Arnold v Beech-Jones

[2004] TASSC 27

[2004] TASSC 27

CITATION:            Arnold v Beech-Jones [2004] TASSC 27

PARTIES:  ARNOLD, Ashley William Roy
  v
  BEECH-JONES, John Mark

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 1/2004
DELIVERED ON:  25 March 2004
DELIVERED AT:  Burnie
HEARING DATE:  16 March 2004
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Sufficiency of evidence – Whether proof of non-repair of radar device after testing necessary – Whether absence of such proof can create reasonable doubt of guilt.

Vehicle and Traffic (Offence Detection Devices) Regulations 2002.
Aust Dig Magistrates [272]

Magistrates – Jurisdiction and procedure generally – Procedure – The hearing – Matters of procedural fairness and propriety – Defendant not legally represented – Statements by defendant while cross-examining prosecution witness – Whether admissions – Whether of evidentiary value.

Aust Dig Magistrates [79]

REPRESENTATION:

Counsel:
           Prosecutor:  P Jones
           Respondent:  No appearance
Solicitors:
           Prosecutor:  Director of Public Prosecutions
           Respondent:  No appearance

Judgment  Number:  [2004] TASSC 27
Number of paragraphs:  9

Serial No 27/2004
File No LCA 1/2004

ASHLEY WILLIAM ROY ARNOLD v JOHN MARK BEECH-JONES

REASONS FOR JUDGMENT  COX CJ

25 March 2004

1. The respondent was charged with driving a motor vehicle on 8 March 2003 at a speed exceeding 100 kilometres per hour, namely 126 kilometres per hour, on Bass Highway in the Municipality of Circular Head, being a length of road to which the provisions of the Traffic (Road Rules) Regulations 1999, regs20 and 25(3)(b), applied.

1. Evidence was given for the prosecution by Constable Herbert, who deposed that he completed a course in the use of the Custom Falcon Radar on 9 September 2002.  He said that on Saturday, 8 March 2003, he was on mobile radar patrol on the Bass Highway near Smithton.  The highway at that point had a sign posted speed limit of 100 kilometres per hour.  He observed a vehicle travelling towards him at a speed which he estimated at 130 kilometres per hour.  He used his radar device, which showed a constant reading of 126 kilometres per hour which he locked on to the device.  He turned and intercepted the vehicle, which was driven by the respondent, and which contained passengers.  The respondent accompanied him to the police vehicle where he was shown the reading locked on the device and was issued with a traffic infringement notice.  Constable Herbert produced a test certificate in Form 3 of the Vehicle and Traffic (Offence Detection Devices) Regulations 2002 ("the Regulations") to the effect that the radar device he had used had been tested on 10 September 2002 by a tester at the School of Engineering, University of Tasmania, and was found capable of accurately determining the speed at which a vehicle travels within a limit of error not exceeding 2 kilometres per hour in excess or deficiency in respect of speeds up to 200 kilometres per hour.

1. At the conclusion of Constable Herbert's evidence-in-chief, the respondent, who was unrepresented, was given the opportunity by the learned magistrate to cross-examine the witness.  As so often happens, the form the cross-examination took was an assertion of facts which began with the respondent stating, "The day I was leaving Smithton my speedo read 110 kilometres per hour when I was caught".  The learned magistrate effectively translated this into a question by suggesting it be put to the witness that the radar device was inaccurate.  The witness replied by saying that the respondent's speedometer may have been incorrect and the respondent would not have known when the witness took the reading with the device.  The respondent then persisted with another assertion, "I was doing the same speed from when I left the 80 kilometre per hour zone out of Smithton along the highway ¾ I sat on, yeah, 110 kilometres".  The learned magistrate thereupon remarked, "which is an offence in itself by your own admission".  The respondent said, "Yeah", and was then asked by the learned magistrate, "So you're admitting to in fact speeding".  The respondent replied, "but not to that extreme, no".  The learned magistrate then asked, "Not to 126 but you're admitting that you were speeding?"  The respondent replied in the affirmative.  There was then brief cross-examination on whether or not the officer had accurately recorded the make of the respondent's car and he conceded he may have been in error in that regard.

1. That concluded the prosecution case and discussion then ensued about the relevant statutory provisions in respect of radar devices and within what time limits they had to be tested. After a short adjournment, the Regulations were produced and attention focused on reg10. It relevantly provides:

"10     (1) A device must not be used for the purpose of detecting a speeding offence unless –

(a)it has been tested for accuracy by a tester within the 12 months immediately preceding the date of operation; and

(b)if it has been repaired, altered or adjusted since it was last used for that purpose, it has been retested by a tester.

(2) For subregulation (1)(b), a device is not to be taken as having been repaired, altered or adjusted by reason only of the following:

(a)the adjustment of the needle, if any, of the device in the normal course of operation;

(b)the removal of a battery from the device, and its replacement with the same or another battery;

(c)the connection of the device, if battery-powered, to another battery;

(d)… "

The learned magistrate observed that there was no evidence given by the operator that the device had not been repaired, altered or adjusted since it was last used.  The prosecutor conceded that even if given leave to re-open, he could not adduce evidence to prove that negative.

1. The learned magistrate then told the respondent that he could submit that there was no case to answer because some particular element had not been proven.  However, he qualified that by saying that he had already indicated that to take the prosecution at its highest, he would have to find that there was a case to answer.  The second option he outlined was for the respondent to submit that the court could not be satisfied beyond reasonable doubt that the charge had been made out because there was no evidence that the device had not been repaired, altered or adjusted since being tested in September 2002.  He then said, "If you were to make that submission I would have to say I would not be satisfied beyond reasonable doubt and dismiss the case".  The third option outlined was for the respondent to go into the witness box and give evidence on oath and be cross-examined by the prosecutor.  Given these choices, the respondent naturally elected the second course, whereupon the learned magistrate dismissed the complaint.

1. The notice to review raises two grounds of appeal:

"1       The learned magistrate erred in fact and/or in law in holding that the prosecution was required to satisfy him that the radar detection device had not been repaired, altered or adjusted within the meaning of regulation 10(1)(b) of the Traffic (Offence Detection Devices) Regulations 2002 [sic] since it was last used for the purpose of detecting a speeding offence.

2        The learned magistrate erred in fact and/or in law in failing to find the said charge proved in any event upon the basis of the respondent's admission that he was travelling at 110 kilometres per hour in a 100 kilometre per hour zone at the relevant time."

1. With respect to the second ground of appeal, the statements made by the respondent in endeavouring to cross-examine the police officer were not formal admissions and the learned magistrate should not have asked the respondent to confirm them as he did.  He should simply have corrected him by pointing out that cross-examination is confined to the putting of questions or suggestions.  Had the respondent given evidence, these unguarded statements could have been the subject of cross-examination by the prosecutor, but that is a different matter.  They had no evidentiary value and ground 2 provides no basis for interfering with the magistrate's order of dismissal.

1. Ground 1, however, has substance to it. The Regulations are made under the Vehicle and Traffic Act 1999, as amended by the Traffic Offence Detection Devices (New Arrangements) Act 2002. The latter Act inserted s42A, which provides:

"42A    (1) The regulations may –

(a)provide for the use of devices in the detection of offences including, without limiting the generality of this paragraph –

(i)…; and

(ii)the use of speed measuring devices in the detection of speeding offences; and

(b)prescribe requirements in relation to the installation, operation and testing of devices that are used in the detection of offences; and

(c)make provision for, and with respect to, the inspection, use and admissibility of evidence obtained from such devices; and

(d)make provision for, and with respect to, evidentiary matters associated with the installation, operation and testing of such devices; and

(e)deal with any incidental and ancillary matters."

Regulation 8 provides:

"8       Radar speed analysers or laser speed analysers may be used to detect speeding offences."

I have already set out reg10 so far as it is relevant.  It requires that a device must not be used for the purpose of detecting a speed offence unless, as was the case here, the device had been tested within the twelve months immediately preceding the date of operation, that is, the date of the offence detected by it.  It also provides that in the event that it has been repaired, altered or adjusted since it was last used for the purpose of detecting a speeding offence, it must be re-tested.  There was no evidence that the device had been repaired, altered or adjusted at any time after the test in September 2002.  If that had been the case, evidence would have been required that it had been re-tested, for reg10(1)(b) makes it mandatory to re-test it before it can be used for the detection of the offence in question and reg11 contemplates proof of the relevant testing by providing:

"11     In any proceedings for an offence –

(a)it is not necessary to prove the testing of a device other than the testing last preceding the date on which the offence is alleged to have been committed;"

There being no evidence that the device had been repaired, altered or adjusted in the six months from 10 September 2002, when it was tested, and 8 March 2003, when it was used to detect the speed at which the respondent was travelling, there was no foundation for any reasonable doubt that the prosecution case had been made out.  There was no reason for the learned magistrate to entertain a doubt that the testing on 10 September 2002 was the testing last preceding the date on which the offence was alleged to be committed.  Ground 2 is made out.

1. The appropriate order is that the motion to review be upheld and that the dismissal of the complaint and the verdict of acquittal be set aside.  Notwithstanding that the respondent elected not to call evidence but to submit that the case was not proven beyond reasonable doubt, it is inappropriate to substitute a verdict that the complaint was proved.  The respondent was invited to take that course by the learned magistrate indicating that, if he did, the latter would not be satisfied beyond reasonable doubt and would dismiss the case.  In doing so he was in error.  It would be unfair to preclude the respondent, having accepted that invitation, from now going into evidence if he is so minded.  I note that he had passengers who may have been able to assist his case, although his right to call witnesses was not alluded to when the options open to him were explained.  I order that the complaint be re-heard by another magistrate.