Di Pietro v Police - [2009] SASC 325

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
DI PIETRO v POLICE
[2009] SASC 325
Judgment of The Honourable Chief Justice Doyle (ex tempore)
13 October 2009
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
Appellant charged with one count of driving a motor vehicle at a speed exceeding that indicated on a speed limit sign on a road on which the appellant was travelling - appeal against the Magistrate's finding that charge proved - appeal dismissed.
Australian Road Rules r 20; Road Traffic Act 1961 (SA) s 175(3)(ba), referred to.

DI PIETRO v POLICE
[2009] SASC 325
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): By a complaint filed in the Magistrates Court, Mr Di Pietro was charged with one count of driving a motor vehicle at a speed exceeding the speed indicated on a speed limit sign on the road on which Mr Di Pietro was driving, an offence against rule 20 of the Australian Road Rules. After a trial, a m agistrate found Mr Di Pietro guilty of the offence charged. The Magistrate fined Mr Di Pietro and ordered that he pay the prosecution’s costs.
Mr Di Pietro appeals against the Magistrate’s finding of guilt and the consequential orders that the Magistrate made.
Mr Di Pietro represented himself in both the Magistrates Court and in this Court. The basis upon which he appeals is not clear. The notice of appeal lists his grounds of appeal as “not guilty”, “reasonable doubt” and “failed court process”.
However, in his submissions today before me, Mr Di Pietro quite clearly made his points, which related to the reliability of the evidence of Constable Sivewright and the reliability of the reading obtained by Constable Sivewright.
Constable Sivewright gave evidence in the Magistrates Court. He said that he was on uniformed patrol duty during the morning of 21 October 2008. He was operating a laser device capable of detecting the speed of motor vehicles, known as an LTI Ultralyte laser, from a position in Dry Creek.
Constable Sivewright gave evidence that he was trained in the use of the device and that he was certified to use it. He gave evidence that he had been using that device for over five years.
He had calibrated the device before starting his shift. The tests that he had performed on the device indicated that it was working properly. A certificate of accuracy relating to the tests that Constable Sivewright had performed that morning was tendered as an exhibit at the hearing before the Magistrate. The certificate indicated that the device was accurate to within plus or minus 2 km/h. The certificate of accuracy is taken to be proof that the relevant device was accurate to the extent specified in the certificate on the day that it was tested: s 175(3)(ba) of the Road Traffic Act 1961 (SA) (“the RTA”).
Constable Sivewright was targeting southbound vehicles emerging from a corner on Churchill Road North. They were travelling towards him. The area of road that he was targeting had one lane of traffic in each direction. The traffic was very light at the time. There was a sign indicating a 60 km/h speed limit along Churchill Road North, located 30 m before that corner.
About 9.05 am, using the speed detection device, he detected a car travelling towards him at 82 km/h. The car was 423 m from him at the time that he recorded its speed. He gave evidence that there were no other vehicles within the sights of the laser at that time.
Constable Sivewright followed the car in his patrol car. He stopped the car. The driver of the car was Mr Di Pietro. Mr Di Pietro said that he had been travelling at 60 km/h. Constable Sivewright informed Mr Di Pietro that he would be given an infringement notice and asked Mr Di Pietro whether he would like to have the notice posted to him. Mr Di Pietro replied: “That would be good if you could post it, I’m late for a meeting.”
That is a summary of the evidence that was given by Constable Sivewright before the Magistrate.
As I understand it, the main thrust of Mr Di Pietro’s cross-examination of Constable Sivewright was to the effect that the vehicle that Constable Sivewright detected was not Mr Di Pietro’s vehicle.
Mr Di Pietro cross-examined Constable Sivewright about whether the training that he had undertaken in relation to the use of the device had included a component relating to how to aim the device. He further asserted that at the time that it was alleged that his vehicle was detected by the device, there were other vehicles in the sights of the device and that Constable Sivewright did not have Mr Di Pietro’s vehicle in his sights at the time that the device recorded the speed. Constable Sivewright rejected these propositions, saying that although he was unable to identify the make and model of the vehicle that he had detected, he could see through the sights of the device that it was red.
In his evidence, Mr Di Pietro said that he was travelling south along Churchill Road North. He said that as he was coming around the corner, there was a car travelling towards him halfway down the road. There was also a car behind him, travelling in the same direction as his car. He said that he was sure that he was travelling at 60 km/h as his vehicle had both a speedometer and a GPS which displays the speed of the vehicle.
In cross-examination, he confirmed that he was stopped by Constable Sivewright at 9.05 am. He confirmed that he had told Constable Sivewright that he was late for a meeting. He said that the meeting started at 9.30 am. He explained that what he meant was that if he was kept any longer he would be late for his meeting. He emphasised that at the time he was stopped, he was not late for the meeting.
Mr Di Pietro agreed that there were no cars travelling in the same direction immediately in front of him, but that there may have been a truck a bit further in front of him. Mr Di Pietro confirmed that his car was red.
In an ex tempore judgment, the Magistrate found Mr Di Pietro guilty of the offence charged. The Magistrate considered that by operation of s 175(3)(ba) of the RTA, there was a presumption that the device used by Constable Sivewright was accurate on the day in question to the extent specified in the certificate of accuracy. He concluded that although Mr Di Pietro had challenged the accuracy of the device, he had not adduced any evidence to rebut the presumption created by that section.
The Magistrate said that he accepted the evidence of Constable Sivewright. In doing so, I take it that the Magistrate accepted that his evidence established that the device was trained on Mr Di Pietro’s vehicle at the time that it was activated.
I have considered the affirmation that Mr Di Pietro filed in advance of the hearing, the written outline of argument that he provided, and the submissions that he has made today.
The Magistrate clearly accepted the evidence of Constable Sivewright. He rejected the evidence given by Mr Di Pietro. By this, I take it that the Magistrate meant that he rejected it insofar as it was in conflict with the evidence of Constable Sivewright.
Mr Di Pietro referred to the fact that the police prosecutor indicated before the case was heard that if Mr Di Pietro were to plead guilty, he would avoid the risk of a costs order if he was found guilty, and the police prosecutor further indicated that if there was a plea of guilty, he could arrange for the number of demerit points that the offence would otherwise attract to be reduced. The fact that this offer was made has no bearing on the decision by the Magistrate. The Magistrate’s decision was based on the evidence before him.
Before the trial, the police sent to Mr Di Pietro a copy of the expiation notice that had been given to him, a copy of notes made by Constable Sivewright, a copy of a certificate of accuracy of the laser device used by Constable Sivewright, and a copy of an affirmation by Constable Sivewright, which is, in effect, his statement of evidence.
The statement was not tendered in evidence by the prosecutor. The reason for this is clear. Constable Sivewright gave his evidence orally; there was no reason for the prosecutor to tender the statement nor would it have been appropriate to do so.
Mr Di Pietro complains that although reference was made to the statement in the course of questioning Constable Sivewright, the Magistrate would not permit him to rely on the statement in his closing address to the Magistrate.
The Magistrate was clearly right. There may have been some misunderstanding on the part of Mr Di Pietro but it is quite clear that the statement was not part of the evidence before the Magistrate and so could not be relied on by Mr Di Pietro in his closing address. In any event I am not persuaded that the part of the statement on which Mr Di Pietro wanted to rely contradicted the evidence of Constable Sivewright as suggested by Mr Di Pietro.
Mr Di Pietro also complains that the Magistrate did not read the statement or allow Mr Di Pietro to use it. The Magistrate was correct in this respect for the reasons that I have already given.
Apart from that, Mr Di Pietro criticises the Magistrate’s findings of fact. In particular, Mr Di Pietro contests the evidence by Constable Sivewright to the effect that there were no other vehicles in the vicinity of Mr Di Pietro at the time the laser reading was taken. He also contests the acceptance by the Magistrate that the constable accurately targeted his vehicle at a distance of 400 m. In effect, Mr Di Pietro argues that the Magistrate should not have accepted the claim by Constable Sivewright that he accurately targeted Mr Di Pietro’s vehicle and obtained a reliable reading of its speed.
Mr Di Pietro made his points well and he made them clearly. These are all matters that the Magistrate had to decide. The Magistrate saw and heard the two relevant witnesses. He heard the cross-examination of Constable Sivewright by Mr Di Pietro. In the end the points made by Mr Di Pietro are just that. They are arguments that he could legitimately put forward before the Magistrate, but it was for the Magistrate to decide what weight they had, and to decide whose evidence he would accept.
It was open to the Magistrate to prefer the evidence of Constable Sivewright. On appeal, I am not in a position to say that it was not open for the Magistrate to reach the conclusion that he did.
For those reasons I dismiss the appeal.
I order that Mr Di Pietro pay the respondent’s costs of the appeal, fixed at $100.00.