devices or equipment.(5) The fact that any equipment or device to which this section applieswas tested before or after the date of the alleged offence does not ofitself affect the validity of any certificate given under this section inrelation to the testing of that equipment or device. However, anytesting must not be more than 12 months before the date of the allegedoffence.(6) In any proceedings where a certificate has been produced under thissection, the court may, on application made not less than 14 daysbefore the hearing of the charge concerned, and if satisfied that thereis good cause to do so, set aside the certificate and require the accuracyof the equipment or device to be established by evidence other thanthe certificate.[7] On 24 August 2021, Mr Wilson filed and served an application under s 146(6)of the LTA, seeking to set aside the certificate in relation to the testing and accuracyof the device used to record the speed at which he is said to have been travelling. Inaddition, on 9 December 2021, Mr Wilson applied under s 30 of the CriminalDisclosure Act 2008 for a copy of the information the Police had about the accuracytest in relation to this device.[8] Mr Wilson's applications were placed in front of Community MagistrateBourke in chambers. He issued a minute recording the following decision:This matter was referred to me today in chambers. I have read Mr Wilson'sapplication.1. Application to set aside certificates of accuracy is declined. He doesnot raise any novel issues that have not already been argued in Courtbefore. Even on his own argument and offence of exceeding the speedlimit could be made out on papers even with his own worse case(accuracy/uncertainty) argument.2. The disclosure request is declined. The devices have been held by HighCourts to be "notoriously reliable: and the certificates are all that Courtrequires."Please advise Mr Wilson of my above decision and advise him that he will notbe able to raise them at the hearing.[9] The date of this decision is not clear from the file; however, the documentationfiled by Mr Wilson reveals that he received an email advising him of it on 1 February2022.[10] Mr Wilson appealed the Community Magistrate's decision to the DistrictCourt.[11] The appeal was placed before His Honour Judge S Clark in chambers. Heissued the following minute on 28 February 2022:1. The decision of CM Bourke appears to have been made without hearingfrom Mr Wilson or the Police. Mr Wilson should have been given theopportunity to at least orally raise his arguments before the CommunityMagistrate.2. If the Police agree then the section 146(6) [sic] Land Transport Act anddisclosure issue should go back before a Community Magistrate todecide, preferably before a different Community Magistrate.3. If the Police do not agree the application for Leave/Appeal will need tobe set down before any District Court Judge.[12] It appears that the Registry then advised:As instructed by Judge S Clark under point 3, I have consulted the PoliceProsecutor and his response is below."I would tend to agree with Judge S Clark and have theapplication re-heard in the CM jurisdiction in order for partiesto present their case on the application under s 146(6)."Nigel Wolland LLB/BComSubsequently we can offer a Pre-Trial Hearing on Tuesday 19 April 2022, atHamilton District Court, commencing at 10am before Community MagistrateMascelle. Can you please confirm by return if you wish to proceed with thisPre-Trial.[13] It is not clear to me if the last paragraph referred to above was sent to MrWilson and if it was, when it was sent. Mr Wilson says did not receive a copy of theJudge's the actual decision until 28 March 2022, although he accepts he may havebeen notified of it earlier, possibly on 2 March 2022.2 However, Mr Wilson was notconsulted about the hearing date. He says he was advised of the date on 8 April 2022,four working days before the scheduled hearing.[14] At this point, Mr Wilson appealed Judge Clark's decision to this Court.Legal principles[15] Section 223 of the Criminal Procedure Act 2011 provides:223 Right of appeal against determination of first appeal court(1) The defendant or the prosecutor may, with the leave of the secondappeal court, appeal to that court against the determination of anappeal under section 215 or 217.(2) The defendant may, with the leave of the second appeal court, appealto that court against the determination of an appeal under section 218.(3) 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 occur unlessthe appeal is heard.2 Mr Wilson's application for leave to appeal to this Court refers to the date as "3/2/22", however,this cannot be correct as the Judge's decision was not made until 28 February 2022.[16] The threshold for a "matter of general importance" may be met where theproposed appeal gives rise to an issue of general principle or of general importance inthe administration of the criminal law by the courts.3 In R v Kuru, the Court of Appealheld that this threshold is met where the proposed appeal raises an important questionof law that has broad application beyond the circumstances of the particular case.4There is no prescriptive approach to determining whether a "miscarriage of justice"may have occurred or may occur unless the appeal is heard.5 This limb may besatisfied by an argument reasonably available that the court below is in error, althoughnot every error will give rise to a miscarriage.6[17] The requirement that the court is "satisfied" invites the court to evaluate allrelevant matters and reach a judgment as to whether or not it is satisfied.7[18] There is an overlap between the factors relevant to granting leave to appeal,and allowing the appeal. Both involve a consideration of whether there has been amiscarriage of justice.8Discussion[19] Mr Wilson's appeal to the District Court against the Community Magistrate'sdecision is one that engages matters of substance and procedure. He challenges thefact he was not given an opportunity to be heard in relation to his application under s146(6) of the LTA, and he also challenges the substance of that decision.[20] In relation to his appeal to the District Court, Mr Wilson was entitled to beheard about any administrative decisions which might impact on his appeal. He wasnot given an opportunity to be heard in relation to the process adopted by the Judge.Neither was Mr Wilson given an opportunity to challenge the substantive findings ofthe Community Magistrate in relation to his s 146(6) application and disclosure onappeal, given the process adopted.3 Simon France (ed) Adams on Criminal Law – Criminal Procedure (online looseleaf ed, ThomsonReuters) at [CPA223.03].4 See R v Kuru [2015] NZCA 414 at [7].5 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [37].6 At [37]–[38]. Approach affirmed in Robertson v R [2015] NZCA 7 at [53]–[55].7 At [42]. See D'Esposito v Ministry for Primary Industries [2019] NZCA 518 at [17]–[22].8 Khan v New Zealand Police [2018] NZHC 310.[21] Any findings made by a District Court Judge on appeal in relation to theseapplications would be binding on the Community Magistrate tasked with subsequentlyhearing the charge. Given the nature of the argument advanced by Mr Wilson, it islikely these matters are more appropriately determined by a District Court Judge, butregardless, Mr Wilson is entitled to have his appeal heard in the District Court if thatis what he wishes to do.[22] It is difficult for me to assess whether Mr Wilson's application under s 146(6)involves a matter of general or public importance, however, Mr Harris accepted thatthe argument was novel and therefore, I infer, arguable. However, I am satisfied thata miscarriage of justice has occurred because Mr Wilson was not given an opportunityto advance the substance of his appeal and the process that should be followed inrelation to it.[23] For these reasons, leave to appeal is granted, as is the appeal.Result[24] The application for leave to appeal and the appeal having been granted, thematter is remitted back to the District Court for the hearing of the appeal by Mr Wilsonagainst the decision of the Community Magistrate.Harland J