Ambagtsheer v Police - [2010] SASC 292

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
AMBAGTSHEER v POLICE
[2010] SASC 292
Judgment of The Honourable Chief Justice Doyle
19 October 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
Appeal against conviction for speeding - minor discrepencies and inconsistencies in the evidence - whether open to Magistrate to find prosecution case proved beyond reasonable doubt - whether Magistrate erred in preferring evidence of police officer - whether Magistrate erred in not providing reasons for preferring evidence of police officer - appeal dismissed.
Australian Road Rules r 20, referred to.

AMBAGTSHEER v POLICE
[2010] SASC 292
Magistrates Appeal: Criminal

DOYLE CJ: Mr Ambagtsheer was charged with breaching rule 20 of the Australian Road Rules by driving over the speed limit. It was alleged that on 17 July 2009 he drove on the South Eastern Freeway at a speed of 127 kilometres per hour or greater. The speed limit on that part of the Freeway at that time was 110 kilometres per hour. After a trial, a Magistrate found Mr Ambagtsheer guilty of the offence charged. Mr Ambagtsheer appeals against the Magistrate’s finding of guilt.
Mr Ambagtsheer’s main argument is that the prosecution case was not proved beyond reasonable doubt. He points to a number of differences and inconsistencies in the prosecution case that he says undermine it. In particular, he points to differences between the evidence of Detective Husdell and Mr David, the two prosecution witnesses.
The Magistrate resolved these differences by preferring the evidence of Detective Husdell where it was contradicted by or inconsistent with the evidence of Mr David. He was entitled to do that. The inconsistencies in the evidence of Detective Husdell were minor, and his evidence justified the Magistrate’s finding of guilt. Mr Ambagtsheer’s other grounds of appeal also lack substance. Accordingly, for the reasons that follow, I would grant Mr Ambagtsheer an extension of time within which to appeal, his appeal being filed one day out of time, but I would dismiss his appeal.
Facts
The facts are relatively straightforward. On 17 July 2009 about 10.45am Detective Husdell was driving an unmarked police car along Adelaide Road at Murray Bridge. He had a passenger with him, Mr David. He was driving Mr David to Adelaide. Mr David was not a police officer.
As Detective Husdell approached the verge of the ramp adjoining the South Eastern Freeway he noticed Mr Ambagtsheer’s car. Mr Ambagtsheer was travelling along the Freeway away from Murray Bridge towards Adelaide. According to Detective Husdell, he noticed Mr Ambagtsheer’s car because it was travelling faster than the general flow of traffic.
Mr Ambagtsheer’s car passed Detective Husdell as the latter drove onto the Freeway. Detective Husdell gave evidence that he was travelling at 110 kilometres per hour as he entered the Freeway. He began to follow Mr Ambagtsheer’s car immediately. He suspected that Mr Ambagtsheer’s car might be speeding, but he was unsure whether Mr Ambagtsheer’s car had sped up to overtake his vehicle as he entered the Freeway, or whether he was driving at a speed consistently above the speed limit.
Detective Husdell observed that Mr Ambagtsheer’s car overtook a number of other cars travelling on the Freeway. He formed the view that these cars were also travelling at 110 kilometres per hour, and that therefore Mr Ambagtsheer’s car must be speeding. However, he was unsure precisely how fast Mr Ambagtsheer’s car was travelling. He said that he followed Mr Ambagtsheer for about 8 kilometres before he was able to take up a position behind Mr Ambagtsheer’s car and determine how fast he was travelling. Mr Ambagtsheer points out that this is inconsistent with what Mr David said in evidence. Mr David said that Detective Husdell was travelling at 110 kilometres per hour as he drove onto the Freeway and that he did not speed up before he signalled to Mr Ambagtsheer to pull over.
The Magistrate found that Detective Husdell took up a position about 250 metres behind Mr Ambagtsheer’s car. The evidence suggests that the Magistrate made a mistake and Detective Husdell was only 40 to 60 metres behind Mr Ambagtsheer. Mr Ambagtsheer was driving in the left hand lane of the Freeway. Detective Husdell was driving in the right hand lane. There were no vehicles between them. Detective Husdell turned on his vehicle’s cruise control. He set the speedometer at 127 kilometres per hour and followed Mr Ambagtsheer. Detective Husdell said that he followed and timed Mr Ambagtsheer’s vehicle at this speed over a distance of approximately 300 metres. The effect of his evidence was that the distance between his car and Mr Ambagtsheer’s vehicle did not decrease while he was driving at 127 kilometres per hour. On this basis he determined that Mr Ambagtsheer’s vehicle was travelling at a speed equal to or greater than 127 kilometres per hour.
After timing Mr Ambagtsheer’s vehicle over this distance, Detective Husdell signalled to Mr Ambagtsheer to pull over, which he did. He gave evidence that he obtained Mr Ambagtsheer’s personal details and informed him that he would be issuing an expiation notice. He did not tell Mr Ambagtsheer why he was not issuing an expiation notice immediately, but he did tell him that it was an offence to exceed the speed limit and that he had just followed and timed Mr Ambagtsheer at 127 kilometres per hour or greater.
Consideration of the Appeal
As Mr Ambagtsheer submitted, the crux of his appeal is that the prosecution did not prove that he was speeding beyond reasonable doubt. On appeal this must be put in different terms, namely, that it was not open to the Magistrate to find that the prosecution had proved its case beyond reasonable doubt. Mr Ambagtsheer points to a number of inconsistencies in the evidence of Detective Husdell, and to differences between the evidence of Detective Husdell and Mr David, in support of his submission.
In particular, Mr Ambagtsheer argues that Mr David’s evidence makes it impossible for his vehicle to have been travelling faster than 110 kilometres per hour. Mr David gave evidence that Detective Husdell drove onto the Freeway at 110 kilometres per hour and did not accelerate before pulling Mr Ambagtsheer over. This is different from Detective Husdell’s evidence that after some time he followed and timed Mr Ambagtsheer at 127 kilometres per hour.
Mr Ambagtsheer argues that the differences between the evidence of Detective Husdell and Mr David gave rise to reasonable doubt, meaning that the Magistrate was wrong in finding that the prosecution had proved its case. He says that the Magistrate went wrong by preferring the evidence of Detective Husdell in circumstances where he found both Detective Husdell and Mr David to be honest witnesses. He also points out that the Magistrate gave no reason for preferring the evidence of Detective Husdell.
However, Mr David’s evidence is problematic. It is problematic because, from the point when Detective Husdell drove onto the Freeway until he pulled Mr Ambagtsheer over, he describes an incident that is quite different from that described by Detective Husdell. His evidence was, in effect, that Detective Husdell entered the Freeway at 110 kilometres per hour, stayed at that speed, and then pulled Mr Ambagtsheer over not long after driving onto the Freeway. Yet there was no real dispute between Mr Ambagtsheer and Detective Husdell that Detective Husdell followed Mr Ambagtsheer for some distance down the Freeway before pulling him over. This tends to support the Magistrate’s decision to prefer the evidence of Detective Husdell where it was contradicted by or inconsistent with the evidence of Mr David.
The argument that the Magistrate erred in preferring the evidence of Detective Husdell when he found both witnesses to be honest confuses the honesty of the witnesses with their reliability. The honestly of Detective Husdell was in issue as Mr Ambagtsheer had based his defence in part on an argument that Detective Husdell had deliberately picked him out and fabricated evidence against him because he was known to Detective Husdell. Regarding the honesty of the witnesses, the Magistrate said at [15] that:
In my assessment of the prosecution witnesses, I have no reservation in accepting beyond reasonable doubt, that they are witnesses of truth, that is both Detective Husdell and the witness David. I accept the evidence of each of them without reservation.
The Magistrate was entitled to make that finding.
Regarding the reliability of the witnesses, the Magistrate stated at [13]:
I also have little regard for the inconsistencies between the evidence given by Detective Husdell and the witness David and where the evidence contradicts on the main and central issues I accept without hesitation the evidence of Detective Husdell.
The Magistrate was entitled to prefer the evidence of Detective Husdell over Mr David. He had the benefit of seeing both witnesses give their evidence.
While, as Mr Ambagtsheer points out, the Magistrate did not provide any reasons for preferring the evidence of Detective Husdell, I do not think this amounted to an error in this case. It is desirable to give brief reasons that explain why the evidence of one witness should be preferred over the evidence of another. But the failure to give reasons does not necessarily amount to an error. There is an obvious problem with Mr David’s evidence. The Magistrate must have relied on the demeanour of the witnesses, and he could not have said much more about that.
Mr Ambagtsheer also complains that the Magistrate was wrong in finding that Detective Husdell was about 250 metres behind Mr Ambagtsheer when he started timing him because Detective Husdell gave evidence that he was only 40 metres behind Mr Ambagtsheer. While there was a reference to 250 metres in the transcript, this reference appears to have been a slip of the tongue or is otherwise an error in the transcript. The effect of Detective Husdell’s evidence was that he was approximately 50 metres behind Mr Ambagtsheer, although he could have been 40 or 60 metres behind him.
However, the fact that the Magistrate erred in finding that Detective Husdell was 250 metres behind Mr Ambagtsheer rather than 40 or 60 metres is only relevant if this mistake affects the reliability of Detective Husdell’s calculation of Mr Ambagtsheer’s speed. I am satisfied that this was a slip by the Magistrate, and that it does not undermine his reliance on Detective Husdell.
For these reasons Grounds 1(a) and 1(b) in the Notice of Appeal must fail.
Mr Ambagtsheer’s next complaint relates to the finding that Detective Husdell had informed Mr Ambagtsheer when he pulled him over that he was being “fined for speeding”. He says that this finding is inconsistent with the evidence of Detective Husdell, and he refers to a passage of Detective Husdell’s evidence where the Magistrate asked him to explain why he did not inform Mr Ambagtsheer of his reasons for not issuing him with an expiation notice immediately.
This complaint is without substance. What the Magistrate said is consistent with the evidence of Detective Husdell. Detective Husdell’s evidence was that he told Mr Ambagtsheer that it was an offence to exceed the speed limit and that he had just followed and timed Mr Ambagtsheer at 127 kilometres per hour. The passage of Detective Husdell’s evidence that Mr Ambagtsheer refers to is not inconsistent with the Magistrate’s finding.
In oral submissions Mr Ambagtsheer argued that Detective Husdell did not write the speed at which Mr Ambagtsheer was travelling on the infringement notice. He points to his copy of the infringement notice, which does not have the speed on it, and the other two copies of the notice which do. He says that there is no reason why he could not have been issued with an expiation notice with the speed he was alleged to have been travelling on the spot, given the method Detective Husdell used to calculate his speed. He argues that Detective Husdell must have written in the speed he was travelling after he had sent Mr Ambagtsheer his copy of the notice, and he submits that this must affect the credibility of Detective Husdell as a witness.
The absence of the notation of the speed from Mr Ambagtsheer’s copy of the notice was never properly explored in evidence. It is quite possible that Detective Husdell filled out part of the notice, posted a copy of it to Mr Ambagtsheer, and later added the speed at which he was alleged to have been travelling. He may have forgotten to write the speed on. It should have been written on. However, this does not mean that it was left off for sinister reasons. Nor does it follow that the Magistrate erred in finding Detective Husdell an honest witness.
Accordingly, Ground 2 must fail.
In essence Ground 3 alleges that the evidence is contradictory and mathematically improbable. Detective Husdell gave evidence that he was 400 metres behind Mr Ambagtsheer when he drove onto the Freeway, although in cross-examination he said that this distance was 200 metres. Detective Husdell said that he did not exceed 125 kilometres per hour until he decided to position his vehicle behind Mr Ambagtsheer’s car. His cruise control was set at 127 kilometres per hour while he timed Mr Ambagtsheer. Mr Ambagtsheer asserts that Detective Husdell must have been travelling at over 150 kilometres per hour to reduce the distance between the two vehicles in order for Detective Husdell to commence his follow and time procedure.
Mr Ambagtsheer’s assertion that it is mathematically improbable that he was speeding is not supported by the evidence. The effect of Detective Husdell’s evidence was that he entered the Freeway at 110 kilometres per hour, he got up to 125 kilometres per hour, and then once he made the decision to position his vehicle behind Mr Ambagtsheer’s car he exceeded 125 kilometres per hour until he had done so. This would have had the effect of closing the distance between the two vehicles.
For this reason Ground 3 must fail.
Ground 4 asserts that the Magistrate erred by failing to address Mr Ambagtsheer’s submissions or any of the discrepancies in the evidence of Detective Husdell and Mr David. This ground is misconceived. The Magistrate was not required to address all of Mr Ambagtsheer’s submissions. He dealt with the main points.
Accordingly, Ground 4 must fail.
The complaint the subject of Ground 5 is that the Magistrate erred in having regard to the transcript on the day that he delivered his reasons, and that he gave unprepared findings that were inconsistent with the evidence. The fact that the Magistrate referred to the transcript when he delivered his reasons is not a reason for saying that he erred. Whether the reasons are adequate and whether they record any errors the Magistrate may have committed are the relevant questions. I am satisfied that the Magistrate’s reasons are adequate.
For this reason Ground 5 must fail.
Ground 6 is a repetition of Ground 3. For the reasons set out above in relation to Ground 3, Ground 6 must fail.
In Ground 7 Mr Ambagtsheer submits that the Magistrate erred by finding that he had a case to answer. Mr Ambagtsheer refers to the inconsistencies between the evidence of the two witnesses and argues that the prosecution could not prove that Mr Ambagtsheer was guilty of the offence beyond reasonable doubt. The Magistrate was correct to rule that there was a case to answer. The evidence of Detective Husdell was capable of proving that Mr Ambagtsheer was speeding.
By Ground 8 Mr Ambagtsheer submits that the Magistrate erred by stating in his reasons that he could not and did not draw any adverse inference against Mr Ambagtsheer for his election not to give or call evidence. This Ground discloses no error. It was appropriate for the Magistrate to say what he did.
Grounds 9 and 10 essentially attack the adequacy of the Magistrate’s reasons as a whole. Mr Ambagtsheer submits that the reasons are inadequate in that they do not explain “why discrepancies in the Prosecution’s case were accepted by the Court.” These Grounds must also fail for the reasons already given.
Conclusion
Mr Ambagtsheer’s appeal was filed one day out of time. However the respondent was not prejudiced by this delay. I order that the time for instituting the appeal be extended to 25 August 2010; that the appeal be dismissed; and that there be no order as to the costs of the appeal.