Brown v Police Department [1992] CKHC 7; CR 609.1991 (4 December 1992)

IN THE HIGH OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)
CR. NO.692/91
CR. NO.609/91

BETWEEN

MAINE BROWN and WARREN ATKINS
of Rarotonga
Applicants

AND

THE POLICE DEPARTMENT
Rarotonga
Respondent

Counsel: Mr Mitchell for Applicants
Miss Maki for Respondent

Hearing: 14 October 1992 Counsels' Memoranda of
28 October 1992 & 10 November 1992
Judgment: 4.12.92

JUDGMENT OF ROPER C.J.

The Applicants have been charged with driving at a speed exceeding 40kph in a restricted area pursuant to s.56(3) of the Transport Act 1966 and have applied led for the determination of a question of law before trial pursuant to s.105 of the Criminal Procedure Act 1980-81.

The Applicants and others were charged following checks of their speed by radar equipment, namely the Kustom Falcon Radar made by Kustom Electronics in America.

There was an earlier application to determine a question of law in relation to these charges which was heard by Dillon J. sometime before the fire last May which destroyed the Court records. It appears that the main argument before Dillon J. was whether the Kustom, Falcon Radar was a lawful device for the purpose of measuring vehicle speed in the Cook Islands. Dillon J. held that it was and there has been no challenge to that conclusion.

The prosecution intended to prove the accuracy of the radar by producing a "Certificate of Calibration", a document signed on the 30th May 1990 by a technician employed by Kustom Electronics which confirms the accuracy of the device at that time. (The alleged offences were actually committed some 14 months later.)

In his judgment of the 24th June 1992 Dillon J said:

"There was no argument as to the Certificate of Calibration. I have taken it that that certificate is accepted by the defence."

I was informed by Mr Mitchell that in fact objection to the Certificate was raised and that it was his intention to file written submissions. It appears that there was a misunderstanding coupled with confusion resulting from the fire with the result that Dillon J. did not receive the submissions before the issue of his judgment. Mr Mitchell then filed a further application pursuant to s.105 of the Criminal Procedure Act and no objection has been taken by counsel for the Respondent to my dealing with it.

Mr Mitchell's short point was that the "Certificate of Calibration" is hearsay and is inadmissible to prove the accuracy of the device. He referred to the New Zealand statutory provisions and in particular s.197(3) which reads:

"(3) In any proceedings for an offence against this Act or any regulations or bylaws made under this Act, the production of a Certificate (or a document purporting to be a copy of a certificate) purporting to be signed by a sworn or non - sworn member of the Police authorised by the Commissioner in that behalf as to the testing and accuracy of any speed-measuring device referred to in the certificate shall be admissible as evidence that the device referred to has been tested and is accurate."

There is no such provision in the Cook Islands Transport Act.

Miss Maki did not challenge Mr Mitchell's submission that the Certificate of calibration was hearsay but sought to establish that the accuracy of the radar could be proved notwithstanding.

She referred first to the discretionary powers contained in ss 3 & 22 of the Evidence Act 1968 which read:

"S3 Discretionary power of admitting evidence - Subject to the provisions of this Act, a Court may In any proceeding admit and receive ouch evidence as it thinks fit, and accept and act on such evidence as it thinks sufficient, whether such evidence is or is not admissible or sufficient at common law.

S22. Admissibility of documentary evidence as to facts in issue -(1) In any civil or criminal proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say-

(a) if the maker of the statement either-

(i) Had personal knowledge of the matters dealt with by the statement; or

(ii) Where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) In the h e performance of a duty to record information; and

(b) If the maker of the statement is called as a witness in the proceedings;"

I do not regard it as appropriate to exercise my discretion under either of those sections, particularly having regard for the delay between the accuracy test and the alleged offending. In any event there is another avenue open to the prosecution as I shall mention later.

Miss Maki next submitted that evidence as to accuracy was unnecessary and referred to the following passage from Cross on Evidence, 4th N. Z. edition at P53:-

"2.14 Mechanical instruments - A presumption which serves the same purpose of saving the time and expense of calling evidence an the maxim just considered Io the presumption that mechanical instruments were in order when they were used. In the absence of evidence to the contrary, the Courts will presume that stopwatches and speedometers and traffic lights were in order at the material time. But the instrument must be one of a kind as to which it is common knowledge that they are more often than not in working order. Evidence may be needed about the reliability of new or comparatively unfamiliar devices. Thus, in Holt v Auckland City Council the Court of Appeal held that equipment designed to analyse the alcohol level in blood by means of head space gas chromatography had not reached such a degree of usage and acceptability that it should be presumed to have been functioning accurately."

In Holt [1980] 2 N.Z.L.R. 124 at 127 Richardson J., delivering the judgment of the Court, adopted the following principles taken from Professor Wigmore's "The Principles of Judicial Proof":-

"A. The type of apparatus purporting to be constructed on scientific principles must be accepted as dependable for the proposed purpose by the profession concerned in that branch of science Or its related art. This can be evidenced by qualified expert testimony; or, if notorious, it will be judicially noticed by the Judge without evidence.

B. The particular apparatus used by the witness must be constructed according to an accepted type and must be in good condition for accurate work. This may be evidenced by a qualified expert.

C. The witness using the apparatus as the source of his testimony must be one qualified for its use by training and experience."

In Ministry of Transport v Hughes [1991] 3 N.Z.L.R. 325 Elchalbaum C.J. referred to the above principles at P326 as follows:-

"In the present case, having regard to the length of time for which microwave speed detection devices have been in use and accepted by the Courts in this country, Para A may be regarded as sufficiently covered by judicial notice. As to para B, to the extent that It is concerned with the accuracy of the particular device in a general sense, a certificate under s197(3) of the Transport Act 1962 (which in the present case was duly produced) Is evidence capable of fulfilling that requirement."

I note that in Dunsmore v Elliot 1981 26 S.A.S.R. 1981 C.A. White J. expressed the opinion that a radar unit could not be read, in the absence of legislative authority, like a watch or speedometer or other notoriously accurate scientific instrument, Legoe J. in the same case expressed the contrary but tentative view that the common law presumption in favour of the accuracy of Instruments may have applied; and Sangster J, expressly refrained from expressing a concluded view.

I think the best that can be said on this point is that the court would not require proof as to what the device in Issue was and what It did but would still require proof as to its accuracy at the relevant time.

It is my opinion that the Certificate of Calibration of the 30th May 1990 is not admissible as proof of accuracy. However, that is not the end of the matter as indicated earlier. There is available to the Respondent a further certificate of accuracy dated the 23rd August 1991 and signed by a member of the technical section of Telecom Cook Islands and that person would be available to be called as a witness.

Mr Mitchell has submitted that It is now too late for the employee of Telecom to be called but i do not agree. All that has been before the Court up to this stage are applications to determine questions of law before trial. Dillon J. made it very clear that all he was deciding was the validity of the Gazette Notice specifying the particular measuring device to be used. All I have decided is that the certificate of calibration is not admissible. The matter must now go to a hearing and it will be for the Court at that hearing to consider the effect of the Telecom employee's evidence.

ROPER C.J.