ARNOLD v Police - [2006] SASC 178

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
ARNOLD v POLICE
[2006] SASC 178
Judgment of The Honourable Justice Perry (ex tempore)
14 June 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
The appellant appealed against his conviction and sentence in the Magistrates Court on a charge of driving in a manner dangerous to the public - timed by speed camera at 107 kilometres per hour in a 60 kilometres per hour zone on a busy major road - held that his challenge to the accuracy of the speed camera was properly dismissed - minimum fine of $300 and 6 months licence disqualification not appealable, notwithstanding the hardship resulting from the licence disqualification given his personal circumstances. Appeal dismissed.
Road Traffic Act 1961 s 46, referred to.

ARNOLD v POLICE
[2006] SASC 178
Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals against the conviction recorded against him and the sentence imposed in the Magistrates Court sitting at Holden Hill following a trial on a complaint charging him with two traffic offences.
Both offences arose out of a passage of driving on Grand Junction Road at Valley View on 28 January 2004.
The appellant was charged on count 1 with driving in a manner dangerous to the public, contrary to s 46 of the Road Traffic Act (1961) (“the Act”), and on count 2 with driving over the speed limit, contrary to Rule 20 of the Australian Road Rules. The speed limit was 60 kilometres per hour and it was alleged that the appellant drove at 107 kilometres per hour.
The appellant was unrepresented both at first instance and on the hearing of the appeal to this Court.
The appellant attended in the court below when the matter was called on for hearing, but he failed to return for the continuation of the trial after the luncheon adjournment. It appears that he approached the registry staff during the luncheon adjournment and explained to them that he had matters to attend to in the afternoon and could not return then.
He was warned that the trial might proceed in his absence. He left a note in the registry explaining why he could not come back. He had expected that the matter would conclude during the morning but it did not start at 10.00 am, no doubt due to other matters, and his case did not start until 11.50 am. It was not completed until late in the afternoon, following the resumption of the hearing after the luncheon adjournment.
In his notice of appeal, the appellant does not raise any issue as to the circumstances in which the trial resumed in his absence. However, he raised the matter during the course of the hearing of the appeal. I indicated to him that I could see no fault in the decision of the magistrate to proceed in his absence.
On completion of the prosecution case, the magistrate gave ex tempore reasons in which he found count 1 proved. He dismissed count 2 on the basis that it was an alternative to count 1.
He then directed that notice be given to the appellant to appear in court at a later date to be heard on the question of penalty. The notice was duly served and subsequently the appellant attended in court when the magistrate heard submissions on penalty.
After hearing the submissions, the magistrate imposed a fine of $300 which, together with costs and a levy, amounted to a total of $989. As well, he disqualified the appellant from holding or obtaining a driver’s licence for six months, commencing on 6 May 2006. The disqualification was subsequently suspended pending the appeal.
In his notice of appeal, the appellant advances two grounds The first is:
Defendant requires his licence due to hardship.
The second ground is:
Defendant has not been given copy of evidence to prove himself not guilty.
The second ground relates to the appeal against conviction. In a sense this was not pursued, as the appellant informed me at the commencement of the hearing that he had come to court to argue the hardship ground. But during the course of his address, he did advance various complaints as to the manner in which the conviction was recorded, more particularly as to what he regarded as a lack of an opportunity to present the case which he wanted to present.
In deference to the fact that he has been unrepresented, I will deal briefly with the appeal against conviction, even although it was but faintly pressed.
The passage of driving which resulted in the charges was detected at about 7.45 am on a speed-detection camera set up on Grand Junction Road at Valley View focusing on eastbound traffic. Mr Verri, the speed-camera operator, gave evidence as to the procedures involved in setting up the camera, and his observation of the registration of the speed of 107 kilometres per hour as the defendant’s motor vehicle travelled through the camera’s field of vision. The speed limit in this area was 60 kilometres per hour.
Mr Verri prepared the paperwork associated with the matter, including the various evidentiary certificates.
The appellant’s cross-examination of Mr Verri was directed towards challenging the accuracy of the speed-detection camera reading. He did not deny that he was the owner of the vehicle and the driver of it at the time in question.
Pursuant to s 175 of the Act, various certificates were tendered by the prosecutor, including a notice in the Government Gazette of 20 September 1999 authorising the use of the camera in question, and a certificate of accuracy of the speedometer of the car used in a test drive-through which indicated that, if anything, the camera was reading slightly lower than the actual speed of the car used in the test drive-through.
A test drive-past of the camera in question was performed by the supervisor of the traffic camera unit, Mr Melvern Taylor, who performed the test when the camera unit was set up. He drove past the unit at what his car speedometer recorded as 60 kilometres per hour, which the unit recorded as a speed of 57 kilometres per hour.
An RAA report with respect to the speedometer of his car showed that when his car was recorded on its own speedometer as travelling at 60 kilometres per hour, the actual speed was in fact 57 kilometres per hour.
These checks do not substantiate the complaint that the accuracy of the speed-detection camera was questionable.
The gravamen of the argument advanced by the appellant as to this issue was that he was denied an opportunity to obtain a copy of the operation manual associated with the speed camera in question. This, he contended, would have indicated that there were certain circumstances in which, if the camera was not set up properly, the readings could not be relied upon.
He had seen in a TV program reference to a manual used in New South Wales as to the operation of similar speed cameras. At one of the hearings which preceded the trial of this matter he requested production of that manual, known as the Silver Eagle Program Operation Manual. Endorsed on the complaint is a note by the magistrate that the manual by that name was unknown to the prosecutor. The request was interpreted to mean a request for the “police service operation manual for radar operation”. There does not appear to have been an order made for its production. When the appellant pursued his request with the prosecutor, according to his submission made on the hearing of the appeal, he declined to furnish a copy of the manual to him.
The difficulty with the appellant’s argument in that respect, is that there is nothing before me to indicate that his possession of that manual would have enabled him to challenge the accuracy of the machine in question or its operation at the time when the evidence was gathered which resulted ultimately in his conviction on the charge in question.
As I have indicated, the tests which were done on this machine in this position after it had been set up, tend to dispel any possibility that there was any irregularity in its recording of the speed. Furthermore, I would hardly think that the court needs to be given a copy of the operating manual in order to conclude that if a machine of this kind is not set up properly, the readings may not be accurate. The evidence was that it was set up properly. The statutory presumptions arising from the tender of the various certificates put any arguments of the kind which the appellant wished to raise, beyond his reach.
Subsequently, when the appellant was interviewed at his home by a police officer and it was put to him that his car was timed at 107 kilometres per hour in a 60kilometres per hour zone, he said, “No, I didn’t even know. Thought it was an 80 km/h zone”. When it was further put to him “I consider a speed of 107 km/h within a 60 km limit to be a speed dangerous to other road users”, he replied, “I didn’t know I was travelling at that speed”.
When asked how often he had travelled on the road upon which the offence was detected, he said it was the second or third time he had done so.
When asked what he considered to be the traffic volume at the time, he answered, “Heaps of traffic, that’s why I was confused by the 107 km/h”.
Having regard to those questions and answers, the magistrate properly concluded that the appellant did not expressly deny that he was travelling at the speed alleged. As I have said, as for his attack on the reliability of the speed detection camera, there was no evidence before the magistrate to throw any doubt upon its accuracy. The magistrate correctly rejected that part of the appellant’s defence.
There is no doubt that the circumstances, including the speed at which the appellant was proved to have been travelling, and the state of the traffic conditions at the time, justified the conclusion that the appellant was driving at a speed or in a manner which was dangerous to the public, within the meaning of s 46 of the Act.
The conclusion that it was proper to record a conviction of the charge of driving in a manner dangerous to the public was, in my view, soundly based and is not susceptible to interference on appeal.
As to the appeal against sentence, the appellant advanced a plea complaining of the harsh manner in which the licence suspension operates, given his personal circumstances.
He is 26 years of age and lives on Centrelink payments. His partner is expecting his child. She is 18 years of age.
He has not been able to secure rental accommodation near to the city. He said that the best accommodation he could find was at Woodchester, which is 8 kilometres from Strathalbyn and about 25 kilometres from Mount Barker.
He is intending to follow a course to qualify for year 11 leading to year 12 at Adelaide Hills Vocational College at Mount Barker. He is obliged at the moment to ride his bike to pursue that course.
He has lived about two months at the address at Woodchester, having moved there more or less at the time he was sentenced in the Magistrates Court.
He has to take his partner to and from hospital for pre-natal checks.
Given that he is living in such a remote location, and given his other circumstances, the suspension of his licence will operate harshly upon him.
But the suspension, and for that matter, the fine, were the minimum which were then provided in s 46 of the Act. At that time, the minimum period for disqualification was that which was imposed here, that is, six months, whereas in a subsequent amendment the Act now provides for a minimum of 12 months licence suspension.
The difficulty which the appellant faces is that pursuant to s 46(3)(b) of the Act
The disqualification prescribed by paragraph (a) [of s 46(3)] cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification less than the prescribed minimum period but not less than one month.
In this case there was no application to have the offence declared trifling, and no evidence was given on oath. Indeed, in any event, I do not see how the offence could properly have been characterised as trifling. The personal circumstances of an offender could not justify a certification that the commission of the offence was trifling.
However the matter is approached, the appellant received the minimum penalty which could have been imposed.
In those circumstances, no ground could be made out upon which to allow the appeal against sentence.
I should say, however, that in questioning the appellant as to his present situation, I express the view that I doubted that he had received the assistance which he might have been given from appropriate welfare agencies, to have found more suitable accommodation, particularly in view of the pregnancy of his partner. I suggested to him that he might inquire further as to that.
As far as the appeal is concerned, both as to conviction and penalty, the order is that the appeal be dismissed.
[AFTER DISCUSSION WITH COUNSEL]
There is no application for the costs of the appeal. Each party will bear their own costs.
The suspension of the order for disqualification will cease at midnight on Friday 16 June 2006, and the disqualification will then become operative.