Police v Richmond [1992] CKHC 4; CR 626,627.1991 (24 June 1992)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD IN RAROTONGA
(CRIMINAL DIVISION)
C.R. No. 626/627/91

BETWEEN

COOK ISLANDS POLICE
Informant

AND

KEU RICHMOND
Defendant

Counsel: Mr Appleby for Informant
Mr Mitchell for Defendant

Date of Judgment: 24th day of June 1992

JUDGMENT OF DILLON J.

The Defendant, by his Solicitor, has applied to the Court to determine a question of law as to whether the "Kustom Falcon Radar Serial Numbers FF7096N and FF7097M" are legal for the purpose of recording the measurement of speed of motor vehicles and therefore as a consequence may be used as evidence in the prosecution of the Defendant by the Informant.

The facts are brief and simple. On 1 September 1991 the Defendant was driving a Honda 250cc motorcycle on the main road at Nikao. The Informant alleges that the Defendant was driving at a speed exceeding 40 kilometres an hour in a restricted area in breach of the Transport Act 1966; and in addition driving in excess of that speed of 40 kilometres per hour in a restricted area without wearing an approved safety helmet, again in contravention of the Transport Act 1966.

For the purpose of the proceedings the Informant desires to use the microwave reading as part of and in substantiation of the allegation of speed alleged against the Defendant.

The Informant has made brief submissions relying on the certification of the microwave by means of a Gazette notice and a Certificate of Calibration certified by a Notary Public as to the manufacturer's accuracy specifications.

On the other hand the Defendant has prepared a synopsis of legal submissions setting out in detail alleged defences to the reliance placed on this apparatus by the Informant and detailing the reasons why evidence based on the microwave reading should not be allowed or relied upon for the purpose of the prosecution. In summary the Defendant approaches the interpretation of the relevant statute, namely Sections 65 to 78 of the Transport Act 1966, and in particular the following:

(a) The literal approach;

(b) The New Zealand modern approach;

(c) Interpreting a provision with general words;

(d) Hansard;

(e) Structure of the Act.

I have referred to the headings of the various submissions that are subsequently explained in detail by Counsel. The submissions in respect of each heading have a common heading, namely that under one of those headings or a combination of those headings the Court is justified in rejecting the evidence based on the microwave apparatus since it fails to conform with the jurisdiction of the Transport Act and the relevant specifications set out therein as related to this particular alleged offence.

The thrust of the Defendant’s argument relates to the interpretation of Clauses 65 to 78 of the Transport Act 1966 under the heading "Equipment". The submissions, in a well detailed presentation, refer to each of those sections from Section 65 to Section 78, and how each of those sections relates to the requirements of equipment as particularised by each section. For example, as the submissions recount Section 65 deals with general lighting; 66 headlamps; 67 dipping of lights; 68 rear lamps; 69 rear reflectors; 70 brakes; 71 warning devices; 72 steering; 73 tyres; 74 windscreen protection; 75 rear vision mirror. The remaining three sections in this subdivision of the Transport Act relate to Section 76 – Approval of Appliances by Chief of Police; Section 77 – Means of Entrance and Exit; and Section 78 – Dangerous Fittings.

The submissions by the Defendant rely on the equipment which go to form part of any vehicle and which are detailed in the various sections as I have set out above. The argument is that because the microwave appliance is not part of the equipment of a vehicle but is an instrument which is independent of any vehicle, then therefore it cannot be included in the provisions of this particular area of the Transport Act for the purpose of securing its validation and applicability. The Informant relies on Section 76 as granting the appropriate authority for the use of a microwave appliance because, so the Informant says, that appliance has been approved by the Chief of Police as confirmed in the Gazette and it is therefore either an appliance or apparatus or device or any type of those instruments.

The thrust of the Defendant’s submissions therefore is that those sections of the Transport Act, being Sections 65 to 78 inclusive, come under the heading of equipment in that Act; that equipment being related to being affixed to vehicles; and that as a consequence the Informant is not entitled to rely on Section 76 in order to secure either authority or jurisdiction for the use of the authorisation of that equipment pursuant to Section 76.

The Defendant on a number of occasions throughout his submissions states that Section 76 of the Transport Act "... refers to "equipment" in respect of apparatus appliances and devices which must be attached to a motor vehicle." On another occasion the Defendant states that "... the meaning in Section 76(l) on appliance apparatus or device or any type of appliance apparatus or device for use under this Act is such appliances apparatus and device which must be used for attachment to motor vehicles". The underlining in those two quotations I have made in order to emphasise what the Defendant has stated in his submissions, but what the Section itself does not say. It is perhaps relevant at this stage to quote Section 76(l) which states as follows:

"76. – Approval of Appliances by Chief of Police – (1) The Chief of Police may by notice published in the Gazette approve of any appliance, apparatus or device or any type of appliance, apparatus or device for use under this Act."

There was no argument as to the Certificate of Calibration attached to the submissions as Exhibit 1. I have taken it that that Certificate is accepted by the Defence.

Also attached to the submissions is a copy of the Cook Islands Gazette dated 20 August 1990 and referred to as Number 51/90 and further as Number 151. That Gazette notice is headed up "Approval of Appliance". The Gazette notice then purports to grant approval pursuant to Section 76 of the Transport Act 1966 of the two microwave speed apparatus already referred to and that the approval is for the use of those devices under the Transport Act 1966. It is interesting that in that very short Gazette notice the microwave instrument is referred to as an appliance; as an apparatus; and finally as a device; which are the three actual words used in Section 76 itself. No point was made of the fact by the Defence that the Gazette notice was signed by the Deputy Commissioner of Police, whereas Section 76 required that approval be granted to such appliances by the Chief of Police. However I am told that on 20 August 1990 the Commissioner of Police was absent during that period and that the Deputy Commissioner of Police was, in his absence, the Chief of Police of the Cook Islands. Nothing therefore rests on that aspect of this enquiry.

The Defence Counsel, in his conclusions however, makes the following concession:

"When we apply a liberal interpretation of appliance, apparatus or device it is submitted that a speed measuring device would come within the meaning of appliance, apparatus or device."(The underlining is mine.)

I accept Counsel’s liberal interpretation that he refers to. In fact I believe it is the only interpretation that is available. The words of Section 76 are plain, simple and unambiguous. It is only necessary to consider the various approaches to the interpretation question considered by Counsel for the Defence, if in fact there is a doubt as to the meaning of the Section itself.

Section 76 simply states that approval may be given to "any appliance, apparatus or device or any type of appliance, apparatus or device for use under this Act". On the certificate of Calibration the microwave apparatus is described as an "instrument". I have already referred to the Gazette notice where the microwave is referred to as "an appliance"; as "an apparatus"; and as a "device".

The language in my opinion is clear and explicit. It must be given effect to since there is no ambiguity. There is therefore no need to go into the principles of interpretation to try and ascertain the meaning of a Section since there is no ambiguity in the Section itself. The intention of the legislature is unequivocal. The words of Section 76 are precise and consequently must be applied in their ordinary and accepted sense.

This application applies to the Court for a ruling on the legality of the microwave radar apparatus at present in use in the Cook Islands pursuant to the Gazette notice already referred to. In my opinion they are legal and available for use for recording the measurement of speed of motor vehicles and as a result such information is available to the Informant in support of prosecutions based on speed. It will be appreciated that this decision is limited to the examination of those factors which I have set out - that is the validity of the Gazette notice and the validity of Section 76 in its use for the authorisation of such equipment.

On the question of costs normally I would have considered an Order against the Defendant in favour of the Informant for a substantial allowance towards costs. To be fair to the Defendant, the point that has been raised is novel, the use of microwave detectors are a new facet of traffic control on the Island; and in all the circumstances there is nothing unreasonable in the Defendant testing the validity of the provisions of the Act which gives authorisation to the microwave apparatus. On this occasion, therefore, I will make no award of costs.

DILLON J