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,…

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.

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Details

Case: [2013] SASC 112
Decision Date: 10 July 2013

CaseChat Overview and Summary

The case of Anastasiou v Police involves an appeal by the defendant, Mr Anastasiou, against findings of guilt of two speeding offences detected by traffic speed analysers in South Australia. The magistrate's court proceedings were heard in conjunction for convenience, with Mr Anastasiou representing himself. The prosecution relied on certificates under the Road Traffic Act 1961 to prove the offences. Mr Anastasiou argued that the testing of the analysers did not comply with the required regulations and that his own evidence suggested inaccuracies in the devices. The appeals against conviction and sentence were dismissed by the Supreme Court.

The legal issues before the court involved whether the statutory presumptions of accuracy of the traffic speed analysers were properly rebutted. Mr Anastasiou argued that the testing of the accuracy of the devices should have been conducted at speeds approximating the speed limit at the relevant locations, and that a one kilometre per hour discrepancy in the test results indicated a fault requiring corrective action. The court also had to consider whether there was compliance with Commonwealth law in the form of the National Measurements Act 1960 (Cth), although this argument was not raised before the magistrate.

The court found that the certificates proved compliance with the Road Traffic Act and the relevant regulations regarding the operation and testing of the devices. The one kilometre per hour discrepancy did not amount to a "fault" necessitating corrective action. The court held that the discrepancy could have resulted from rounding or inaccuracies in the test car's speedometer, and did not rebut the statutory presumption of accuracy. The court also found no basis to suggest that traffic speed analysers required certification under the National Measurements Act. The magistrate's findings and sentence were within his discretion, and the appeals were dismissed.

ORDERS:
The appeals against conviction and sentence were dismissed. It was held that there was no indication of non-compliance with the regulations and that the defendant's evidence did not amount to proof to the contrary.

Orders

Orders of the court

Held: no indication that there was non-compliance with the regulations - defendant's evidence did not amount to proof to the contrary - appeals dismissed.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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