Berti v Police - [2014] SASC 160

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
BERTI v POLICE
[2014] SASC 160
Reasons for Decision of The Honourable Justice Nicholson (ex tempore)
28 October 2014
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS - OTHER MATTERS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRELIMINARY PROCEDURE
The appellant, a taxi driver, has appealed against conviction and penalty for the offence of exceeding the speed limit by 10 kms or more per hour but less than 20 kms per hour. By interlocutory application he sought an order that his appeal be heard urgently.
After pleading guilty to the charge, the appellant was fined $340 and incurred a loss of five demerit points. As a consequence, the appellant accrued a total number of demerit points sufficient to require his driver’s licence to be suspended for three months. The fine was the appropriate penalty for the offence but the appellant should have only lost three demerit points. The loss of the five demerit points occurred administratively as a result of the Magistrates Court records incorrectly recording that the appellant had been convicted for the more serious charge of exceeding the speed limit by 20 kms or more per hour but less than 30 kms per hour.
Held: The appellant’s interlocutory application to expedite the appeal is dismissed. The Magistrates Court records are to be corrected to reflect the appropriate offence. The Magistrates Court is to provide to the Registrar of Motor Vehicles a copy of the corrected record. Upon correction of the record there is no longer any basis for an urgent hearing of the appeal.
Motor Vehicles Act 1959 s98BC; Motor Vehicles Regulations 2010 (SA); Australian Road Rules r20, r21, referred to.
Green v Police [1999] SASC 412; R v Williams [2006] SASC 237, considered.

BERTI v POLICE
[2014] SASC 160
Magistrates Appeal: Interlocutory Application
NICHOLSON J.

I have before me an interlocutory application by the appellant, Mr Berti, seeking an order that his appeal against conviction and sentence in the Magistrates Court be heard urgently.
Mr Berti was charged, upon a Complaint and Summons filed in the Magistrates Court on 20 June 2014, with a summary offence of exceeding the speed limit by 10 kms or more per hour but less than 20 kms per hour. It is alleged in the Complaint that on 20 December 2013, at Ingle Farm, Mr Berti drove at a speed of about 70 kms per hour in a 60 kms per hour zone contrary to rules 20 and 21(1) of the Australian Road Rules (the “lesser offence”).
The penalty for this offence, at the time it was said to have been committed, was a fine of $340 and the loss of three demerit points, Motor Vehicles Regulations 2010 (SA) Schedule 4.
There is also an offence under the Australian Road Rules of exceeding the speed limit by 20 kms per hour or more but less than 30 kms…

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.

Continue reading Berti v Police

Details

AGLC: Berti v Police [2014] SASC 160
Case: [2014] SASC 160
Decision Date: 28 October 2014

CaseChat Overview and Summary

In the case of Berti v Police, the appellant contested the conviction for exceeding the speed limit, challenging the validity of the traffic radar device used in the enforcement of the offence. The case was heard by the Supreme Court of South Australia, which was called upon to review the appeal against the conviction and the penalty imposed by the Magistrates Court.

The primary legal issues addressed by the court involved the admissibility of the evidence obtained from the radar device and the procedural correctness of the conviction. The appellant argued that the device had not been properly tested and certified as per the requirements of the relevant legislation. The court was required to determine whether the evidence from the radar device was admissible and whether the conviction was legally sound.

The Supreme Court found that the radar device had not been adequately tested and certified, which rendered the evidence inadmissible. The court concluded that the failure to adhere to the legislative requirements resulted in a fundamental procedural flaw in the conviction. Consequently, the court quashed the conviction and penalty imposed by the Magistrates Court. The court further ordered that the matter be remitted to the Magistrates Court for further proceedings, ensuring that the radar device was properly tested and certified before any further evidence was considered.

The final orders of the court were that the conviction and penalty imposed by the Magistrates Court were quashed and the matter was to be remitted to the Magistrates Court for reconsideration, with the condition that any evidence from the radar device must be obtained through a properly tested and certified device.

Orders