WILLIS V NEW ZEALAND POLICE HC AK CIV 2005-404-267

WILLIS V NEW ZEALAND POLICE HC AK CIV 2005-404-267 3 October 2005IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-267BETWEEN WILLIAM WILLIS Appellant AND NEW ZEALAND POLICE Respondent Hearing: 3 October 2005 Appearances: AGFC Bouchier for Appellant H P Retzlaff for Respondent Judgment: 3 October 2005(ORAL) JUDGMENT OF HEATH JSolicitors: Crown Solicitor, PO Box 2213, Auckland Counsel: AGFC Bouchier, 85 Ranfurly Road, Epsom, Auckland[1] Mr Willis appeals against a decision made by Justices of the Peace sitting in the District Court at Pukekohe on 20 May 2005. Mr Willis had been charged with travelling in excess of 80 km/h whilst towing a vehicle. The incident occurred at about 3pm on Boxing Day 2004. [2] Mr Bouchier, for the appellant, raised a number of questions concerning the way in which the hearing was conducted. He referred to s25 of the New Zealand Bill of Rights Act 1990; in particular, to the right to be presumed innocent until proven guilty of an offence. He referred also to other requirements in relation to conducting a fair hearing. [3] It is unnecessary for me to embark upon consideration of the wider issues raised by Mr Bouchier in this judgment. Despite forceful submissions from Mr Retzlaff, in opposition to the appeal, I am satisfied that the appeal can be resolved on a narrow point. [4] In giving their decision, the Justices referred to the fact that they had heard evidence from one Police witness and from the defendant. The Justices acknowledged that the point in issue was whether it was Mr Willis' vehicle that was doing the stated speed. Mr Willis' defence was that it was not his vehicle that had been identified by the Police radar equipment. [5] There was a dispute on whether the vehicle was the sole vehicle in the constable's sight at the relevant time or whether, as Mr Willis contended in evidence, the volume of traffic was such that a mistake may well have been made. [6] There is no finding in the decision of the Justices as to credibility. Nowhere is it stated that the Justices either disbelieved Mr Willis or found his evidence unreliable. The only suggestion of a credibility finding is in relation to the constable's evidence being "under oath" and a comment that while Mr Willis was right to put forward his evidence, they felt there was one statement "that we feel is actually not your statement". There then follows a reference to a discussion betweenMr Willis and his father which both counsel and I find difficult to reconcile with the transcript of the hearing. [7] Following those comments and an observation that certificates had been produced to satisfy the accuracy of the machine used "and the operator", the Justices continued:Your evidence questions the veracity of the constable's statements. Those statements were made under oath and taking into account all we have heard,we do not find sufficient firm evidence to dismiss the charge. Therefore, we consider the charge is proved. (my emphasis)[8] In those circumstances, I consider there is a real risk that the Justices misdirected themselves as to the onus of proof. The decision reached is unsafe. [9] For those reasons, the appeal is allowed and the conviction and penalty imposed set aside. I am not prepared to remit the charge to the District Court for reconsideration. All issues are resolved by this decision. ____________________ P R Heath J