Elliott v Police - [2009] SASC 292

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ELLIOTT v POLICE
[2009] SASC 292
Judgment of The Honourable Justice Sulan
18 September 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
Appeal against conviction - appellant charged with driving a vehicle in excess of the speed limit - statutory presumption that the laser speed gun recorded speed accurately in absence of proof to the contrary - whether Magistrate should have been satisfied of the accuracy of the laser speed gun - whether Magistrate erred in preferring the evidence of the prosecution witnesses in relation to the speed at which the appellant was travelling - whether Magistrate erred in permitting the prosecution to reopen its case to tender a correctly dated certificate of accuracy - appeal dismissed.
Road Traffic Act 1961 (SA) s 175(3)(ba), referred to.
Redman v Klun (1979) 20 SASR 343; Cazzol v Fuss (1988) 6 MVR 350; R v Bonython (1984) 38 SASR 45; Reid v Kerr (1974) 9 SASR 367; Higgins v Parker (1984) 35 SASR 229; Royal v Prescott-Clarke [1966] 1 W.L.R. 788, discussed.

ELLIOTT v POLICE
[2009] SASC 292
Magistrates Appeal

SULAN J: This is an appeal against a conviction imposed by a Magistrate at the Elizabeth Magistrates Court. On 4 June 2008, the appellant was charged with driving a vehicle at 73 kilometres per hour on First Street, Gawler, in excess of the speed limit of 50 kilometres per hour, contrary to r 25(2) of the Australian Road Rules.
Prosecution case at trial
At the trial, the prosecution called two witnesses, Constable Stevenson and Constable O’Connell. Constable O’Connell gave evidence that she was operating an UltraLyte 100 LR Laser Speed Gun on First Street, Gawler. She and Constable Stevenson were 25 metres from the corner of First Street and Sheriffs Road, on the western side of First Street facing north. They were observing vehicles travelling south along First Street. There was a traffic roundabout approximately 500 metres north of their position. There are traffic control signs on the roundabout.
Constable O’Connell said that she pointed the laser gun at the appellant’s car, which was approximately 560 metres from where she was standing. It is not disputed that the roundabout was between the position that the police were situated and the appellant’s car. Constable O’Connell said that the laser gun recorded a speed of 73 kilometres per hour. The appellant who, was the driver, stopped the car a few metres from where the police had positioned themselves, when he was requested to do so. Constable O’Connell gave evidence that she had the laser gun in her hand. She turned it towards the appellant so that he could read the speed it had recorded. However, the appellant told her that he did not want to see it. He said that the allegation that his car was exceeding the speed limit and travelling at 73 kilometres per hour was “bullshit”. He told the police officer that he was travelling at 50 kilometres per hour.
Constable Stevenson gave evidence that he tested the laser gun on 4 June 2008 at the police station before he and Constable O’Connell left to take up their duties for that day. He repeated the test at the conclusion of their shift. On each occasion, the test demonstrated that the laser gun was operating accurately within the manufacturer’s specifications. It was suggested to Constable Stevenson that he did not test the machine against a moving target. He said that the test did not require conducting a check against a moving target. There was no expert evidence to support the contention that, for the test to be accurate, it must be conducted with a moving object.
The prosecution tendered a Certificate of Accuracy pursuant to s 175(3)(ba) of the Road Traffic Act 1961 (SA). The certificate was tendered as an aid to proof of the accuracy of the laser speed gun. The certificate originally tendered was incorrectly dated. The Magistrate permitted the prosecution to reopen its case to tender a correctly dated certificate at the conclusion of the defence case.
Defence case at trial
The appellant gave evidence that he was driving with the cruise control of his car set at 50 kilometres per hour. He had not had any tests performed to ascertain that the speedometer or the cruise control was accurate. The appellant contended that it was not possible for the police officer to have taken an accurate reading because the officer’s line of sight would have been obscured by the traffic on the road and the existence of road traffic signs on the roundabout. The appellant submitted that the prosecution witnesses were lying and alleged that the speed was concocted by Constable O’Connell. The appellant challenged the police witnesses about their position when they were operating the laser gun. The appellant contended that they were on the eastern side of the road, not the western side as they had described in their evidence. The appellant further contended that Constable Stevenson could not be relied upon due to inconsistencies between his evidence and the contents of his written, signed statement. In his statement, Constable Stevenson stated that he had approached the appellant’s car on one occasion, however in cross-examination he admitted it could have been twice and that he had walked around the vehicle inspecting it. It was on this basis that the appellant contended Constable Stevenson was lying.
The appellant objected to the late tender of the correctly dated Certificate of Accuracy. The appellant contended that the substituted certificate was false and misleading and that it should not be accepted into evidence.
Magistrate’s findings
The Magistrate rejected the appellant’s contentions concerning the unreliability of the test and the inaccuracy of the Traffic Speed Analyser: He said:
You also made unsubstantiated claims concerning the unreliability of the test performed on the morning of the incident, the accuracy of the instrument, the competence of the prosecutor and the physical impossibility of the analyser locking onto your car and maintaining its aim. You made those final claims based upon your expertise as a shooter and a marksman, and your training as a fitter and turner, and as a maintenance fitter and electronic technician. I do not question your training or skills, Mr Elliott, but you have not provided any independent proof of your claims to expertise or the unreliability of the test or the instrument.
The Magistrate further concluded that the roundabout and signs did not constitute an insurmountable obstacle to the use and accuracy of the reading recorded by the laser gun.
The appellant further submitted at trial that at the time of the alleged offence he was driving with his cruise control set at 50 kilometres per hour. The Magistrate rejected the appellant’s contention that the police witnesses were lying and that the officer had fabricated the speed. To the extent that there was a conflict between the evidence given by the appellant and the police officers, the Magistrate preferred the evidence of the prosecution witnesses.
The Magistrate made the following findings with respect to the speed at which the appellant was travelling:
I am not satisfied by your evidence you could not be exceeding 50km/h just because your cruise control was operating. I have only your claim that you were using cruise control and I have only your word it was accurate. I am not convinced by your evidence in this regard.
At trial, the Magistrate accepted as evidence a Certificate of Accuracy to prove the accuracy of the speed traffic analyser pursuant to s 175(3)(ba) of the Road Traffic Act. The certificate was dated 19 March 2008. After the prosecution had closed its case and the defence had completed its evidence, the Magistrate queried the date on the certificate. The prosecutor acknowledged that the date on the certificate was incorrect and that the laser gun had in fact been tested on 4 June 2008.
The prosecutor sought to re-open the prosecution case to tender a correctly dated certificate. The Magistrate accepted that the error was of an administrative nature arising from ‘an incidence of inadvertence’ and permitted the prosecution to re-open the case and to tender the amended certificate with the correct date.
The appeal
The appellant submits that the Magistrate erred in finding that the prosecution had proved its case beyond reasonable doubt. He submits that the Magistrate should not have been satisfied of the accuracy of the laser gun in measuring the speed of his vehicle. He further submits that the Magistrate erred in preferring the evidence of the prosecution witnesses in relation to the speed at which the appellant was travelling. Finally, he contends that the Magistrate should not have allowed the prosecution to reopen its case in order to tender a correctly dated Certificate of Accuracy.
Accuracy of the Traffic Speed Analyser
The appellant submits that the Magistrate erred in concluding that the speed-reading was accurate because of the distance between the operator and the appellant’s vehicle and because there were signs on the roundabout which would have obstructed the beam from the laser gun. The appellant tendered a photograph to show the position of a number of the signs and traffic islands in question to support this contention.
The respondent relies upon the evidence of the prosecution witnesses that the positioning of the signs and traffic islands did not prevent an accurate speed-reading from being obtained.
At trial, the prosecution had sought to rely on s 175(3)(ba) of the Road Traffic Act 1961(SA), which provides:
A document produced by the prosecution and purporting to be signed by the Commissioner of Police, or by any other police officer of or above the rank of inspector, and purporting to certify that a specified traffic speed analyser had been tested on a specified day and was shown by the test to be accurate to the extent indicated in the document constitutes, in the absence of proof to the contrary, proof of the facts certified and that the traffic speed analyser was accurate to that extent on the day on which it was so tested and, for the purpose of measuring the speed of any motor vehicle-
(i) in the case of traffic speed analyser that was, at the time of measurement, mounted in a fixed housing- during the period of 6 days immediately following that day; or
(ii) in any other case-on the day following that day,
whether or not the speed measured differed from the speed in relation to which the analyser was tested or the circumstances of the measurement differed in any other respect from the circumstances of the test.
The Certificate upon which the prosecution relied, and which was tendered at the trial states as follows:
PD 477
CERTIFICATE OF ACCURACY OF TRAFFIC SPEED ANALYSER
LTI ULTRALYTE 100LR LASER
Pursuant to Section 175(3)(ba) of the Road Traffic Act 1961
I DCI SHANAHAN                     certify that the Traffic Speed Analyser known as
        (Officer of Police)
LTI ULTRALYTE 100LR Laser Serial Number: UXO10277
Was tested before use on 04 / 06 / 2008 at or near the commencement of the use and on 04 / 06 /2008 at or near the completion of use and was accurate to within manufacturer’s specifications namely + or – 2 km/h.
Signed (DCI Shanahan)            DCI         13262         on    27 / 03 / 2009
   (Signature of Officer of Police)               (Rank)         (ID)  (Date)
The subsection is an evidentiary aid to proof of the accuracy of the instrument which recorded the speed. The necessary requirements for the admission of the certificate are, first, that it be signed by the Commissioner of Police or by any other police officer of or above the rank of inspector. Secondly, the document must certify that a specified traffic speed analyser has been tested on the specified day. The test must be conducted, either on the day, or the day before the date upon which the speed of the offending vehicle is recorded. Thirdly, the test must show that the instrument is accurate to the extent indicated in the document. When a complying certificate is tendered then, in the absence of proof to the contrary, the facts stated in the certificate are deemed to have been proved.
The document tendered certified that the instrument was accurate to within the manufacturer’s specification, namely, plus or minus two kilometres per hour and that the test had been carried out on the day upon which the offending speed had been recorded.
The facts which are established in this case are, first, that the laser gun in question was tested on 4 June 2008, both before and after it was used to record the speed of the appellant’s vehicle. Secondly, that the test demonstrated that the machine was accurately recording speeds within plus or minus two kilometres per hour, and that this was within the manufacturer’s specifications. Thirdly, that the document evidencing the accuracy of the traffic speed analyser was signed by a police officer of the rank of Detective Chief Inspector.
The appellant seeks to argue that the laser gun had not accurately recorded the speed of his vehicle. He contends that it was impossible for the laser gun to have recorded the speed because of the distance his vehicle was from the position at which the officer was when she recorded the speed. Further, the appellant contends that the signs on the roundabout would have obstructed the laser gun from accurately recording the speed of his vehicle. The appellant makes his claims relying solely upon his expertise as a shooter and marksman and his training as a fitter and turner, maintenance fitter and electronic technician.
As to the accuracy of the laser gun, the prosecution relies on the certificate to which I have earlier referred. The question to be considered is how the statutory presumption contained in s 175(3)(ba) operates, and whether that presumption has been displaced by the evidence in this case. The appellant not only challenges the accuracy of the instrument, but he also challenges the evidence of the prosecution that he was driving at an excessive speed.
In Redman v Klun,[1] King CJ referred to s 175(3)(ba) of the Road Traffic Act 1961, as it then was in 1979. The section was similarly worded to the current section, albeit it dealt with the accuracy of speedometer readings. King CJ said:[2]
I mention, only because it was referred to in argument, that the evidentiary provision in aid of proof of the accuracy of the speedometer contained in s. 175(3)(ba) of the Road Traffic Act, 1961, as amended, carries no implication that such a certificate as therein referred to is required in cases in which a speedometer reading is relied upon. The efficacy of the section as an aid to proof, where the accuracy of the police speedometer is in issue, is that the certificate establishes the accuracy of the speedometer “in the absence of proof to the contrary” thereby casting an onus on the defendant to offer affirmative evidence “to the contrary”, if the accuracy of the police speedometer is placed on issue. What is in issue, however when an alleged speed is disputed may not be the accuracy of the instrument itself but whether its measurement has been correctly read and reported.
[1] (1979) 20 SASR 343.
[2] Ibid, 345.
The remarks of King CJ are apposite. He observed that what may be in issue is not the accuracy of the instrument but, rather, whether the measurement of speed has been accurately read and reported. Insofar as those matters may be in issue, the prosecution carries the onus of proof. The prosecution carries the onus of proof throughout to establish that the appellant was driving at a speed in excess of the speed limit. In the present case, there is a challenge to both the accuracy of the instrument and the accuracy of the evidence of the police officer who read, recorded and reported the speed.
In Cazzol v Fuss,[3]the appellant was charged with driving a motor vehicle in excess of the speed limit. The appellant maintained that he was not driving at an excessive speed when he had passed the radar unit. He gave evidence that he had installed a radar detection unit in his car, which sounded an alarm when a motorist exceeded the speed. The alarm had not been activated.
[3] (1988) 6 MVR 350.
On appeal, it was argued that the Magistrate erred in concluding that the appellant had the onus of proving, on the balance of probabilities that the unit which had recorded the speed of the appellant’s vehicle was malfunctioning. O’Loughlin J concluded:
Although I believe that the learned special magistrate came to the correct decision, I do not believe that his reasoning as stated in the passage just quoted, is accurate. The defendant was not required to prove, on the balance of probabilities or at all, that the radar unit was malfunctioning; he was required to prove, on the balance of probabilities, that he was not driving at a speed in excess of 60 km/h. There are several ways in which that proof could be forthcoming, as Mr Moss readily agreed. For example a defendant and other witnesses may give evidence on oath that they are able to assert positively that the speed of the vehicle was 60km/h or less. If that evidence is accepted then the defendant would have discharged the onus that has been placed upon him. By inference, such a finding may suggest that the unit was malfunctioning; equally, it may suggest that the witness for the Crown who was monitoring the particular unit had given incorrect evidence; it is not necessary for a defendant to prove that the unit was malfunctioning. [underlining is mine]
I respectfully disagree with the reasons of O’Loughlin J. I agree with the reasons of King CJ in Redman v Klun, that s 175(3)(ba) is merely an evidentiary provision in the aid to proof of the accuracy of the instrument, in this case the laser gun. I respectfully disagree with O’Loughlin J that the section requires a defendant to prove, on the balance of probabilities, that he was not driving at a speed in excess of 60 kilometres per hour. The onus remains upon the prosecution throughout to prove beyond reasonable doubt that the defendant was driving at a speed in excess of the speed limit. The section merely provides an aid to proof as to the accuracy of the instrument which recorded the speed. Insofar as issues such as whether the speed was correctly measured, correctly read, or correctly reported, the onus remains upon the prosecution.
As I have indicated, the statutory presumption does not call for the appellant to prove that he was not driving at a speed in excess of 60 kilometres per hour. The evidence required to rebut the presumption is evidence of the inaccuracy of the laser speed detection equipment. It follows that, in order for the appellant to discharge the statutory presumption contained within s 175(3)(ba) there is required to be credible evidence that the instrument was not recording or could not have recorded speeds accurately.
As I indicated earlier, the only evidence upon which the appellant relied was his own evidence on the subject of the accuracy of the instrument. He relied on his expertise as a shooter and marksman, and his expertise in his chosen trade to give evidence that the laser gun could not have accurately recorded the speed of his vehicle.
The question of whether a witness is an expert in a particular field of knowledge was discussed by King CJ in R v Bonython.[4]The Chief Justice said:[5]
The general rule is that a witness may give evidence only as to matters observed by him. His opinions are not admissible. One of the recognized exceptions to this rule is that which relates to the opinions of an expert. This exception is confined to subjects, which are not, or are not wholly, within the knowledge and experience of ordinary persons. One such subjects a witness may be allowed to express opinions if the witness is shown to possess sufficient knowledge or experience in relation to the subject upon which the opinion is sought to render his opinion of assistance to the court. Before allowing a witness to express such opinions, the judge must be satisfied that the witness possesses the necessary qualifications, whether those qualifications be acquired by study or experience or both. But when it is established that the witness is an expert in the relevant field of knowledge, he will be permitted to express his opinion, however unconvincing it might appear to be, subject always, of course, in a criminal trial to the discretion to exclude evidence whose prejudicial effect is disproportionate to its probative value. The weight to be attached to his opinion is a question for the jury. [Citations omitted]
[4] (1984) 38 SASR 45.
[5] Ibid, 46.

There was no expert evidence adduced on the topic. The appellant is not qualified to express an opinion about the accuracy or operation of a laser speed gun. He has no qualifications, such as scientific or engineering qualifications. He has no experience in the science or engineering relevant to the operation of laser speed guns. He has no qualifications or experience which enables him to express an opinion about the accuracy of a speed gun from a distance of about 550 metres, nor is he qualified to express an opinion about obstacles which may or may not affect the accuracy of the speed reading of a laser speed gun.
The Magistrate correctly rejected the contention of the appellant.
Speed of the Appellant’s Vehicle
A further issue relates to the Magistrate’s acceptance of the evidence of the prosecution witnesses as reliable, particularly relating to the testing of the laser speed gun and the recording of the speed of the vehicle. As previously stated, the appellant gave evidence that he was driving with his cruise control set at 50 kilometres per hour and was therefore not driving in excess of the speed limit.
The Magistrate’s reasons carefully considered the evidence presented by both the prosecution witnesses and the appellant. The Magistrate expressly rejected the appellant’s submission that the prosecution witnesses were lying. Ultimately, he preferred the evidence of the prosecution witnesses to that of the appellant. The Magistrate was in the best position, having seen and heard the witnesses, to assess the evidence. The appellant is unable to demonstrate error in the Magistrate’s reasoning.
Reopening of Prosecution Case
The appellant’s final ground of appeal is that the Magistrate erred in allowing the prosecution to reopen its case to remedy a deficiency caused by the tendering of an incorrectly dated Certificate of Accuracy.
Evidence in the trial was heard by the Magistrate on Tuesday, 23 March 2009. The evidence concluded on that day. During submissions, after the evidence had closed, the Magistrate drew the prosecutor’s attention to the date on the certificate which certified that the laser gun in question had been tested on 19 March 2008 when, in fact, the alleged offence occurred on 4 June 2008. The Magistrate gave leave to the prosecution to provide written submissions as to the operation of s 175(3)(ba) of the Act. On 30 March 2009, in a written submission, the prosecutor submitted:
In short the date shown on the tendered certificate tendered is incorrect, as a result of an administrative error. The correct date on the certificate should be the day that the Ultralyte Laser device was used, and this case the date the alleged speeding offence. [sic] I have attached a replacement certificate that has corrected the administrative error and now displays the correct date. My application to re-tender the PD477 certificate would not alter or affect Mr Elliot’s [sic] case and therefore would not prejudice him in any way.
Therefore I respectfully submit to your Honour for you to consider either accepting the PD477 certificate in replacement of the correct certificate, or hear my application on 22 May 2009 to re-open the prosecution case to enable me to tender the correct PD477 certificate.
The appellant objected to the application.
In his judgment, the Magistrate referred to the date on the original certificate and to the fact that he had questioned the prosecutor as to the date on the certificate which states that the speed analyser was tested on 19 March 2008. The Magistrate indicated that he could not understand how it would be deemed to be accurate if tested on 19 March 2008, when the alleged offence occurred on 4 June 2008. In his judgment, the Magistrate stated:
Prosecution now acknowledge the date on the certificate was wrong. I heard evidence at the trial that the traffic speed analyser was tested on the morning of the offence and the prosecutor seeks leave now to withdraw the certificate originally tendered and substitute a certificate certifying the analyser was tested on 4 June 2008. Mr Elliott, you are opposed to that. You say the new certificate is false and misleading and should be disallowed. You also made unsubstantiated claims concerning the unreliability of the test performed on the morning of the incident, the accuracy of the instrument, the competence of the prosecutor and the physical impossibility of the analyser locking on to your car and maintaining its aim.
…
I consider the prosecution’s actions in tendering a certificate which was wrongly dated as an incidence of inadvertence and I will admit the new certificate.
The appellant submits that the Magistrate was in error in permitting the prosecution to re-open its case by tendering a certificate with the altered, correct date. The respondent submits that re-opening the case was properly permitted by the Magistrate, having regard to the deficiency in proof having arisen from an administrative error. Constable Stevenson gave evidence that he had tested the traffic speed analyser, both before and after his shift on 4 June 2008. The appellant had an opportunity to cross-examine Constable Stevenson on this issue during the trial and before the prosecution closed its case. It follows that there was other evidence as to when the machine had been tested. This supports the contention that there had been an administrative error.
Whether re-opening is permitted will depend upon the circumstances of the case and what the interests of justice require.[6]
[6] Camilleri v Wilkinson (1984) 35 SASR 270, at 276.
In Reid v Kerr,[7] Wells J observed:
The power of the court to allow one side to re-open its case is based upon considerations of natural justice where, owing to inadvertence, misunderstanding or other similar cause, a party who has closed his case without covering a point now seen as unnecessary to be covered, is permitted, in the interests of justice, to make good the deficiency.
[7] (1974) 9 SASR 367, 376.
In Higgins v Parker,[8] similar factual circumstances arose. Upon the hearing in the Magistrates Court of a complaint for an offence against the Road Traffic Act 1961-1981, it was necessary for the police prosecutor to tender a Government Gazette to act as an aid to proof of speed by instrument pursuant to ss 53(a) and 175(3)(ba) of Road Traffic Act. The prosecutor, by error, tendered a Gazette of 26 May 1983, which was late for the purposes of the trial because the offence was alleged to have occurred on 25 September 1982. The error was not discovered until the evidence for both parties had been completed and the prosecutor then applied for leave to re-open his case in order to tender the correct Gazette and for the adjournment of the hearing to enable him to do so. At first instance, the application was refused. The Magistrate held that it was too late in the day for the police prosecutor to be successful in his application.
[8] (1984) 35 SASR 229.
On appeal, the Court held that the Magistrate should have permitted the prosecutor to re-open the case for the complainant to correct the error and should have granted the adjournment to allow the prosecutor to obtain the correct Government Gazette.
Zelling J referred, with approval, to the decision in Royal v Prescott-Clarke[9] where Lord Justice Winn said:[10]
But it does seem to me that in any such case where there is no question of the prosecution being given a further opportunity to go out and scout about for evidence to strengthen their case, but it is merely a matter of their going to look in a newspaper, and if they find there what they need, bring the newspaper to the court in all ordinary circumstances, and in the absence of any conduct on the part of the prosecution, which could properly be described as misconduct or election not to call other evidence, equally in the absence of grave potential prejudice to the accused, there would be only one way in which the discretion could properly be exercised.
[9] [1966] 1 W.L.R. 788, 792.
[10] (1984) 35 SASR 229, 231.
It is clear in this case that the original certificate bore an incorrect date. The date was over two months prior to the date alleged in the complaint. Constable Stevenson gave evidence that he tested the laser gun prior to and after Constable O’Connell had recorded the speed of the appellant’s car on the relevant day.
I am satisfied that the deficiency was technical and that no prejudice to the accused has arisen. The Magistrate was correct in permitting the prosecution to reopen the prosecution case.
I would dismiss the appeal.