Allen v Broome - [2003] TASSC 38

[2003] TASSC 38

CITATION: Allen v Broome [2003] TASSC 38

PARTIES:  ALLEN, Michael John
  v
  BROOME, Michael Andrew

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 5/2003
DELIVERED ON:  12 June 2003
DELIVERED AT:  Burnie
HEARING DATE:  12 June 2003
JUDGMENT OF:  Evans J

Edited edition of reasons for judgment delivered orally

CATCHWORDS:

Evidence - Burden of proof, presumptions, and weight and sufficiency of evidence - Presumptions - As to scientific instruments - Accuracy of speedometer.

Avins v Garvey [2001] WASCA 415, Re Appeal of White (1987) 9 NSWLR 427, followed.
Aust Dig Evidence [188]

Evidence - General - Judicial notice - Matters not requiring proof - Locality and boundaries - Matters of common knowledge.

Avins v Garvey [2001] WASCA 415, followed
Aus Dig Evidence [6] and [3]

REPRESENTATION:

Counsel:
           Applicant:  M Shirley
           Respondent:  G A Richardson
Solicitors:
           Applicant:  Director of Public Prosecutions
           Respondent:  G A Richardson

Judgment Number: [2003] TASSC 38
Number of paragraphs: 10

Serial No 38/2003
File No LCA 5/2003

MICHAEL JOHN ALLEN v MICHAEL ANDREW BROOME

REASONS FOR JUDGMENT EVANS J

12 June 2003

This is an appeal against the dismissal of a complaint alleging that the respondent rode his motor cycle at a speed in excess of the speed limit in a built-up area on Penguin Road, Ulverstone in breach of the Traffic (Road Rules) Regulations 1999 ("the Regulations"), regs20 and 25 .

The hearing of the complaint proceeded on the unstated assumption that the speed limit in the relevant section of Penguin Road was 60 kilometres per hour; I will return to this assumption. The evidence called by the complainant included evidence: that as the respondent rode a motor cycle along Penguin Road, he was followed, at a constant distance for about 300 metres, by a police vehicle on mobile patrol; that during this period the police officer who drove that vehicle observed that the speedometer of the police vehicle read between 75 kilometres per hour and 80 kilometres per hour; and that during this period the police officer who was a passenger in that vehicle observed that the motor cycle's speed was "clocked" at about 75 kilometres per hour. Both police officers also gave generalised evidence as to the accuracy of the speedometer in the police vehicle, but no specific evidence of a recent test of its accuracy was given.

Upon the close of the complainant's case, the learned magistrate in summary said that: the respondent being unrepresented, he, the learned magistrate, was obliged to consider certain aspects of the evidence; there was no direct evidence of a recent check of the speedometer of the police vehicle with a properly calibrated speed analysis device; there needed to be that sort of evidence to sustain a case to answer; and in the circumstances there was no case for the respondent to answer. The learned magistrate dismissed the complaint.

The issue for the learned magistrate to determine, he having decided to consider whether the respondent had a case…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allen v Broome

Details

AGLC: Allen v Broome [2003] TASSC 38
Case: [2003] TASSC 38
Decision Date: 12 June 2003

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Michael John Allen appealed against the dismissal of a complaint that Michael Andrew Broome had ridden his motor cycle at a speed in excess of the speed limit on Penguin Road, Ulverstone, in breach of the Traffic (Road Rules) Regulations 1999. The hearing proceeded on the assumption that the speed limit was 60 kilometres per hour. The complainant's evidence included observations from two police officers who followed Broome on his mobile patrol vehicle, noting that the patrol vehicle's speedometer read between 75 kilometres per hour and 80 kilometres per hour, and that Broome's motor cycle was clocked at about 75 kilometres per hour. However, no evidence was presented regarding the recent calibration of the patrol vehicle's speedometer.

The magistrate dismissed the complaint, stating that there was no direct evidence of the patrol vehicle's speedometer accuracy and that such evidence was necessary for a case to answer. The magistrate concluded that there was no case for Broome to answer. Allen argued that the magistrate erred by requiring evidence of the patrol vehicle's speedometer accuracy when there is a common law presumption of the accuracy of speedometer readings. Broome contended that the magistrate should have dismissed the complaint as the prosecution had not established the applicable speed limit.

Evans J held that the magistrate erred in dismissing the complaint due to the absence of evidence regarding the patrol vehicle's speedometer accuracy. Evans J noted that there is a presumption of the accuracy of speedometer readings, consistent with the Evidence Act 2001, and that the National Measurement Act 1960 (Cth) does not impact the admissibility of such evidence. Regarding the speed limit, Evans J found that it was unclear whether the magistrate took judicial notice that the road was in a built-up area, and therefore, could not conclude that the complaint should have been dismissed on that basis. The appeal was allowed, and the dismissal of the complaint was set aside, with the complaint to be remitted for retrial by another magistrate.

Orders