BORGHESAN v Police - [2007] SASC 86

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BORGHESAN v POLICE
[2007] SASC 86
Judgment of The Honourable Justice Layton
9 March 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN BREACH OF SPECIFIC SPEED LIMITS
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - STATUTORY PROVISIONS AS TO PRIMA FACIE EVIDENCE - AS TO AVERMENTS AND ALLEGATIONS
Magistrates Appeal - the appellant was charged with speeding and driving at a speed dangerous to the public, contrary to s 46 of the Road Traffic Act 1961 (SA) ("the Act") - at trial the respondent primarily relied on a certificate and photographic exposures as evidence of the accuracy of the results of the photographic detection device pursuant to s 79B(10) of the Act and in compliance with reg 17 of the Road Traffic Act (Miscellaneous) Regulations 1999 (SA) - a police officer also gave evidence as to the device used - whether the exposures and certificate complied with the statutory requirements and Regulations - whether the Magistrate erred in admitting the exposures and certificate into evidence - whether there was "proof to the contrary" - whether the Magistrate erred in admitting the police officer's evidence - whether the police officer was an expert - Held: The exposures and certificate prima facie complied with the Act and Regulations - the appellant failed to adduce "proof to the contrary" - the police officer's evidence was admissible in the circumstances - appeal dismissed.
Road Traffic Act 1961 (SA) s 46, s 79B, s 175; Road Traffic Act (Miscellaneous) Regulations 1999 (SA) reg 14, reg 15, reg 17; Australian Road Rules 1999 (Cth) r 20, referred to.
Porter v Kolodzeji [1962] VR 75, 78-79; DPP v Parsons [1993] VR 1, considered.

BORGHESAN v POLICE
[2007] SASC 86
LAYTON J.
Introduction

The appellant was charged with driving over the speed limit contrary to Rule 20 of the Australian Road Rules and driving at a speed which was dangerous to the public, contrary to s 46 of the Road Traffic Act 1961 (SA) (“the Act”).
The brief circumstances of the offence were that on 16 May 2005 the appellant was detected driving at a speed of 114 kilometres per hour in a 60 kilometres per hour zone, by a red light speed camera positioned at a “marked foot crossing”[1] along Portrush Road, Kensington.
[1] The Dictionary to the Australian Road Rules defines a “marked foot crossing” as an area of a road:
(a) at a place with pedestrian lights facing pedestrians crossing the road and traffic lights facing vehicles driving on the road; and
(b) indicated by a different road surface, or between 2 parallel continuous or broken lines, or rows of studs or markers, on the road surface substantially from one side of the road to the other.
The appellant contested the charges and on 29 September 2006 the matter proceeded to trial at the Adelaide Magistrates Court. In attempting to prove these offences, the respondent relied on the operation of a photographic detection device (“the device”) pursuant to s 79B(10) of the Act, and in compliance with reg 17 of the Road Traffic Act (Miscellaneous) Regulations 1999 (SA) (“the Regulations”).[2] The primary evidence adduced was the Certificate of Operation and Testing of Approved Photographic Detection Device (Exhibit P3) (“the certificate”). The respondent also relied on various certificates and photographic exposures in support of the accuracy of the results from the device.[3]
[2] Section 46 of the Road Traffic Act 1961 (SA) and r 20 of the Australian Road Rules are “prescribed offences” pursuant to reg 15 of the Road Traffic (Miscellaneous) Regulations 1999 (SA).
[3] Pursuant to s 175 of the Road Traffic Act 1961 (SA).
The respondent called two witnesses. The first, Senior Sergeant Marsh, testified about the device used and the exposures obtained. The second witness, Constable Keenihan, gave evidence in relation to her interview of the appellant.
During the course of the trial, the appellant objected to the tendering of the certificate on the basis of non-compliance with reg 17(2). The Magistrate overruled the objection and the matter proceeded. Upon completion of the evidence, the learned Magistrate reserved his decision. On 6 December 2006, the Magistrate delivered his reasons and found the appellant guilty of both charges.
The Statutory Scheme
Section 79B(10) of the Act relevantly provides:
(10) In proceedings for an offence against this section or proceedings for a prescribed offence—
(a) a photograph or series of photographs produced by the prosecution will be admitted in evidence if—
(i)      the photograph or each of the photographs was produced from an exposure taken, or electronic record made, by a photographic detection device; and
(ii)     the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with that use of the device, and a denotation as to date, time and location that appears as part of such a photograph will be accepted as proof, in the absence of proof to the contrary, of the date, time and location at which the exposure was taken or the electronic record made by the photographic detection device; and
(b) a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or any other member of the police force of or above the rank of inspector, and purporting to certify—
(i)    that a specified device used at a specified location during a specified period was a photographic detection device; and
(ii)            that the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of that device during that period, will be accepted as proof, in the absence of proof to the contrary, of the facts so certified; and
(c) where it is also certified in a document of a kind referred to in paragraph (b) that the device was designed and set to operate according to a specified system during that period, it will be presumed, in the absence of proof to the contrary, that the device was designed and set to operate according to that system during that period and did, in fact, so operate.
The section requires compliance with the requirements of the Act and the Regulations as to the testing of the devices, before any evidence obtained through the use of a device can be admitted into evidence. The respondent tendered a set of four photographs (Exhibit P7) (“the exposures”), in reliance on s 79B(10)(a). There were only two relevant photographs, as two were darker, less readable copies of the other two.
Regulation 14 defines apparatus that has been approved as photographic detection devices. The apparatus used in this case was a ‘dual speed red light camera’.[4] Regulation 17(2) sets out specific requirements for the operation and testing of such devices at ‘marked foot crossings’, and provides as follows:
(2) Where a photographic detection device referred to in regulation 14(a) is used to provide evidence of relevant offences, the following provisions must be complied with:
….
(c) if the device is used to provide evidence of speeding offences only, the device must be programmed and set to operate, and the induction loop and traffic light or warning lights must be linked up with the device, so that if the device registers a vehicle as passing over the induction loop at a speed equal to or greater than a speed set on the device—
(i) an exposure is taken, or an electronic record is made, of that vehicle from the rear and the date, time and code for the location at which the exposure is taken, or the electronic record is made, together with the lane in which the vehicle is travelling, are recorded on the exposure or electronic record; and
(ii) after a programmed delay, a second exposure is taken, or a second electronic record is made, of that vehicle from the rear and the date, time and code for the location at which the exposure is taken, or the electronic record is made, together with the lane in which the vehicle is travelling, the speed of the vehicle as registered by the device and the speed set on the device, are recorded on the exposure or electronic record;
[4] Road Traffic (Miscellaneous) Regulations 1999 (SA) Reg 14 (1)(a).
Grounds of Appeal
The appellant, who was represented by Mr Gluche before the Magistrate and by Mr Richter before me, now appeals against his convictions on the following five grounds:
1.That the Learned Magistrate erred in admitting into evidence a series of photographs pursuant to s 79B(10) of the Road Traffic Act, 1961 (Exhibit P7) as the requirements of that section had not been observed;
2.That the Learned Magistrate erred in admitting into evidence testimony of an expert nature from a witness (Marsh) who was not qualified to give such evidence;
3That the Learned Magistrate erred in admitting hearsay evidence as part of the Respondent’s case;
4That the Learned Magistrate erred in admitting into evidence a certificate (Exhibit P3) purportedly pursuant to s 79B(1)(b) and (c) of the Road Traffic Act, 1961 which document was nonsensical in that it had no intelligible meaning and thereby failed to satisfy the requirements of that section;
5That the Learned Magistrate erred in failing to find that the photographs tendered as part of the Respondent’s case (Exhibit P7) constituted evidence as to the contrary that the photographic detection device operated in accordance with a specified system.
The appellant’s contentions
The issues raised in this case are technical and involve the interpretation and application of section 79B(10) of the Act, in particular subsections (b) and (c).
The appellant’s primary argument is that the Magistrate erred in admitting into evidence the exposures 289A and 289B (Exhibit P7), on the ground that they did not comply with s 79B(10) of the Act. The appellant submitted that the first exposure taken, 289A, showed a time of 12:47:51, and the second exposure 289B, also showed a time of 12:47:51, despite the interval clock on the second exposure showing that an interval of one second had passed between the first exposure and the second exposure. It was submitted that the Regulations required that each exposure was to record the time of the exposure. As the same time is recorded on each exposure, when supposedly an interval of one second had passed, it was submitted that the device had not operated accurately and therefore the exposures were inadmissible pursuant to s 79B(10)(a) of the Act.
In the alternative, it was argued that if (contrary to the first argument), the exposures prima facie met the requirements of the Act, then the failure of the real-time clock to record the passing of an interval of one second was sufficient to raise doubt about the accuracy of the operation of the interval-clock in purporting to record one second. It was submitted that in the absence of evidence which explained the inconsistency, the fact of this inconsistency amounted to ‘proof to the contrary’, such that the exposures should not have been admitted.
The respondent’s contentions
The respondent, who was represented on appeal by Ms Makiv, submitted that the two exposures complied with the requirements of s 79B (10) of the Act for the following reasons:
·The two exposures were taken of the vehicle from the rear;
·The date, time and code for location as well as the lane of travel is noted on the data block on both exposures (being the requirements specifically set out in s 79B and reg 17 (2);
·In addition, the second exposure 289B displays the speed of the vehicle, the programmed delay (or interval between the first and second exposures) and the speed limit at the location in accordance with the certificate of operation and testing (Exhibit P3);
·Further the "time header" indicates the hours, minutes and seconds at which exposure was taken as set out in the certificate para 3( c)(ii).
Ms Makiv submitted that the certificate (Exhibit P3) tendered pursuant to s 79B(10)(b) and (c) fulfilled the requirements of those two subsections and of reg 17, and there was “no proof to the contrary" showing that they did not comply with these requirements.
In short, Ms Makiv submitted that the combination of the information displayed on the exposures (Exhibit P7) and the contents of the certificate (Exhibit P3), prima facie complied with the Act and the Regulations, and that in the absence of there being proof to the contrary, which there was not, the offence was made out by operation of the section.
It is convenient in these reasons to deal with the fourth ground of appeal before then considering the remaining grounds.
Ground 4 – Are the contents of the certificate nonsensical?
It was submitted that the learned Magistrate erred in admitting the certificate (Exhibit P3) into evidence pursuant to s 79B(1)(b) and (c) of the Act, on the ground that it was nonsensical in that it had no intelligible meaning, and therefore failed to satisfy the requirements of the Act. The appellant relies on the phrase which appears in para [3] of the certificate namely:
an exposure is taken of that vehicle from the rear and the date, time and code for the location is made together with the lane in which the vehicle is travelling is recorded on the exposure (emphasis added).
It is the word "made" that is suggested as being nonsensical. Mr Richter submitted that what was intended to be indicated in the certificate is that there would be "a record" of the date, time and code of the location made on the exposure. I agree that the wording is somewhat inelegant. I also note that in reg 17(2) there is a reference to either an exposure being “taken” or an electronic record being “made", whereas in the certificate there is a reference only to the exposure, but it is linked with the word "made" which is more apt for an electronic record. Notwithstanding the inelegance of the wording, the meaning is clear, namely that an exposure is “taken” of a vehicle from the rear and that the date, time and code of the location is taken (“made”) and “recorded” on the exposure. I therefore reject the appellant’s argument that this wording is a nonsense, and as a consequence reject the argument that it fails to satisfy the requirements of the Act and Regulations.
Grounds 1 and 5– The certificate and the exposures
These grounds comprised the major grounds of appeal, and I will first consider whether these two exhibits fulfil the requirements of the Act before then considering the submissions concerning “proof to the contrary”.
In my view the requirements of the Act and the Regulations in relation to s 79B (10)(a)(ii) of the Act were complied with in both exposures, in that they each denoted a date, time and location. The fact that the time is recorded on both exposures as being the same, does not indicate that there had not been compliance with that subsection, which simply requires that the time (hours, minutes and seconds) be recorded. These features were displayed on each exposure and this was sufficient compliance with the statutory provisions. The real issue in this case is whether the fact that the exposures both record the same time in hours, minutes and seconds amounts to "proof to the contrary" that the time shown on the exposure was accurate within the meaning of s 79B(10)(a)(ii). More specifically whether this same fact amounts to “proof to the contrary”, such that the presumption of correct operation of the device pursuant to s 79B(10)(c), does not apply.
The legislative intention of s 79(10)(a) and (c) indicates that once there is information displayed on the exposures in the relevant places in the data log, which accords with the contents of the certificate, the requirements of the section and reg 17 have been fulfilled. Thereafter, in the absence of “proof to the contrary”, the relevant presumption and evidentiary aids to proof apply.
In my view, the same applies in relation to the interpretation of s 79B(10)(b) and (c). Ms Makiv submitted that the certificate requirements in Exhibit P3 are shown on the second exposure 289B, namely the:
·speed of the motor vehicle which is shown in the data block under SPc;
·time and date are also displayed under those headings in the data block;
·code indicating the camera and location are displayed in the data block;
·programmed delay is also indicated interval header on the data block “Int” as 1 second;
·speed limit at that location is recorded as 60 km/h in the data block; and
·lane is also displayed
It follows, Ms Makiv submits, that the requirements of s 79B(10)(b) and (c) of the Act were complied with and the presumption in (c) applies, subject to “proof to the contrary”. I agree with this submission for the same reason as indicated in relation to s 79B(10)(a). In so finding, I also have taken into account the appellant’s argument in relation to the lanes displayed.
At the appeal hearing, Mr Richter raised an issue in relation to the lane in which the appellant’s vehicle was travelling. Mr Richter pointed to the fact that in the first exposure, 289A, the majority of the vehicle is visually seen as being in the left-hand lane and the second exposure, 289B, visually shows the appellant’s vehicle to be moving out of the left-hand lane into the next lane. Yet under the initials ‘LS’ in the data log in both exposures, it still refers to lane “1”. At trial, Senior Sergeant Marsh explained this difference. He stated that each lane is separately armed with an induction loop and the vehicle passing over the loop will register the lane of travel. He testified that:
The lane recording can only occur whilst the vehicle is travelling over the induction loop when the vehicle proceeds down the road, there is no way of monitoring it electronically, that can only occur visually.
In summary on this point, reg 17 requires, and the certificate (Exhibit P3) refers, to the need for the lane to be indicated in the data log. This is indicated in each exposure, and therefore prima facie this requirement has been met. The only potential relevance of the same lane being displayed in the data log, is if this in some way amounts to “proof to the contrary”. No argument was raised on this latter point, and in my view the fact of the vehicle straddling the two lanes, one of which is lane 1, is of no consequence in this case.
I therefore reject the appellant’s argument that the Magistrate erred in admitting the exposures into evidence.
Proof to the contrary
I will now consider the evidence and assess whether there is “proof to the contrary”.
The appellant was charged with exceeding the speed limit by driving his motor vehicle at 114 kilometres per hour, over the 60 kilometres per hour speed limit, and driving at a speed that was dangerous to the public. The date and location of the offence are relevant details, but the precise time of the day, particularly the number of seconds, does not form part of the offence.
Although the prosecution primarily relied on the exposures (Exhibit P7) and the certificate (Exhibit P3), supporting evidence was also given by Senior Sergeant Marsh. The appellant submitted that Senior Sergeant Marsh was not an appropriate expert and in particular criticised him on the basis that he could not explain why the same time was recorded on both exposures, and that such explanation as he did proffer lacked common sense.

Senior Sergeant Marsh gave evidence based upon the training he had been given and some operational experience. I will deal with the challenge to the expertise of Senior Sergeant Marsh, and the criticisms of his evidence, later in these reasons.
Senior Sergeant Marsh indicated that there were two individual timing mechanisms on the photographic detection device. One being a clock which showed the real-time, (‘the real-time clock’) which was used to record the time in the time header shown in the data block on the exposures. The other clock being “the interval-clock” which as the name suggests, was the clock responsible for the interval of time between the taking of the first exposure and the second exposure. The clock was programmed for a delay of one second as recorded in the data block of the second exposure under the interval header “Int”.
Senior Sergeant Marsh said on a number of occasions in the course of his evidence, that it was not the real-time clock which was crucial to the calculation of speed, but rather the interval-clock. According to his evidence, the interval-clock is precisely calibrated to be accurate to “a hundredth of a second”, and it is "more precise" than the real-time clock. Importantly, the interval-clock is the only clock relevant to the calculation of the speed of the vehicle which is displayed on the data block of the second exposure under the heading “SPc”. There is no evidence to suggest that the real-time clock which recorded the time, as distinct from the interval-clock, played any part at all in relation to the calculation of the appellant’s speed.
The officer also gave evidence that he understood from his training that the real-time clock could be "rounded up and down" in accordance with the limitation of clocks. However, he was unable to explain "how" it happened but simply stated the fact that his training told him it happened. It was only when he was pushed, in spite of the fact that he said he did not know "how" it happened, that he gave the answer, "if I am pressed on the point I'd have to say that the way I would see it working is that photograph "A" it rounding up and photograph "B” is rounding down”. This answer was only given under pressure. It was clearly guess work on his part, and thereafter there was cross-examination about this answer and his logic.
In my view, Senior Sergeant Marsh’s answers as to rounding up or rounding down of time are not to the point. An apparent inconsistency between the clocks of less than a second, does not prove that the time, at least to the minute, should not be accepted. This level of accuracy is not needed to make out the offence to which the evidentiary aids are directed, and the other matters of location and date as shown on the exposure are not challenged.
I therefore reject that aspect of the argument. However, there is still a further aspect of the appellant’s argument to be considered.
It was submitted that as the same time was recorded on the two exposures, this fact alone demonstrated an operational anomaly; namely that the photographic detection device was not correctly operating, either because it was not correctly set or because it did not operate correctly on the day. It was submitted that the fact of the same time being displayed, called into question which clock, and indeed whether both clocks, were either incorrectly set or not operating correctly. In addition, it was submitted that these concerns were not allayed by the evidence of Senior Sergeant Marsh, particularly when he said:
Most images that [he] sees have a second delay between – in their real time. It’s a rare occurrence where you have a situation like this…
Thus, it was submitted that there was proof to the contrary and that the certificate (Exhibit P3) therefore could not be used to prove the appellant’s speed.
In relation to this argument, there is no evidence which calls into question the setting or operation of the interval-clock and the programmed delay. This is a matter which is certified in the certificate (Exhibit P3), and indicated in the second exposure as being one second. It is the subject of Senior Sergeant Marsh’s evidence, who testified that it was not possible for the interval between the two exposures on this device to be more than one second. The fact that this time interval of one second is not confirmed by the real-time clock, does not amount to proof to the contrary of the correct setting and operation of the interval-clock. In addition, as previously referred to, the real-time clock is not relevant to the calculation of speed. The inability of the Senior Sergeant to be able to give a satisfactory explanation as to why or how the same time is displayed does not alter this conclusion. It is simply a lack of supporting evidence and cannot be turned around to be used as proof to the contrary.
I turn now to consider whether any of Senior Sergeant Marsh’s evidence should have been admitted.
Grounds 2 and 3 – Senior Sergeant Marsh’s evidence
The appellant argued that Senior Sergeant Marsh lacked expertise in relation to his evidence about the device used, and also gave hearsay evidence. In my view, the training program which he received and of which he gave evidence, as well as his own experience, enabled him to at least give certain evidence about the general operation of the Traffipax – III Sr device (Exhibit P8). This included evidence about the theoretical functions and practical operation of the devices. This enabled him to appropriately give evidence about the two clocks and their relative precision, the data block on the exposures, the programmed delay and role of the interval-clock being the critical clock relevant to the calculation of the speed. The other areas of his evidence relating to why or how the same time was shown on the exposures and his evidence about the rounding up and down which was the subject of criticism by the appellant, were matters which were beyond his knowledge and experience, as indeed he indicated in his evidence.
As with many experts in varying fields, it is inevitable that unless a person is for example an inventor or manufacturer, or a tester of a particular piece of equipment, their operational knowledge will frequently be derived from others.[5] I do not consider that the evidence of the officer should have been excluded and I note that the aspects of his evidence which have been the major focus of criticism by the appellant, were adduced during cross-examination.
[5] See general discussion Porter v Kolodzeij [1962] VR 75, 78-79; DPP v Parsons [1993] VR 1, 4-5.
I therefore reject this ground of appeal.
Conclusion
In summary, the appellant has failed to demonstrate that the Magistrate erred in relying upon the statutory presumptions by accepting the certificate and photographs into evidence pursuant to s 79B(10) of the Act. Further, the appellant has failed to demonstrate any error in the learned Magistrate’s acceptance of Senior Sergeant Marsh’s evidence. Finally, the appellant failed to point to sufficient evidence to the contrary which would satisfy me beyond reasonable doubt that the device did not operate in accordance with the Act and the Regulations. The appeal must therefore be dismissed.