Anastasiou v Police - [2013] SASC 112

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ANASTASIOU v POLICE
[2013] SASC 112
Judgment of The Honourable Justice Vanstone
10 July 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
Appeal against findings of guilt of two speeding offences detected by traffic speed analysers - proof by way of certificates under the Road Traffic Act - whether regulations relating to testing of the analysers had been complied with - whether the statutory presumptions were rebutted by "proof to the contrary" in form of discrepancy between test speedometer and actual speed, or by the defendant's evidence of taking measurements and making calculations which on his case were suggestive of inaccuracy in the analysers.
Held: no indication that there was non-compliance with the regulations - defendant's evidence did not amount to proof to the contrary - appeals dismissed.
Road Traffic Act 1961 (SA) s 175(3)(b), 175(3)(ba); National Measurements Act 1960 (Cth); Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 17(2)(f), referred to.

ANASTASIOU v POLICE
[2013] SASC 112
Magistrates Appeal

VANSTONE J: On 15 March 2013 the appellant was found guilty after a trial of two offences of speeding, the first occurring on 23 May 2012 and the second taking place one week later. Although they were charged on separate complaints I shall refer to these charges as counts 1 and 2. The magistrate proceeded to impose penalty immediately. Without recording convictions he imposed one penalty in relation to both offences, being a fine of $520, and ordered the appellant to pay prosecution costs in each matter of $100, as well as court costs and levies.
Mr Anastasiou now appeals against those findings and against the penalty imposed. The grounds of appeal are:
1.A test must be carried out by reference to speeds applying to drivers driving through the intersection.
2.If a fault is indicated by the test take corrective action.
Background
Although there was no nexus between the charges they were heard within one trial as a matter of convenience. Mr Anastasiou represented himself, as he did in this Court.
Before the magistrate the prosecution of both charges followed similar lines. Proof of commission of the offences was mainly in the form of certificates tendered under the Road Traffic Act 1961 proving the offences by means of different devices, each of which was an approved photographic detection device and also an approved traffic speed analyser. Some evidence was called but, for present purposes, need not be outlined. The appellant gave evidence of the circumstances surrounding each alleged offence. He also gave evidence of later having returned to each intersection and of making certain measurements which he used in calculations, which in turn led him to contend before the magistrate (and before this Court) that the devices could not have been accurate. In each instance he stated he was not speeding.
Arguments on appeal
At the appeal hearing Mr Anastasiou put a number of arguments, some of which did not appear to respond to the grounds of appeal. His overarching argument was that the Road Traffic Act and regulations relating to the testing of the respective devices were not complied with and that therefore it was not open to the magistrate to find the appellant guilty of each count.
I shall summarise the principal arguments which I take to be raised by the appellant.
The appellant argued that the required testing of the accuracy of the devices should have been carried out at speeds approximating the speed limit at the relevant location. The “test speeds” here were about 37 kilometres per hour to 40 kilometres per hour.
In relation to count 1 the defendant pointed to Exhibit P14, Certificate of Accuracy of Speedometer, which arguably proved that the speedometer attached to Holden Omega, registration number SA S323 AQE was, on 30 January 2012, inaccurate to the extent of overstating actual speed by one kilometre per hour. He suggested that called into question the accuracy of the analyser device itself, because it had been tested against the same Holden Omega on 26 April 2012 and found to have registered a speed of 37 kilometres per hour when the speed of the Holden Omega registered 37 kilometres per hour: Exhibit P5. The appellant made the same argument in relation to count 2, where the relevant certificates, P13 and P15 showed that the speedometer on the test car was showing a speed of three kilometres per hour greater than the actual speed and that the relevant device was showing a speed of three kilometres per hour below that of the test car.
The appellant also argued that both devices failed to meet the requirements of Commonwealth law in the form of the National Measurements Act 1960 (Cth). The appellant did not refer to any sections of that Act. Nor did he explain why the cameras should require certification under that Act or how the Act could bear otherwise upon these cameras or this prosecution. It appears that this argument was not put to the magistrate.
I mentioned earlier that the appellant gave evidence of having taken certain measurements at the two intersections in question and that he suggested that calculations made on the basis of those measurements proved that the respective devices were operating incorrectly on the day of each offence.
The measurements taken by the appellant were based on the pair of photographs taken by each photographic detection device. The appellant’s methodology was the same in each case. Armed with the relevant photographs the appellant said that he attended at each intersection and attempted to locate, and did locate, the position of his rear left tyre on the roadway as depicted in each of the two photographs. He then measured the distance between the two positions of that tyre as depicted. On the basis that the photographs showed, in each instance, a time when the photographs were taken and that the elapse of time between them was recorded as one second, the appellant performed a calculation to establish at what speed his vehicle must have been travelling in order to traverse the relevant distance in one second. He then compared the calculated speed with the speed recorded by the device at the time of the offence. For example, in relation to count 1 the speed he calculated was 75 kilometres per hour, whereas the device had measured the appellant’s speed as 68 kilometres per hour. This, the appellant argued, indicated that the device was faulty.
The same process was followed in relation to count 2 and again the appellant’s evidence was that his calculations demonstrated that the speed as shown in the photographs was at variance with the speed which was the product of his calculations.
Analysis
I deal with the arguments in the same order.
Division 3 of Part 3 of the Road Traffic (Miscellaneous) Regulations 1999 deals with the operation and testing of photographic detection devices. The appellant’s argument raised the issue of compliance with aspects of reg 17(2)(f).
Regulation 17(2)(f)(i) requires that once in every 28 days “… a test must be carried out (by reference to speeds not exceeding the [applicable] speed limit …”. It is apparent that any speed up to or including the relevant speed limit is encompassed by that descriptor. There is no requirement that the test speed approximate the speed of the offending vehicle.
The test is carried out “… to ensure that the device … accurately indicates the speed … of vehicles travelling through the intersection …”. Regulation 17(2)(f)(iii) provides that “if a fault is indicated” by such a test “corrective action must be taken and the test must be repeated until no fault is indicated”.
I take the appellant’s argument in respect of count 1 to be that the combination of the certificates P5 and P14 showed that the device was “over-reading” speed by one kilometre per hour. That should have led to corrective action and repetition of the test. The absence of proof of effective correction, the appellant argued, meant that the Certificate of Accuracy, P5, lacked efficacy, since the discrepancy amounted to “proof to the contrary”: s 175(3)(ba). I set out the relevant part of that subparagraph:
175—Evidence
…
(3) In proceedings for an offence against this Act—
…
(ba) a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or by any other police officer of or above the rank of inspector, and purporting to certify that a specified traffic speed analyser had been tested on a specified day and was shown by the test to be accurate to the extent indicated in the document constitutes, in the absence of proof to the contrary, proof of the facts certified and that the traffic speed analyser was accurate to that extent … (emphasis added)
The presumption provided in s 175(3)(b) relating to proof of accuracy of specified stopwatches or speedometers (pursuant to which P14 was tendered) is in similar terms.
The first question is whether the one kilometre per hour discrepancy shown in P14 should have led to repetition of the test of the device. In my view that was not required. In the first place the certificate P4 proved that the requirements of the Act and Regulations “as to the operation and testing” of this device were complied with. In any event, I do not consider that the discrepancy amounted to a “fault” necessitating corrective action: reg 17(2)(f)(iii). The discrepancy might have resulted from the combination of the rounding up or down of the respective figures. Alternatively, the discrepancy could have indicated inaccuracy in the speedometer of the test car. Either way, I would not classify a discrepancy of this order as a “fault”.
The s 175 presumptions contemplate the potential for some error by use of the limiting language “accurate to the extent indicated in the document”. In the instance of count 1 the presumption will operate to prove that the appellant’s speed was 67 kilometres per hour rather than 68 kilometres per hour. So the magistrate found.
In respect of count 2 the certificates P13 and P15 proved that, upon testing, the speedometer of the test car was inaccurate to the extent of 3 kilometres per hour, but the traffic speed analyser itself was correctly reading speed. There is no basis for complaint. The appellant has no argument in relation to count 2.
Dealing with the appellant’s argument that there was no proof of compliance with Commonwealth legislation, it seems to me that there is no basis upon which to infer that the Commonwealth legislation purports to cover the field. In other words, I can find no indication that traffic speed analysers used by South Australian police on South Australian roads required certification under the National Measurements Act.
The argument upon which the appellant placed most emphasis was based on the measurements he took at each scene and the calculations he made. There are a number of reasons why that evidence did not, in my view, amount to proof to the contrary of the accuracy of the respective devices. First, the measurements the appellant took were necessarily inaccurate. It would have been all but impossible for him to locate the very position of his rear left tyre on the roadway as depicted in the photographs. Then, although each pair of photographs produced by the devices indicated the elapse of one second between them, that too was a variable subject to error. The times on each photograph were not a matter of certification. Because the appellant’s calculation incorporating those variables involved an extrapolation from a very short distance and a very small unit of time to a rate of kilometres per hour, even the tiniest inaccuracy in the measurements or the time lapse could lead to very significant error in the calculation. Furthermore, the calculation assumed that the appellant’s vehicle was travelling at a constant speed in the period between each photograph in the pair. That was not proved. In my view the magistrate correctly found that, even accepting the appellant’s evidence as to what he did, there was no proof to the contrary of the accuracy of the certificates.
In relation to the penalty imposed, the appellant made no complaint about the fines themselves. His complaint was that the addition of court costs, prosecution costs and levies led to a demand being made of him that he pay an amount far greater than the fines imposed.
In my view both the fines and the various monetary amounts imposed in addition were well within the discretion of the magistrate and the balance of the total amount was imposed by force of law.
Conclusion
The appellant’s arguments in support of his appeals ranged far beyond the grounds of appeal as set out above. The two main arguments upon which he relied were put to, and dealt with by, the magistrate. I can find no error in the magistrate’s reasoning; in fact, I agree with his analysis.
There is no substance in the balance of the appellant’s argument.
The appeals against conviction and the appeal against sentence must be dismissed.