Friedrichs v Police - [2007] SASC 6

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FRIEDRICHS v POLICE
[2007] SASC 6
Judgment of The Honourable Justice Gray
19 January 2007
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN BREACH OF SPECIFIC SPEED LIMITS
Appeal against conviction of driving a vehicle at a speed over the speed limit - appellant was unrepresented at trial - consideration of the nature of the appeal process - consideration of the duty of a Magistrate conducting a trial with a self-represented litigant - consideration of procedural fairness issues arising at trial - Held: appeal allowed and the conviction set aside.
Australian Road Rules Rule 20; Supreme Court Rules 1987 (SA) r96C, r3.04(d); Magistrates Court Act 1991 (SA) s 42; Criminal Law Consolidation Act 1935 (SA) s 288A(1), referred to.
Police v Warren [2000] SASC 285; Fox v Percy (2003) 214 CLR 118; James v Williams (2003) 228 LSJS 232; R v White; R v Piggin (2003) 7 VR 442; McPherson v The Queen (1981) 147 CLR 512; R v Gidley [1984] 3 NSWLR 168; Cooling v Steele (1971) 2 SASR 249; Moore-McQuillan v Police (1998) 196 LSJS 488; Hittmann v Police (1999) 202 LSJS 132; Gould v Police [2005] SASC 297; Pezos v Police [2005] SASC 500; Antoun v The Queen (2006) 224 ALR 51; Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Stead v State Government Insurance Commission (1986) 161 CLR 141; Jones v National Coal Board [1957] 2 QB 55; R v Calides (1983) 34 SASR 355, considered.

FRIEDRICHS v POLICE
[2007] SASC 6
Magistrates Appeal
GRAY J:

This appeal raises important issues concerning procedural fairness arising in the trial of an unrepresented defendant. I am satisfied that there is a risk of a miscarriage of justice. I have reached the conclusion that the appeal should be allowed and the conviction set aside.
The defendant and appellant was charged on complaint that, on 13 November 2005, he drove a vehicle at a speed over the speed limit, contrary to rule 20 of the Australian Road Rules. By operation of rule 21(1), the speed limit was 70 kilometres per hour, as indicated by a speed limit sign applying to the stretch of road on which the defendant drove. The alleged speed of the appellant was 90 kilometres per hour. The defendant pleaded not guilty and the matter proceeded to trial on 11 May 2006 in the Magistrates Court sitting at Christies Beach. The defendant was unrepresented.
The Prosecution Case
The prosecution case was that two police officers, Constables Carlier and Ford, were in a stationary police vehicle on Cecilia Road, Christie Downs. An early-model blue Datsun drove past them, travelling east on Flaxmill Road at what they considered to be a high speed. The officers drove on to Flaxmill Road, caught up to the Datsun and conducted a “follow and time” – a process where a police vehicle pursues another vehicle to test its speed. Constable Carlier’s evidence was that he commenced the follow and time on a slight bend on Flaxmill Road at a distance approximately 400m from the point where he had entered Flaxmill Road.
The prosecution case was that the follow and time continued for a considerable distance: the evidence varied between 400 metres and 600 metres at a constant 90 kilometres per hour. Constable Carlier stated that the distance between the vehicles throughout the follow and time was a constant 40 metres. The police then stopped the Datsun, and the driver - the defendant - was subsequently reported. The prosecution called the two police officers travelling in the police vehicle to give evidence.
Both police officers told the Court that at the time the Datsun passed the junction of Flaxmill and Cecelia Roads, the engine of the police vehicle was running and their seat belts were fastened. They were in a position, they said, to begin an immediate pursuit.
Constable Carlier’s initial estimate was that the distance travelled in “catching up” to the defendant’s vehicle was somewhere between 400 metres and 600 metres. He later calculated the distance by reference to a map as approximately 620 metres.
The Defence Case
At the conclusion of the prosecution case, the defendant gave evidence, as did his passenger.
It was the defendant’s evidence that whilst travelling on a straight section of Flaxmill Road, he observed the police vehicle in his rear-vision mirror and noted that it was accelerating. He was travelling within the speed limit of 70 kilometres per hour and, on observing the police vehicle, he reduced his speed and continued at about 60 kilometres per hour. He then noticed the police vehicle travelling close behind. The defendant’s speed remained constant at about 60 kilometres per hour until the lights and siren on the police vehicle were activated. He then stopped. On being questioned, the defendant denied that he had exceeded the speed limit.
The substance of the evidence of the passenger was that he became aware of the police vehicle when the defendant told him that the police were behind them. At that time, he looked in a rear vision mirror and observed the police vehicle two to three car lengths to the rear of the Datsun. He became aware that the lights of the police vehicle had been activated and at that time he looked at the speedometer of the Datsun and noted that the speed was 40 miles per hour – it was an old-model vehicle. The passenger acknowledged that the police may have been following the Datsun for some distance prior to his observing the police vehicle.
The defendant told the court about information that he obtained from the Internet relating to the type of vehicle being driven by the police. The defendant worked as a computer engineer and had prepared a number of calculations. On the assumption that the Datsun was travelling at 90 kilometres per hour constant, he informed the court that it would take 18.5 seconds to travel 462 metres. Having regard to information provided by General Motors Holden and available on the Internet, he informed the Magistrate that the police vehicle would have had to travel at speeds of up to 140 kilometres per hour to catch the Datsun.
It was the defendant’s case that having regard to the performance capabilities of the police vehicle and to its acceleration capacity, it would not have been possible for the police vehicle to catch the Datsun if he had been travelling at 90 kilometres per hour unless the police vehicle had accelerated to a speed of 140 kilometres per hour. This calculation was in marked contrast to the police evidence. At the suggestion of the Magistrate, these calculations were put to Constable Carlier, who gave a qualified assent to the calculations.
The Magistrate discussed the evidence in detail in the course of his ex tempore reasons. He concluded that the police officers were frank and candid in their evidence. He acknowledged that there were differences in their accounts, but he did not view those differences as material. He was prepared to act and rely on their evidence. Later in these reasons, I will discuss the discrepancies between the police officers’ evidence further.
The Magistrate was unimpressed by the defence evidence. He rejected the defendant’s evidence and that of his passenger.
The Magistrate accepted that the speedometer of the police vehicle was accurate and that the officers had made the observations of speed of the defendant’s vehicle as being 90 kilometres per hour. He had no doubt about the accuracy of the police observations of speed. In those circumstances, the Magistrate concluded beyond reasonable doubt that the offence had been established.
The defendant has appealed against his conviction. He challenges the Magistrate’s assessment of the evidence and the finding of guilt. He also raises complaint pertaining to issues of procedural fairness. On the hearing of the appeal, counsel for the defendant contended that the Magistrate should have concluded that there was a reasonable doubt about the defendant’s guilt and that accordingly he should have dismissed the complaint.
The Magistrate gave lengthy ex tempore reasons. However, upon close analysis, his reasoning is limited on critical issues in the case. This is subject to further comment later in these reasons.
Extension of Time
The order of the Magistrate was made on 11 May 2006. The Notice of Appeal was received on 5 June 2006. Rule 96C.02 of the Supreme Court Rules 1987 (SA) provides that an appeal pursuant to section 42 of the Magistrates Court Act 1991 (SA) must be instituted within fourteen days of the judgment appealed against. By virtue of the defendant’s failure to appeal within the time limit prescribed, he lost his right of appeal.
Rule 3.04(d) of the Supreme Court Rules 1987, allows the Court to extend time in which to lodge an appeal. The power to extend time is discretionary. It is for the defendant to justify the Court’s exercising the discretion in their favour. The relevant principles to be applied in considering an application to extend time were summarised in Warren.[1]
[1] Police v Warren [2000] SASC 285.
The defendant referred to the delay in receiving copies of the Magistrate’s reasons and the trial transcript. It should be noted that the transcript was received after the Notice of Appeal was filed. The Crown does not object to an extension of time. In the circumstances, it is appropriate to grant an extension.
The Appeal
The Nature of the Appeal Process
An appeal pursuant to section 42 of the Magistrates Court Act is an appeal by way of rehearing. On a rehearing, the appeal court is to make an independent review of the evidence and to make a critical and thorough scrutiny of the findings. Due regard is to be had to the advantages the Magistrate had in observing witnesses first-hand. The rules governing re-hearings were discussed in Fox v Percy,[2] where Gleeson CJ, Gummow and Kirby JJ observed:[3]
The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits…
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
…
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”.
The foregoing principles have application to this appeal.[4]
[2] Fox v Percy (2003) 214 CLR 118.
[3] Fox v Percy (2003) 214 CLR 118 at [22] – [23], [25] (footnotes omitted).
[4] James v Williams (2003) 228 LSJS 232 at [26]-[27].
Procedural Fairness
Applicable Legal Principles
During the course of the appeal, a number of issues arose with respect to the Magistrate’s conduct of the trial. Counsel for the defendant complained that the Magistrate failed to provide an appropriate degree of guidance and assistance to an unrepresented party.
The duty of a trial judge or a magistrate conducting a trial with a self-represented defendant has been the subject of a number of authoritative discussions. In White,[5] Chernov JA observed:[6]
The courts have recognised…that, where the accused is unrepresented, a trial judge has considerable discretion not to apply strictly the procedural and evidentiary rules that would otherwise operate notwithstanding that strict adherence to such rules may be required of the Crown. The extent to which the trial judge may give the accused such leeway, or the extent to which the trial judge may be required to inform him or her of the legal position as to the substantive and procedural issues in the case and the degree to which the judge may properly intervene in the conduct of the trial in order to achieve its effective conduct while ensuring that it is not unfair to the accused, will obviously depend on the circumstances of the case. But the general position seems to be that there is a trend towards requiring more judicial intervention in the conduct of a criminal trial in order to achieve the twin objectives of efficiency and fairness.
[5] R v White; R v Piggin (2003) 7 VR 442.
[6] R v White; R v Piggin (2003) 7 VR 442 at [38] (footnotes omitted).
The duty of the trial judge is not to advise the unrepresented defendant how to conduct the defence case but to ensure that the defendant is fully aware of the legal position in relation to the procedural and substantive aspects of the case, thereby putting the defendant in a position in which he or she can make effective choices. This necessity arises from the judge’s duty to ensure that the trial is fair.[7] As Hunt J observed in Gidley:[8]
The duty of a trial judge to ensure that every accused has a fair trial thus obliges him to give an accused who is unrepresented such information and advice concerning his rights as is necessary to put him in a position where he can make an effective choice whether he should exercise those rights, but the trial judge must make it clear that he is not advising the accused either that he should exercise those rights or how he should conduct his case. Contrary to the submission of the accused in the present case, it is not part of a trial judge’s duty to advise an unrepresented accused against the tender of prejudicial material. It may be that in a particular case a trial judge will be obliged to advise an unrepresented accused of the likely prejudicial consequences of a course which he is proposing to undertake so as to enable the accused to make an effective choice as to whether or not he should persist in that course, but the choice must remain that of the accused. There is no obligation upon the trial judge to do more. He may express his own opinion as to what would best serve the interests of the unrepresented accused if he feels it is appropriate but he is not under any obligation to do so, and his omission to give such advice does not amount to an error of law.
[7] McPherson v The Queen (1981) 147 CLR 512 at 546-547 (Brennan J); see also at 535 (Mason CJ).
[8] R v Gidley [1984] 3 NSWLR 168 at 181.
These principles have long been applied in this State. In Cooling v Steele,[9] Wells J observed:[10]
In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.
[9] Cooling v Steele (1971) 2 SASR 249.
[10] Cooling v Steele (1971) 2 SASR 249 at 251.
Similarly, in Moore-McQuillan,[11] Bleby J observed:[12]
[A] magistrate, despite busy lists and the need for expedition, must ensure that a self-represented litigant is not denied a fair hearing through ignorance of the basic procedures of the court and of the rules with which he must comply in presenting his case. It is not for a magistrate to advise a litigant on the law or his rights. However, he or she must ensure that a self-represented litigant at least understands that there are rules under which parties must proceed, and ensure that he or she is not deprived of a fair hearing by virtue of a failure to bring to that party’s attention some of the more obvious rules which are second nature to legal practitioners and those who regularly appear in the courts. The court does have an obligation to protect a litigant in person from any apparent procedural disadvantages that such a party may suffer simply through ignorance of particular procedural rules.
In Cooling v Steel, … Wells J had occasion to give a warning about the need for magistrates to be vigilant in ensuring that unrepresented litigants, at the various stages of a hearing on a plea of guilty to an offence, were not ignorant of their rights and duties. I have recently had occasion to refer to and adopt the principles to which His Honour there referred (Taylor v Police, unreported judgment S6540…). The general observation of Wells J which I repeat was (ibid at 251):
“In general, the court should ensure that the defendant is appraised of his rights and duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.”
His Honour was there speaking of an unrepresented defendant on entering a plea of guilty. The remarks apply with equal, if not greater force, to an unrepresented litigant’s understanding of the more complex procedures involved in a contested hearing.
[11] Moore-McQuillan v Police (1998) 196 LSJS 488.
[12] Moore-McQuillan v Police (1998) 196 LSJS 488 at 496-497.
More recently, the foregoing principles have been considered and adopted in Hittmann,[13] Gould[14] and Pezos.[15]
[13] Hittmann v Police (1999) 202 LSJS 132.
[14] Gould v Police [2005] SASC 297.
[15] Pezos v Police [2005] SASC 500.
A close analysis of the Magistrate’s reasons and the transcript of the trial disclose a number of areas that give rise to concern with respect to the way in which the Magistrate dealt with the appellant.
Bias
At trial, immediately prior to Constable Carlier giving evidence, the Magistrate informed the defendant:
I should also add for [the defendant] that this police officer has given evidence before me on at least one occasion that I can think of in the past. I make that known to the defence and prosecution before we start. Thank you.
In his reasons, the Magistrate made a further reference to Constable Carlier having previously appeared as a witness before him:
I examined the officers in the course of them giving their evidence in detail. I was conscious of the fact that this was a pursuit and that in these circumstances where the defendant was disputing the facts I sought from the demeanour of both the police officers some evidence of contrived answers, some evidence of a lack of freshness and I am also conscious of the fact that these are professional witnesses in the sense that, as I disclosed before the trial started, officer Carlier has given evidence before me on at least one previous occasion. My conclusions in relation to that matter had nothing to do with my process of evaluating his evidence today.
In both the course of the trial and in his reasons, the Magistrate twice raised the possibility of, presumably, apprehended bias. A matter of concern is that the statements of the Magistrate do no more than this.
The statements made by the Magistrate do not mention the name of any proceeding; nor do they mention whether the Magistrate made a finding as to Constable Carlier’s credit in any proceeding. If the Magistrate had previously made a finding as to Constable Carlier’s credit, it was probably relevant to disclose the finding, and the circumstances in which it had been made, to the defendant. Presumably, there was a reason for the Magistrate raising the topic at all. The Magistrate made no attempt to explain to the defendant whether anything arose in any earlier proceeding that might possibly have a bearing on the current proceedings or influence him in any way.

The Magistrate did not explain to the defendant the legal significance of actual or apprehended bias, or what rights a defendant may have. At no stage did the Magistrate advise the defendant that he may have had an entitlement to apply for a different Magistrate to hear the trial.
In the absence of appropriate disclosure, explanations and advice, it was not possible for the defendant to make a decision as to whether to request the Magistrate to disqualify himself for bias.
Counsel for the Crown submitted that, in suburban and, in particular, in country Magistrates Courts, it would not be unusual for police witnesses to appear before the same Magistrate on more than one occasion. It was the Crown’s submission that a finding in relation to a particular police witness, whether favourable or unfavourable, cannot of itself lead to a risk of bias or an apprehension of bias. If this were the case, the Crown submitted, many Magistrates Courts could not function.
The relevant principle relating to apprehended bias is well settled. In Antoun v The Queen,[16] Hayne J summarised the principle as follows:[17]
The principle to be applied...is not in doubt. If “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”,[18] the judge is disqualified from trying the case.
[16] Antoun v The Queen (2006) 224 ALR 51.
[17] Antoun v The Queen (2006) 224 ALR 51 at [ 51].
[18] Johnson v Johnson (2000) 201 CLR 488 at [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
The law relating to bias applies equally to all courts, including suburban and country Magistrates Courts. If a situation arises in the course of a trial that gives rise to a question of possible bias, the magistrate should explain to all parties the nature of the potential bias, provide a brief explanation of the relevant legal principles to the unrepresented party and inform the unrepresented party of the right to make an application that the magistrate desist from hearing, or continuing to hear, the trial.
In the present case, the Magistrate, by merely raising inferentially the issue of bias, did not satisfactorily inform the defendant of his rights; nor did the Magistrate put him in a position to make an effective choice about whether to exercise those rights.
Tendering of Evidence
A second issue raised during the course of the appeal with respect to the Magistrate’s conduct of the trial was the Magistrate’s failure to accept the tender of a photograph that had been put to, marked by and made the subject of evidence of one of the police witnesses.
In a sworn affidavit, the appellant gave the following account of the events at the trial that resulted in the photograph not being received into evidence by the Magistrate:
I also had two satellite photos of the area from which I provided a fresh copy to each of the two Police witnesses and asked them to mark where their vehicle was at the beginning. When the first Police witness Carlier had marked it the Police Prosecutor took the photo and it remained on his desk. When the second Police witness had marked the second fresh copy the Police Prosecution again wanted to see it and I showed it to him. The Magistrate called for it and the Police Prosecutor handed only one of the two marked photo’s to the orderly who then handed it to the Magistrate. The Magistrate was never given the second photo which from memory was marked by Officer Ford which the more significant of the two. After Ford had completed his evidence I realised that the prosecutor had only given one of the two photos and I asked to show the Magistrate the second photo. The Magistrate said that it was too late for that. This exchange does not appear in the transcript which I have recently obtained but I distinctly remember it.
On the appeal, counsel for the defendant submitted that the photograph was important, as it demonstrated a material inconsistency between the police officers’ evidence with respect to the location of the police vehicle when they first observed the Datsun. Counsel submitted that the difference was so substantial that it undermined the credibility of the police officers’ evidence. Counsel contended that, as a result of the refusal to admit the second photograph, the Magistrate did not have a full understanding of the facts and did not have before him the available and admissible evidence.
The transcript does not record the defendant’s attempt to tender the photograph. However, counsel for the Crown accepted the defendant’s version of events that he did not realise the second photograph had not been tendered until the conclusion of the evidence. Counsel also accepted that the defendant was then told by the Magistrate that it was too late to be accepted into evidence.
Counsel sought to tender the second photograph as fresh evidence during the course of the appeal. The Crown made no objection. The photograph was received as evidence on the appeal. It does provide evidence to support the defence submission of a material inconsistency between the police witnesses.
There was no adequate reason for the Magistrate to refuse to admit the second photograph at the conclusion of Constable Ford’s evidence. There was no prejudice to the prosecution in accepting the photograph at that stage. Counsel for the Crown accepted on appeal that no prejudice would have been suffered by its admission. Had the defendant been represented, the oversight would have been quickly remedied. To reiterate the observations of Chernov JA in White:[19]
The courts have recognised…that, where the accused in unrepresented, a trial judge has considerable discretion not to apply strictly the procedural and evidentiary rules that would otherwise operate notwithstanding that strict adherence to such rules may be required of the Crown.
[19] R v White; R v Piggin (2003) 7 VR 442 at [38] (footnotes omitted).
The Magistrate did not instruct the defendant on the timing or the process that needed to be followed when tendering documents into evidence. The defendant’s late attempt to tender the second photograph was a result of the defendant being unrepresented and not understanding the procedural requirements. This was an obvious circumstance that called for the exercise of judicial discretion to ensure fairness to the defendant. The absence of the photograph left the Magistrate ill-equipped to understand the evidence and the defence challenge as to the police officers’ credit. This was material that was highly relevant to the defence case.
The Appellant’s Evidence at Trial
A further issue that gives rise to a concern of a lack of procedural fairness was the advice given by the Magistrate to the defendant about the giving of evidence.
At the conclusion of the prosecution case, the Magistrate discussed with the defendant the question of whether there was a case to answer. The Magistrate found a case to answer and then indicated to the defendant that it was his choice whether he would give or call evidence. The defendant then enquired whether he could call witnesses and the Magistrate responded in the following terms:
Well, you can’t call a witness without you first giving evidence. So, if you decide that you don’t want to give evidence and be cross-examined by the prosecutor then you can’t call any evidence and you can’t produce any other documentary material. So the choice is yours. What do you wish to do.
Following this advice, the defendant gave evidence and called his passenger at the time of the alleged offence as a witness.
The advice given by the Magistrate was fundamentally incorrect. Section 288A(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
A person charged with an offence may, at the conclusion of the evidence for the
prosecution, give or call evidence in his or her defence.
[Emphasis added]
The defendant was quite entitled to call any witness who could give relevant and probative evidence, whether he gave evidence or not. To suggest the defendant could only call witnesses if he himself gave evidence was incorrect.
It was not disclosed on appeal whether the defendant intended to give evidence in any event and call supporting evidence. Nonetheless, counsel for the Crown, on analysis of the transcript, accepted that it was reasonably open that the defendant may have only agreed to give evidence because he wanted to call his passenger as a witness. For example, earlier in the trial the appellant informed the court:
I have one witness and I wish to cross-examine the police involved.
Then, shortly after the Magistrate gave the misadvice, the following interchange occurred:
Yes Mr Friedrichs.
Sorry, what – what, you want me to give evidence? Okay.
Well it’s up to you. I said you don’t have to. You don’t have to do anything if you don’t wish to do so. That’s a matter for you.
Whilst this last passage is, of itself, correct, it was made shortly after the advice to the defendant that he could only call witnesses if he first gave evidence. Counsel for the Crown accepted that it could be inferred from these passages that the defendant felt obliged to give evidence or at least to be cross-examined before calling his passenger.
Counsel for the Crown submitted that whilst the advice of the Magistrate was plainly erroneous, it did not impact upon the defendant receiving a fair trial or upon the finding of guilt. Counsel submitted that the principal issue at trial was whether the police vehicle’s speedometer was correctly read and reported. Counsel pointed out that, after hearing all the evidence, the Magistrate was satisfied that the police officers had correctly noted their speed, and that the Magistrate accepted their evidence with respect to the distance between their vehicle and the appellant’s. On the Crown’s case, the findings of the Magistrate would have been no different had the defendant elected not to give evidence.
There is some substance to this submission. However, the erroneous advice is so fundamentally incorrect that one’s confidence in the whole trial process is seriously undermined.
Expert Evidence
It is evident from the transcript that the defendant challenged the police officers’ evidence in a number of respects. As I earlier observed, it was the defence case that if the Datsun was travelling the speed the officers claimed, the police vehicle would have had to travel at speeds of up to 140 kilometres per hour to catch the Datsun to be in a position to “follow and time”. The police evidence was that they did not come close to attaining a speed of 140 kilometres per hour.
It was the defendant’s case that an even greater speed would need to be achieved if the police officers had been further back from Flaxmill Road when they first observed the Datsun. This was the issue to which the second photograph was of direct relevance. According to the second photograph, the police vehicle was much further back than what had been suggested by Constable Carlier. To put it another way, the police vehicle would have had to travel a greater distance, and through two corners, before it took up a position on Flaxmill Road.
For the defendant to make good his contention, he could in part rely on everyday calculations of speed, time and distance. These are calculations that can be readily made by a layperson. However, the defendant also needed information before the Court concerning the acceleration capacity of the police vehicle. He had obtained information from the Internet about the performance capabilities of the type of vehicle being driven by the police. That evidence was in the nature of expert evidence.
It was incumbent on the Magistrate to explain to the defendant that he was entitled to rely on everyday mathematics to demonstrate a point, but that if he wished to lead expert evidence, he would need to do so from a reliable source. That may be through the tender of public documents, or it may require an independent expert. The Magistrate did not clearly explain these matters. However, the Magistrate did point out to the defendant that he could question the police in cross-examination about these matters. If his propositions were accepted, it might overcome the need for other evidence. In the event, the defendant did put relevant calculations to Constable Carlier, and he obtained a qualified assent. It is unclear what status the Magistrate accorded this evidence.
The transcript reveals confusion rather than clarity on the topic. In the ex tempore reasons of the Magistrate, the following appears:
I note that [the defendant] gave evidence to the effect of obtaining information from Holdens and of the performance characteristics of the VY or VZ Holden motor vehicle and what he concluded from that as to the deceleration rate. He used the Driver’s Handbook and concluded in a very general way that having regard to all the evidence, the police officers’ vehicle could not have caught another vehicle travelling at 90 kilometres an hour and indeed could only barely have caught the vehicle ahead in those circumstances, travelling at 70 kilometres per hour, and had his vehicle been travelling at 90 kilometres per hour it would have had difficulty pulling up in the distance if not the impossible task of pulling up in the short distance identified by the police officer Carlier. In addition to that he made reference to the difficulty of pulling up the police vehicle from 140 kilometres per hour, which he assessed as being necessary for the police vehicle to catch his travelling at 90 kilometres per hour on the assumption that it was doing so and of the impossibly short distance for the police vehicle to accelerate then decelerate and then follow and time in the manner outlined by the police officers. I note that the performance figures were only referred to by the defendant in cross-examination (and in his evidence-in-chief, as it happens) but were not produced to the court.
Later in his reasons, the Magistrate then went on to conclude:
The defendant says merely that his calculations (he is an engineer) establish to his satisfaction that the police vehicle could not have achieved the necessary speed over the distance and I am conscious also of the fact that the police officer made reference to 422 metres distance between where the vehicle commenced its pursuit in Cecilia Road and point one. Of course, if I accept the evidence of Constable Ford then as opposed to a ten metres starting grace distance to be covered in Cecila Road we go back an additional 90 metres. This, I suppose, makes the calculation that much more favourable on the assessment of that evidence but to do that requires that the evidence of the police officers be weighed on a knife edge so to speak, and that is not the function of the court. I am not about to undertake an exploration based upon Newton’s laws of motion, or any other physics theory or theory of mathematics, beyond what is so notorious concerning velocity and distance and time that this court can say it is within general knowledge. I am not going to do calculations.
Beyond saying that I have made an equivalence scale of speeds varying between 60 and 150 kilometres per hour, which could be done by anyone, and likewise established that if a vehicle can achieve over 400 metres from a standing start that distance in 16.1 seconds, the average speed of that vehicle must be close to 90 kilometres per hour, what use is that information? It is not to be applied by this court in some special way for the purpose of arriving at a conclusion.
[emphasis added]
These passages demonstrate that the Magistrate failed to understand the defence case properly, failed to understand the significance of the calculations proffered, and failed to understand the relevance of the challenge to the police officers’ credibility. It is unclear whether the Magistrate accepted and acted on the acceleration rates, whether he treated Constable Carlier as having assented to the acceleration rates as being indicative of those of the police vehicle or whether he declined to act on the information. At any event, the Magistrate failed to appreciate the point that the defence calculations were directly relevant to credibility and needed to be properly assessed for there to be a fair trial.
Conclusion on Procedural Fairness
Counsel for the Crown accepted that there were a number of deficiencies in the approach of the Magistrate. Counsel conceded that the Magistrate’s statement on the issue of bias was arguably insufficient, that the Magistrate misdirected the appellant in informing him that he could not call witnesses without first giving evidence himself, and that the second photograph should have been received. However, counsel for the Crown submitted that, despite these deficiencies, the question was whether the appellant has been denied a fair trial and that the appeal should therefore be allowed.
The issue of when an appeal court should set aside a judgment based on a denial of procedural fairness was discussed by the High Court in Stead v State Government Insurance Commission.[20] The Court observed:[21]
The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker L.JJ.) in Jones v National Coal Board,[22] in these terms:
“There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge…No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”
That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference…[W]hen the [appeal court] is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.
[20] Stead v State Government Insurance Commission (1986) 161 CLR 141.
[21] Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146 (Mason, Wilson, Brennan, Deane, Dawson JJ).
[22] Jones v National Coal Board [1957] 2 QB 55 at 67.
Each of the above matters revealed a serious lack of procedural fairness. Their cumulative effect is such that the conviction should be set aside.
Other Issues on Appeal

A further issue raised during the course of the appeal related to a section in the Magistrate’s reasons that appeared to reverse the onus of proof. The Magistrate observed:
In those circumstances, I commence the assessment on the basis that it is for the defendant to provide evidence to the contrary of the assertion of the accuracy of the speedometer and the evidence of the two police officers is of them both observing the figure 90 kilometres per hour on the speedometer. I do not think that the defendant by his theories concerning rate of acceleration, distance travelled and the like has established the necessary affirmative evidence to the contrary.
…
It is not for this court to come to any conclusions whether based upon mathematics, personal experience with vehicles or otherwise, as to whether the speed of the police vehicle could have been accelerated sufficiently rapidly or to a higher level to enable the police vehicle to catch up with that of the defendant allegedly being driven at 90 kilometres per hour. It is for the defendant to demonstrate that the theory he has apparently derived from information he has been [sic] casts doubt in relation to the police force members’ evidence.
[Emphasis added]
It appears from this statement that the Magistrate incorrectly reversed the onus of proof. He may have confused a presumption in favour of the accuracy of a police speedometer with the question of police observations during a “follow and time”. The prosecution bore the onus of proving not only the elements of the offence beyond reasonable doubt but also of excluding any reasonable hypothesis consistent with innocence. The appellant did not bear any burden of proof.
Counsel for the Crown accepted that the above statement appeared on its face to reverse the onus of proof. However, counsel submitted that the statement must be considered in its context. Counsel contended that in the preceding paragraph the Magistrate had given himself a Calides[23] direction where he observed:
I note that the three component test in the well known Queen v Calides authority is of course open to this court and if the court cannot decide where the truth lies the benefit of the doubt must be given to the defendant. In no sense does the defendant have to prove anything. It is a question fundamentally whether this court accepts the evidence of the police officers or entertains doubt concerning the cogency thereof and in particular, as to the speed they say they observed on the police speedometer and of course, as a necessary corollary whether there was in fact a following and timing over the stated distance of 600 metres or thereabouts.
It was the Crown’s contention that this passage demonstrated that the Magistrate correctly directed himself as to the burden of proof and that the impugned passage must therefore be read in the context of the preceding paragraph.
[23] R v Calides (1983) 34 SASR 355.
Counsel for the Crown submitted that in the preceding paragraph the Magistrate correctly identified the issue in the case as being the accuracy of the speedometer and its reporting, as it was those two matters that established the offence. It was counsel’s submission therefore, that the Magistrate was correct that, in order to be satisfied that the offence had been established, it was not incumbent on the Magistrate to make a thorough examination of the events leading up to the follow and time.
These submissions should be rejected. In my view, there was a real risk that the Magistrate reversed the onus of proof.
It was counsel for the Crown’s submission that, whilst it was open for the defendant to show that there was a reasonable doubt as to the accuracy of the police speedometer or the credibility of the police officers’ evidence, it is clear from the Magistrate’s reasons that he was not satisfied that there was reasonable doubt. Or, to put it another way, the Magistrate was not satisfied that there was a reasonable hypothesis consistent with innocence based on acceleration and distance calculations.
At trial, there was no issue taken about the accuracy of the police speedometer. The issue related to the credibility of the police officers and to whether the proven objective circumstances gave rise to a reasonable doubt. The defendant wished to test the police officers’ account by ascertaining the distance travelled by the police officers in taking up a follow and time position. Accordingly, it was first necessary for the court to make an assessment of the position of the police vehicle when the officers first observed the Datsun. On this issue the second photograph was critical: one of the police officers marked the initial position of the police vehicle 100 metres or so further from Flaxmill Road than the other officer. There also had to be an assessment made of the distance travelled on Flaxmill Road. In this respect, the police evidence varies substantially.
Rather than addressing these issues and making appropriate findings, the Magistrate, in the passage earlier referred to, emotively dismissed the defence case as being theoretical, in language that suggested that he placed some onus on the defendant. It is to be emphasised that it was for the Crown to exclude any reasonable hypothesis consistent with innocence.
Conclusion
As earlier observed, I have reached the conclusion that this appeal should be allowed and the conviction set aside.
I will hear the parties as to consequential orders to be made.