Asafiri, Haissam v D.P.P

[2007] NSWDC 384

CITATION:	Asafiri, Haissam v D.P.P [2007] NSWDC 384
EX TEMPORE JUDGMENT DATE:	27 February 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Conviction appeal is dismissed; the sentence appeal is upheld to the extent that the finding of guilt is confirmed; the conviction recorded is quashed; the financial penalty imposed by the learned magistrate is quashed and the court costs are also quashed. ; Pursuant to s 10 (1) (a) of the Crimes (Sentencing Procedure) Act 1999, HH finds the offender guilty and directs the charge to be dismissed.
CATCHWORDS:	Criminal Law District Court conviction and severity appeal - exceeding speed limit - allegation - 73kph in 60 kph - speed measured and recorded on approved speed measuring device - elements to be proved - speed limit 60kph - appellant's vehicle travelling in excess of 60kph - appellant disputes travelling speed - time at which approved speed measuring device activated in issue - police vehicle ahed for part of time appellant's car under observation - appellant passes police vehicle - finding that approved speed measuring device activated after appellant's vehicle passes police vehicle.
PARTIES:	Haissam Abdullah Asafiri Director of Public Prosecution
FILE NUMBER(S):	06/22/0633
SOLICITORS:	Cr: Ms Byrne

JUDGMENT
1. Senior Constable Setter was patrolling the Hume Highway in the early hours of Saturday 18 March 2006. Accompanying him was Constable Chu. At a point east of Boronia Road the police vehicle was travelling sixty-five kilometres in a seventy kilometre zone. A yellow Hyundai sedan driven by Haissam Abdullah Asafiri passed the police vehicle. That exercise happened on the border of the seventy kilometre zone. Across that border the speed limit was sixty kilometres per hour.
2. Senior Constable Setter’s evidence is the vehicle did not slow down but continued on in the sixty kilometre zone at about sixty-five to sixty-six kilometres. He allowed for a ten per cent tolerance and took no action. As the vehicle approached JCW Motorcycles, Senior Constable Setter says the vehicle accelerated; it must have been gently so, so that it was travelling in excess of seventy-three kilometres per hour. He maintained a two second gap and checked the speed. He says that in doing so he activated a video camera focused on the Hyundai.
3. In the police vehicle was an approved speed measuring device. It works on its own independent speedometer operating in the police vehicle. It had been checked on 22 September 2005 and was later checked again on 28 March 2006; that is ten days after this incident. On both occasions it was said to be operating accurately and properly. Senior Constable Setter has activated the device. It showed a speed on the target vehicle of seventy-three kilometres per hour. The traffic infringement notice was issued to Haissam Asafiri.
4. From the moment Senior Constable Setter approached him, Asafiri has claimed he was within the speed limit and indeed nominated the speed limit at sixty kilometres per hour. He chose to have the matter dealt with in the Local Court; there he pleaded not guilty. On 28 August last his matter was heard by Magistrate Barry. She found the prosecution case proved beyond reasonable doubt. Asafiri appealed; that appeal is now before me.
5. The court’s task is to rehear this matter upon the basis of the transcripts of evidence and exhibits tendered before the Local Court, and such other evidence as is received in this court by leave. Leave was given to the appellant to further cross-examine Senior Constable Setter.
6. The court’s power in determining the appeal enables it to either set aside the conviction or to dismiss the appeal. I remind myself the prosecution must prove the essential elements of this case; namely, that the speed limit was sixty kilometres per hour and that the appellant was exceeding it, and to prove each of these propositions beyond reasonable doubt.
7. The prosecution, however, does not have to prove every utterance of its witness, Senior Constable Setters; what must be proved are the two bald propositions that the speed limit was sixty kilometres per hour and that the appellant exceeded it. There is no dispute the speed limit in the relevant area was sixty kilometres per hour. What is strongly disputed is that the appellant was driving in excess of the speed limit.
8. I am satisfied beyond reasonable doubt the speed limit in the particular area was sixty kilometres per hour. I am satisfied that for some minutes before the Hyundai was stopped the police vehicle and the appellant’s car were travelling in a convoy of two. Initially the police vehicle was in front and subsequently, perhaps a kilometre or so before the vehicle was pulled up, the Hyundai came to be in the lead. Nor is there any doubt that the police vehicle measured the speed of the Hyundai as travelling at seventy-three kilometres per hour. The appellant, however, raises the issue of where that measurement was taken. In his cross-examination of Senior Constable Setter today he gained a concession from Senior Constable Setter that the speed device could physically be activated at any point in time.
9. I am satisfied when activated the speed measuring device was targeted at the Hyundai, measured the speed of the Hyundai as travelling at seventy-three kilometres per hour. Clearly the measurement could only be taken after the Hyundai passed the police vehicle. That passing, as I noted earlier, occurred almost on the border of the sixty/seventy kph.
10. The appellant argues the police officer was angry at being passed and looked at the appellant as he drove away from the police vehicle. He relies upon the tone of the police officer’s voice when first speaking to him. It is clear from the recording the police officer is speaking firmly to the appellant. I do not, however, regard him as speaking in an angry tone. It is to be remembered the police officer knew the video and audio were recording him; he had indeed activated both and that the combination could end up in evidence in court. In such circumstances it is highly improbable that he would have, if nothing else was restraining him from being so, not performed angrily for the purposes of having that recorded and exhibited in court as evidence. In my view there is nothing that could have caused the police officer to be angry.
11. The Hyundai was checked out before the police officer approached it. It was not out of registration; it was not uninsured; it was not wanted for any purpose or associated with the commission of any crime. There was no apparent notification in respect of any person normally driving, or sometimes driving, that vehicle. In those circumstances the matter must have presented itself only as the usual exceed speed limit situation.
12. Further, I am satisfied the speed measuring device was activated after the appellant passed the police officer. Indeed, that is the appellant’s own case. On the evidence that must have happened at a point in time when the appellant was in the sixty kilometre zone. I accept the appellant genuinely believes he was not exceeding the speed limit. I accept he knew the police officer was both in front of him and behind him at the relevant times. To make sense of these two propositions I have decided that it may be the appellant has not observed the sixty kilometre an hour sign, although to be frank that is merely speculation, but the first person to mention the speed limit being at sixty was the police officer.
13. If the appellant had not observed the sixty kilometre sign and continued to travel at what he thought was the speed limit, that would account for the speed that he was doing. As I say, that, however, is not an issue I need to resolve. What I need to resolve is whether the Crown has proved its case beyond a reasonable doubt and has excluded any possibility that the appellant was travelling at sixty kilometres an hour.
14. I have also considered the appellant’s good character. He has told the court he has not exceeded speed for at least four years and has all twelve points to which he is entitled in respect of his licence. That is something that can be taken into account in his favour in two ways: as to his believability and as to the likelihood of him committing this offence.
15. I note that I have taken it into account; nonetheless I am satisfied beyond reasonable doubt the prosecution has proved the appellant exceeded the speed limit of sixty kilometres per hour.
Discussion re sentence appeal

HIS HONOUR:

16. This appellant received an unrestricted licence in April 1991. Within two months he had exceeded the speed limit by more than fifteen kilometres an hour; thereafter regularly in 1992 there were two offences, 1993 four offences and a demerits point cancellation. 1994 there were four offences; 1997 he must have lost his licence because it was reissued in 1997; 1999 there were three offences and thereafter from May 2000 until this offence in March 2006, that is for a period of almost six years, he drove without any offences. What I infer from that is that he made a conscious effort to obey the laws of the road and to drive in a manner much more mature than he had earlier done. No doubt the magistrate also recognised that in the fine that she gave.

17. This offence occurred in the early hours of the morning on a dry road when traffic was light and when, so far as I can tell, nobody was endangered by the way in which he was driving. True it is that he exceeded the speed limit, but he exceeded the speed limit by less than fifteen kilometres an hour which is the lowest of the categories. In all the circumstances, I think it is appropriate that no conviction be recorded.

18. The formal orders that I make, therefore, are these: that the conviction appeal is dismissed; the sentence appeal is upheld to the extent that the finding of guilt is confirmed; the conviction recorded is quashed; the financial penalty imposed by the learned magistrate is quashed and the court costs are also quashed.