EMMERSON v Police - [2015] SASC 161

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
EMMERSON v POLICE
[2015] SASC 161
Judgment of The Honourable Justice Vanstone
13 October 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - REGISTRATION AND LICENSING OF PRIVATE VEHICLES - UNREGISTERED VEHICLES
INSURANCE - THIRD-PARTY LIABILITY INSURANCE - MOTOR VEHICLES - COMPULSORY INSURANCE LEGISLATION - UNINSURED VEHICLES - SOUTH AUSTRALIA
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - BICYCLE RIDERS
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
Appeal against magistrate’s findings of guilt with respect to offences of driving an unregistered and uninsured motor vehicle – appellant riding a power-assisted pedal cycle which she had assembled and tested herself – whether output of cycle was proved to exceed 200 watts – whether magistrate correct to treat dynamometer as a notorious scientific instrument attracting presumption of accuracy – whether dynamometer proved to be accurate – whether condition of cycle at time of testing the same as at date of alleged offending – whether appellant’s defence supported by her own evidence was afforded adequate analysis.
Held: appeal allowed - findings of guilt set aside and acquittals substituted - magistrate erred in presuming accuracy and in relying on evidence as to suitability and accuracy of dynamometer - cycle in much deteriorated condition at time of return to appellant - appellant’s defence not adequately considered.
Motor Vehicles Act 1959 (SA) s 5, s 9(1), s 102(1); Motor Vehicles Regulations 2010 (SA), referred to.

EMMERSON v POLICE
[2015] SASC 161
Magistrates Appeal:
Criminal

VANSTONE J: On the morning of 3 December 2013 at about half past ten, the appellant was riding her power-assisted pedal cycle bearing the name “Lil Harley” along Mortlock Terrace, Port Lincoln. She was observed by Senior Constable Cusack. He “deemed” the output of the cycle engine to be more than 200 watts and stopped the appellant. After inspecting the cycle and speaking to the appellant, the officer issued an infringement notice for driving an unregistered and uninsured motor vehicle. He also seized the cycle as evidence.
Just short of three months later the cycle was brought by Senior Constable Paterson to Adelaide so that its output could be measured. It was taken to the premises of “Competition Conversions” at Thebarton. The proprietor of that business, Mr McConnell, tested it by placing it on a Dynajet brand 250i dynamometer (the Dynajet). He produced a graph from a computer attached to the Dynajet, which recorded the maximum output as an average of 1.29 horsepower, equating to about 961 watts.
“Motor vehicle” means a vehicle that is built to be propelled by a motor that forms part of the vehicle and includes a motor bike: s 5 Motor Vehicles Act 1959 (SA) (MVA). A person must not drive an unregistered motor vehicle on a road: s 9(1) MVA. A person must not drive an uninsured motor vehicle on a road: s 102(1) MVA. Regulation 3 of the Motor Vehicles Regulations 2010 (SA) provides that a “power-assisted pedal cycle” means a pedal cycle that has one or more auxiliary propulsion motors with a combined output not exceeding 200 watts. Therefore a power-assisted pedal cycle is a motor vehicle. Regulation 10 of those Regulations provides that a power-assisted pedal cycle may be driven on roads without registration or insurance.
The appellant contested the charges. However she was found guilty of both by a magistrate. She now appeals against those findings. Her defence at trial contained the following elements:
1.the Dynajet was designed for testing motor cycles rather than power-assisted pedal cycles and there was no satisfactory proof that it could be applied to cycles;
2.there was no satisfactory proof that the Dynajet was accurate;
3.when tested, the cycle was not in the same condition as when ridden on 3 December 2013. Importantly, a device described by the appellant as a “Venturi corrector” which was incorporated in the motor of the cycle and had been operating on 3 December 2013 was no longer operating;
4.the effect of the Venturi corrector had been to limit the power output of the cycle to not more than 200 watts;
5.the appellant’s own tests, conducted prior to 3 December 2013, confirmed that the output was less than 200 watts.
The Dynajet – suitability and accuracy
Plainly the evidence of Mr McConnell was critical to the prosecution case. He said he was a qualified motor cycle technician of long standing. He is the owner and operator of “Competition Conversions”, a company specialising in tuning and dynamometer testing of motor bikes. He said that in 1995 he acquired the Dynajet and it was installed at his business. He received training from Serco Pty Ltd, the Australian agent for the American Dynajet manufacturer. The Dynajet was mostly used in his business as a tool to assess the tuning of motor bikes being worked on. In addition he had used the Dynajet, on occasions, to test power-assisted pedal cycles on behalf of the police. He said in all, about 25 such cycles would have been tested within his business since 2012, of which 10 or 15 would have been tested by him. He explained in broad terms the way the machine worked. He said that when testing a motor bike or a cycle the rear wheel would sit on the Dynajet’s roller. The operator would sit on the motor bike or cycle. He then said:
We just warm the vehicle up and we have the fan on to keep it cool. Once you turn the throttle on flat out, we take a sample run, press the button and that takes a sample of what we’re doing. It’s just an acceleration thing so as it accelerates right through the red range, you’ll get a peak speed and a peak horsepower output at the end of it. …
He went on:
The roller has got pick-ups on the side of it to get the speed and because of its weight and the speed the roller is turning out and the time it was sampled, that’s how they get the calculation.
Mr McConnell said that the data was corrected to take account of humidity, ambient temperature and the like. Mr McConnell acknowledged that variations in the weight of the person sitting on the motor bike or cycle and the tyre pressure would affect the measured output. The Dynajet was built for testing motor bikes. Mr McConnell did not say that it was suitable for cycles, but that was the clear implication from his evidence. He said that information from the supplier suggested that the Dynajet was accurate to the extent of plus or minus 1 per cent.
Mr McConnell was asked how often the Dynajet was calibrated. He said this:
A.Every twelve months we send a report to Serco, which is the importer of Dynajet and then from that, they give us the calibration spec; if it’s right or if it’s wrong.
Q. Can you just explain a bit further, so how would that process work?
A.Every 12 months around, I can’t remember the date, but we’ll get it, the dyno will turn itself off if we don’t renew it and we won’t be able to get back into the program, so we – two months before we normally set it in motion, send off all our data and then we’ll get back the corresponding pass code to get back into it.
…
Basically just the serial number of the dyno and any additions we’ve added to it and then if there is any weight added to the roller, that changes the way the horsepower can read.
A little later on the same topic Mr McConnell said that having sent information to Serco he would receive back information. He said:
A.What they will do is that then goes to Dynajet in America, in Las Vegas they are and they would send back a code so we can get into our computer again because it locks off every 12 months. So once they’ve checked the roller data and all the weight that’s spinning, then they can give us the right figures so the computer can work out the correct readings.
…
Yes, they check our equipment. It was purely the weight of the equipment, the mass spinning weight. So as long as that all adds up, they send us back our key to get in, which hasn’t changed basically, the same weight, yes.
Mr McConnell noted that about five years earlier he had added an electronic torque converter to the Dynajet and such an addition could affect the results generated by the machine. In explaining how the Dynajet was adjusted to factor in the weight of that new addition, which was about 400 pounds, Mr McConnell said this:
A.I think it was all in American, pounds of weight, so that weight was added to the roller and then the roller and that combined gives you a calculation to go into the computer.
Q.So we’d say computerised result that’s generated through that equipment, is it.
A.Yes, that’s right. The computer – well basically it’s time over distance, so we got a set weight and it takes an “X” amount of horsepower to turn that weight over a certain type.
The phrase “time over distance” featured again in Mr McConnell’s evidence. He was asked about testing this particular cycle:
Q.Despite the fact you haven’t seen or come across one of these bicycles before, were you comfortable with testing it.
A.Yeah it’s just a motorised bike.
Q.So the fact you hadn’t seen one before had no bearing on it.
A.Has no bearing on how we go about our testing. It’s just back wheel on the roller and time over distance.
When pressed later in his evidence as to whether wheel diameter was a variable that might affect the reading obtained he responded:
A.Wheel diameter doesn’t seem to make too much of a difference as far as peak horsepower goes because it’s purely a time-over-distance measurement.
Mr McConnell said it was easy to find out if the machine was giving incorrect readings. He said:
A.You know, if one new bike comes out and it’s supposed to put out a certain amount of horsepower and ours doesn’t, we know it’s either not right or something is wrong with the air conditions or our set-up in the room.
I take it from that answer that Mr McConnell treats a newly manufactured motor bike with a given output as a “control” which works as an informal test of the Dynajet’s accuracy.
In terms of the test on Ms Emmerson’s cycle, Mr McConnell said that he had placed the cycle on the Dynajet’s roller and sat on it himself. The computer attached to the Dynajet had produced a graph. He said the peak power generated was 1.34 horsepower and that it “peaked out at 20 kilometres per hour”. He took the average top output as 1.29 horsepower which converted to about 961 watts.
Mr McConnell commented that Ms Emmerson’s cycle was “probably one of the best manufactured ones I’ve ever seen” and said that it appeared to be a purpose-built auto cycle. He said it was a “nicely set up bike”.
The magistrate accepted Mr McConnell’s evidence “in its entirety”. He accepted that Mr McConnell was a witness of truth and reliability and, he found, a suitably qualified expert. However the magistrate also found that the Dynajet was a “scientific instrument” that attracted the common law presumption in favour of the accuracy of such instruments where they are in common use: Redman v Klun (1979) 20 SASR 343 at 344-345. In the way the magistrate approached the matter, that left the onus on the defence to prove that the machine was inaccurate. Counsel for the respondent, Ms S Halliday, conceded that the evidence did not justify that finding, but she argued that nothing turned on the finding, as the magistrate also found on Mr McConnell’s evidence that the machine was accurate as well as being properly operated. While I recognise the force of that submission, nonetheless, in the approach the magistrate took, he was relieved of critically considering Mr McConnell’s evidence as to the accuracy of the machine, which evidence is, in my view, less than compelling.
I might add that proving that the Dynajet has been used on innumerable occasions over a number of years and that it has been used on 25 or so occasions to measure the output of a cycle, does not prove that any one of those tests yielded an accurate result. The dynamometer is not a well known machine. It was necessary that clear evidence be given of the nature of the machine, the general principles upon which it operated, its purpose and usage and why, explicitly, it could be used for measuring output of a power-assisted pedal cycle, with a relatively small output, as opposed to a motor bike. It is a matter of common knowledge that motor bikes have capacity up to and beyond 1000 cubic centimetres. Such motor bikes would have outputs far beyond 200 watts; perhaps a thousand times greater. It cannot be assumed that a dynamometer designed to accurately measure a band of outputs far in excess of 200 watts will accurately measure relatively tiny outputs.
In addition, if the annual sending of data to Serco for what Mr McConnell described as “calibration” purposes indeed amounted to some sort of remote testing of the accuracy of the machine, then that should have been clearly explained. In fact, a fair reading of the transcript suggests that the process described concerned ongoing certification, rather than calibration.
Finally, the array of factors which could influence the result, many of which were elicited in cross-examination, should have been explained in examination-in-chief.
In my view the evidence presented was not satisfactory. In addition, having regard to the error in applying the presumption, the magistrate’s approach to the question of accuracy was flawed.
Condition of the cycle as at the date of testing and date of return
Ms Emmerson’s evidence was that at the date of the offence, the cycle was in pristine condition. It was a matter of pride to her.
Senior Constable Cusack transported the cycle from the place where he stopped the appellant back to the Port Lincoln Police Station. His memory was that he put it in the back of a caged police vehicle. He could not remember anything about the condition of the cycle. It was lodged as an exhibit and stored at the police station. He last saw it in a rear car park of the station under a shelter. It was not in a locked area and it was left outside.
On 21 February 2014 Senior Constable Patterson collected the cycle from the Port Lincoln Police Station and took it to the Whyalla Police Station. It was there placed into a secure bike storage area. A week later he conveyed the cycle to the premises of Competition Conversions. He remained there while it was tested and then drove back to Whyalla with the cycle in the back of his police utility. It was replaced into the same bike storage area. At a later unspecified date it was conveyed back to Port Lincoln Police Station. In terms of adjusting anything on it, Senior Constable Patterson said that the only thing he might have done was to turn off the petrol supply so that it did not leak.
The appellant gave uncontested evidence that on 1 April 2014 she was contacted by police to say that she could have back the cycle. Two days later she picked it up.
In the course of her evidence, the appellant was shown a booklet of twelve photographs (Exhibit P3) depicting her cycle. She was asked how the appearance of her cycle compared with its appearance on 3 December 2013. She said it was dusty, rusty and had clearly been rained upon. She said this:
It’s rusted, the chrome work is destroyed. It’s been tampered with, in other words, somebody has fiddled with the adjustments and [it has] corroded and broken parts on it.
She said the fuel tank, which had been immaculately polished, was shown in the photographs to be rusted, as was the exhaust pipe. She also noted corrosion on the engine near the certifying plate. She went on to say that the “brass screw atop the manifold”, which served the purpose of securing the Venturi corrector, contained a copper wire with a pressed lead seal with “200 watts” stamped on it. She said that wire had been broken. The appellant explained that the purpose of the seal was to stop anyone tampering with the corrector after it had been set at a 200 watt limit.
The appellant also pointed to a red enamel paint seal at the top of the throttle cable and carburettor, which she said she had placed there once all the components had been correctly set. She indicated that the photograph numbered 9 clearly showed that the paint had been broken away. She said that it demonstrated that someone had turned the adjustment and the lock screw, leaving just a remnant of paint.
The appellant was cross-examined about the condition of the cycle. She said that on the day it was seized the cycle was in perfect running order. She said that was to be contrasted with its condition upon return and that the photographs, Exhibit P3, did not do justice to the extent of damage. Several parts had been broken. The appellant asserted that the photographs were not taken on the day it was seized. The police prosecutor put to her – in my view impermissibly – that the crime scene officer who had taken the photographs had provided an affidavit swearing that he took the photographs on the day of seizure. She was asked to explain that. She said:
A.These are not the photographs taken on that day. There was no rust on the bike at all.
And further:
Q.I put it to you that the … album of photographs that you’d looked at, that depict your bike, those photographs were taken on 3 December 2013.
A.Then how would the rust appear on No 2 where the label is. There was absolutely no rust on the chrome cap … these could not have been taken on the day it was seized. I disagree.
There was still further cross-examination to challenge that position.
After the appellant’s evidence had concluded the magistrate is recorded in the transcript as having queried whether agreement had been reached between defence counsel and prosecutor as to the statement of the crime scene officer in relation to when the photographs were taken. Following an adjournment of some minutes, the prosecutor returned to court to advise that the police officer’s photographs were not taken on the day, but were taken on an unspecified later date.
Plainly, the cycle was in a much deteriorated condition when restored to the appellant. Lil Harley was not able to be started by the appellant upon its return. The magistrate did not make any finding about this matter in his reasons for decision.
The defence evidence about output
I return to say a little more about the appellant’s evidence concerning the Venturi corrector.
The appellant described herself in evidence as a 63 year old licensed motor mechanic of many years standing. She said she had bought the bicycle frame from a shop in Port Lincoln and bought a conversion kit to turn the bicycle frame into a motorised cycle. She said the engine which came with the kit had a capacity of 48 cubic centimetres and would have an output greater than 200 watts unless it was “governed”. The appellant said she assembled the cycle herself. It seems, from her evidence, that the Venturi corrector was part of the kit and was also installed by her. In any event, she described it as a “power inhibitor”, which was visible in photograph numbered 4, being an internal component shown on the inlet manifold, having a brass screw top which “locates and secures the Venturi corrector inside”. She said its purpose was “to restrict the amount of air flow and fuel flow to the cylinder” to reduce its “cyclic operation”. As mentioned earlier, the appellant said that the copper wire leading to the pressed lead seal had been broken after the cycle had been seized.

The appellant further gave evidence that once she had assembled the cycle she tested its power output. She did so by means of a dynamometer which she had designed herself and had constructed by a certified engineer in Port Lincoln. She said that, by contrast with the Dynajet, this dynamometer was purpose-built for testing power-assisted pedal cycles and that, at the time, she had in mind the idea of starting a business of building these cycles and selling them. (She had created 19 such cycles.) The appellant said she used her own dynamometer to test her cycle on at least four occasions, the last of those being within three months of the date of the alleged offences. She said that on that last occasion the output was measured as 198.5 watts, which was slightly more than earlier readings. She said that variation was consistent with the engine having been run in.
The magistrate was unimpressed with this evidence. He referred to the “hypothesis put, that the pedal-powered cycle had ‘an inhibitor’ which could have affected its actual or operative output or wattage to be less than 200 watts, regardless of Mr McConnell’s test results”. The magistrate said:
I note Mr McConnell’s evidence was that he did not think there was a restricting device on the pedal-powered cycle and, if there was, it would have been on the manifold. However, I accept that he was a bit equivocal about this.
The magistrate then went on to refer to the contention that the cycle had been tampered with prior to being tested. He mentioned the argument that the cycle was kept outside and subject to the elements. However, he said that he had “no confidence” in the appellant’s evidence. He went on:
It just seems to me that she is deluded about the whole thing and somehow she thinks that there is possibly some conspiracy at work to tamper with her bicycle and then use a scientific instrument which must be, on her evidence, far inferior to her own. I have no confidence in any of her evidence nor, given her description of the device that she has built, that it could ever, even if I believed her on this point (which I do not), come anywhere near to having the accuracy of the device that Mr McConnell used.
The magistrate later observed that he found “the entire defence case, including the defendant’s own evidence, fanciful …”.
Analysis
Naturally, I have not seen and heard the witnesses give evidence. I have set out a little of the transcript of each of Mr McConnell and the appellant in an effort to exemplify the way in which their respective evidence was given. I am unable to identify in the appellant’s evidence any of the frailties or improbabilities found by the magistrate.
There are several aspects of this case which have caused me a good deal of concern.
First, it cannot now be disputed that the appellant’s pedal-assisted cycle suffered significant damage during the four months that it was in the possession of police. It was clearly not stored so as to preserve its condition. It was not under lock and key. There is no explanation as to why it took police so long to transport the cycle to Adelaide for testing and, if it were not to be retained as an exhibit, to return it to the appellant. Allied to this, the Court below was initially misled – in a way that was most unsatisfactory – as to the date when the photographs of the cycle were taken. The fault there appears to lie, not with the police prosecutor, but with the officer who took the photographs, whose statement implied, but did not state, that the photographs were taken promptly.
Secondly, I consider that the evidence presented by the police to prove the output of the cycle was unsatisfactory. I do not have any doubt that Mr McConnell is an honest witness and gave his evidence to the best of his ability. However, the evidence does not persuade me of the suitability of the Dynajet for this test, or as to its accuracy. While I can appreciate that the difference between a measurement of 961 watts as against the permissible limit of 200 watts is large, and that, in theory, the lack of strict controls, or indeed some minor fault in the Dynajet, would not likely bridge the gap between the result obtained and the appellant’s own measurement, I consider that the evidence simply did not meet the standard which should be required of an expert or ad hoc expert witness.
In particular there was no reliable evidence of the calibration of the Dynajet, or of its suitability to yield accurate results for very low outputs.
Thirdly, and significantly, there was simply insufficient examination of an important part of the defence of the appellant that the Venturi corrector was not operative when the cycle was returned to her and not operating at the time of Mr McConnell’s testing. There was a failure to grasp the thrust of that evidence. Mr McConnell was cross-examined about it, but seemed not to have a familiarity with such devices. Ideally the cycle should have been produced to him in court and an explanation of the device and the way it works could conceivably have been elicited from him. When the appellant was cross-examined by the police prosecutor, this aspect of her evidence was simply not addressed. Another matter not addressed at all was whether, assuming an inhibitor was operating to restrict the output to a selected wattage, the output for the purpose of reg 10 of the Motor Vehicles Regulations would be the optimum, or merely the selected wattage.
Finally, with respect to the magistrate, I do not think it was appropriate to describe the appellant’s evidence as “fanciful”, nor the appellant herself as being “deluded”. Perhaps her position was not made as clear as it might have been by counsel who then appeared for the appellant, and perhaps some aspects of her defence were not sufficiently explored, but I do not consider that it was for the magistrate to so lightly reject her evidence, and in such dismissive terms. My reading of her evidence is that she was a careful and precise witness. She mounted a substantial defence to the charges. More analysis of that defence by the magistrate was required.
Conclusion
In my opinion the convictions should be set aside. In light of the rather long and unfortunate history of the matter I do not think it is appropriate to direct a re-trial. Important evidence has been lost and, on the evidence presented, the appellant should have been acquitted. No doubt there are lessons to be learned on both sides.
The appeal is allowed. The findings of guilt are set aside, as are the monetary orders, and the appellant is acquitted of both charges.