ELLIOTT v Police

[2006] SASC 385

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

ELLIOTT v POLICE

[2006] SASC 385

Judgment of The Honourable Justice Anderson

21 December 2006

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - GENERALLY

Appellant convicted for exceeding the speed limit - appeal against conviction and sentence - whether the appellant rebutted the statutory presumption that the laser gun was accurate - whether the case was proven beyond reasonable doubt - whether the Magistrate was biased - Held: case proven beyond reasonable doubt - appellant failed to rebut the statutory presumption - Magistrate not biased - appeal dismissed.

Road Traffic Act 1961 (SA) s175(3)(ba), referred to.

ELLIOTT v POLICE
[2006] SASC 385

Magistrates Appeal

ANDERSON J 

Background

1. In this matter the appellant is appealing against both the conviction and sentence imposed upon him resulting from him being charged with and convicted for exceeding the speed limit on 2 August 2005.

2. The vehicle the appellant was driving was timed by a police officer using a laser gun in the ordinary course of his duties. At the hearing before the Magistrate the prosecution tendered a certificate pursuant to s 175(3)(ba) of the Road Traffic Act 1961 SA (“the Act”).  This certified that the particular laser gun which had been used was tested and was accurate.  By virtue of the section the certificate amounted to proof of accuracy in the absence of any evidence to the contrary.

3. At the hearing, evidence regarding the speed recorded on the gun was given by the Constable who operated the device.  His evidence was that the reading recorded on the gun was 93 kilometres per hour.  The speed limit for the section of road in question was 80 kilometres per hour.

4. The appellant, who represented himself, gave evidence at the trial and also cross-examined the police officer as to his version of events.  It seems that the appellant believed there was some form of conspiracy against him by members of the police force, and that the evidence of the police officer was fabricated.

5. The learned Magistrate had to resolve differences between what the police officer said and what the appellant said in their respective evidence.  The evidence from the police officer was that there was no other vehicle on the road at the time.  After he apprehended the appellant, he invited the appellant to view the laser gun display, but the appellant declined. 

   The appellant’s case

6. The evidence given by the appellant was that he had looked at his speedometer at the time, and that it indicated he was travelling at 79 kilometres per hour.  The appellant also argued the impossibility of obtaining an accurate speed because of certain topographical features of the locality and of his car.

7. The appellant said he made notes of the discussion between himself and the police officer.  The Magistrate allowed him to use his notes to refresh his memory in recounting the events in question.  He disputes that he was invited to view the laser gun display.  He says he was not invited to view it.

8. He also disputed the accuracy of the gun in his submissions to the Magistrate but called no evidence to rebut the presumption that the gun was accurate.  He likewise challenged the estimates of distance between various landmarks in the area given by the police officer.  In effect, the appellant took issue with the truthfulness of the evidence by the police officer.

9. The appellant, in his argument to me, put the same matters he had put to the Magistrate at the earlier hearing.

   The Magistrate’s findings

10. The Magistrate correctly held that the onus was on the appellant to rebut the reading shown on the speed detection equipment.  There was no evidence led to discharge that onus.  The Magistrate was faced with a conflict between the evidence of the police officer relating to the reading on the gun, and the evidence of the appellant.  The Magistrate found the charge proved beyond reasonable doubt.  He convicted the appellant and fined him the amount of the expiation fee which was $173. 

    Alleged bias of the Magistrate

11. The appellant also pursued a ground of appeal that the Magistrate was biased.   I have read the transcript of the hearing before the Magistrate, and in my view there is nothing to substantiate the appellant’s complaints regarding any alleged bias by the Magistrate.  The appellant had suggested that the Magistrate put words in the witness’ mouth.  He also gave an instance of an exchange which occurred between him and the Magistrate when the appellant called the Constable a liar.  As I have indicated, there is nothing to suggest any bias by the Magistrate.  On the contrary, the transcript shows that the Magistrate assisted the appellant throughout the hearing by explaining procedure and the importance of putting his case to the prosecution witnesses and then presenting his own evidence.

    Conclusion

12. The Magistrate’s reasons show that he has correctly assessed the evidence and made his findings on the basis of a preference for the evidence given by the police officer and on the certificate of accuracy produced pursuant  to the Act  The certificate which was tendered indicated that the laser gun used was accurate.  The speed as indicated by the laser gun was therefore deemed to be accurate in the absence of any proof to the contrary.  No such evidence was produced other than the appellant’s oral testimony.  That was rejected by the Magistrate.  No expert evidence was led by the appellant.

13. The Magistrate found the case proved beyond reasonable doubt.  I do not believe that the appellant has demonstrated any error of law made by the learned Magistrate.  I do not believe that the appellant has shown the Magistrate to be biased. 

14. In all the circumstances I would dismiss the appeal.