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…

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 Elliott v Police

Details

AGLC: Elliott v Police [2009] SASC 292
Case: [2009] SASC 292
Decision Date: 18 September 2009

CaseChat Overview and Summary

In the case of Elliott v Police, the appellant, Mr Elliott, appealed against his conviction for driving a vehicle at a speed in excess of the limit, as recorded by a police laser speed gun. The appeal was heard by the Supreme Court of South Australia, which was reviewing the decision of a Magistrate. The core issue before the court was whether the Magistrate should have been satisfied of the accuracy of the laser speed gun in the absence of any evidence to the contrary and whether the Magistrate erred in preferring the prosecution's evidence over the defence's arguments regarding the speed recorded. Additionally, the court considered whether the Magistrate erred in permitting the prosecution to reopen its case to tender a correctly dated certificate of accuracy.

The court examined the statutory presumption that the laser speed gun recorded the speed accurately, unless proven otherwise. It emphasised the principles guiding judicial discretion in such matters, particularly the reluctance of appellate courts to interfere with a trial judge's decision unless there was a clear error in the exercise of discretion. The court found that the Magistrate did not err in accepting the evidence of the laser speed gun and the prosecution witnesses. It was held that the Magistrate was entitled to prefer the evidence of the prosecution as it was consistent and uncontradicted. The court also found no error in allowing the prosecution to reopen its case to tender a correctly dated certificate of accuracy, as it did not affect the fairness of the trial or prejudice the appellant.

The Supreme Court ultimately dismissed the appeal, affirming the conviction of Mr Elliott. The court's reasoning underscored the importance of judicial discretion and the deference given to the trial judge's assessment of evidence and witness credibility. The decision reaffirms the principle that appellate courts should only intervene in clear cases of error or misdirection by the trial judge.

Orders