In the matter of the Appeal of Michael Devos

[2006] NSWDC 13

CITATION:	In the matter of the Appeal of Michael Devos [2006] NSWDC 13
HEARING DATE(S):	29/08/06
JUDGMENT DATE:	29 August 2006
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	APPEAL DISMISSED. CONVICTION CONFIRMED; $200 FINE OF LEARNED MAGISTRATE QUASHED.; IN LIEU $77 FINE & 65 COURT COSTS
CATCHWORDS:	speeding - radar device - manufacturer’s guidelines - testing procedures - police instructions - elements of offence
LEGISLATION CITED:	s20 Australian Road Rules; s42 Roads Traffic (Safety and Management ) Act
PARTIES:	Michael Devos (Appellant) RTA (Respondent)
FILE NUMBER(S):	06/22/1119
SOLICITORS:	Mr Borosstt (Appellant) Mr Mazurkiewicz (Respondent)

JUDGMENT

1 HIS HONOUR: Michael Devos has been charged, under the Australian Road Rules, s 20, with driving over the speed limit. The Court Attendance Notice alleges he exceeded the speed limit by more than 15 kilometres per hour on the Great Western Highway on 25 November 2005. The offence is said to have occurred in an area not far from Faulconbridge township.

2 The Prosecution case is that the appellant was captured by a radar device travelling at 98 kilometres per hour. The appellant argues the reading is unreliable because the radar machine was not operated in accordance with guidelines applicable to that machine.

3 The Court’s task is to determine whether, in the circumstances of this case, the Crown has proved beyond a reasonable doubt that the appellant was driving in excess of the speed limit and if so whether that excess was greater than 15 kilometres per hour.

4 The Crown relies upon the evidence of Senior Constable Lackenby. His evidence was that at about one thirty on 25 November, in the afternoon, he set up a radar device known as a Silver Eagle radar, serial number 310 in accordance with the manufacturer’s guidelines, police instructions. He performed the testing procedures and found that the radar was operating correctly. He conducted other checks in respect of the machine and found that it correlated. He then went to a local service station and adjusted his tyres so that they complied with the police instructions.

5 As I have understood the way in which the case has been run, this is not a case in which the accuracy of the equipment, properly operated, is being challenged. That being so, s 42 of the Roads Traffic (Safety and Management) Act would apply. The hub of this case is that the machinery was not operated properly and hence gave a false reading.

6 Senior Constable Lackenby’s evidence continues that at about 8.40pm while patrolling the Great Western Highway, Springwood in a westerly direction he saw an oncoming vehicle, coming out of a 50 kilometre speed area of Faulconbridge township. That vehicle, he said, was travelling in lane 2 of 2. His statement and his evidence was that he estimated the speed to be no less than 80 kilometres per hour and no more than 110 kilometres per hour. The vehicle was rapidly closing on the rear of another vehicle, also travelling east. He later recognised the second vehicle as a taxicab.

7 He elaborated on that portion of his statement at p 9 of his evidence, when he said that his estimation of the speed of the accused’s vehicle (at about - line 10) “is based upon his appearance coming around the bend towards me, the closing rate on the back of the cabdriver.”

8 He gave further evidence that he released the hold button on the vehicle’s radar and observed the taxicab’s speed illuminated on the radar’s target display for a short time and found that it was within the speed limit and then a very short time later the numerals 98 appeared in the target screen which he attributed to the appellant’s vehicle.

9 The tone of the instrument, he said, was broken, but consistent with having two vehicles in the radar’s beam. The number 98 constantly appeared for a time no less than three seconds and after correlating the police vehicle’s speed and the radar’s “patrol” speed as correct he locked the numerals onto the radar display and activated the police emergency lights.

10 The conditions at the time when he conducted the test and made the observation were dry. He said the speed limit for that section of the highway at the completion of the radar’s checking period was 80 kilometres per hour. The initial area where he saw the vehicle was 60 kilometres per hour.

11 He gave as his experience that he had been in the New South Wales Police for seventeen years, eleven of which had been with the Highway Patrol. He had been nine years with the Highway Patrol in the Blue Mountains. He had been observing, in the course of his work, the characteristics of a large variety of vehicles travelling through that section of the roadway. He himself had been licensed for the past 30 years. He had estimated the speed of motor vehicles on a daily basis, felt he was competent to do that, but of course that was an opinion, but nobody appeared to object to him expressing it.

12 A certificate was tendered in respect of his qualifications which show that he had successfully completed a Highway Patrol education programme that appeared to have three components in it, namely a capacity to drive New South Wales Police high speed pursuit vehicles and to check the speed of moving vehicles, to perform duty as a specialist Highway Patrol officer and to operate all New South Wales Police radar protection instruments. What that means in reality, I don’t know, but I am prepared to infer that it means that he was regarded by his employers, that is the New South Wales Police Department, as being a specialist in those three areas. That was a certificate he had gained in 1995.

13 There are four areas in which it is argued the officer failed to use the machine in accordance with proper procedure as established in the guidelines. The guidelines were exhibited both in the Local Court and before me. They are exhibit 4B before me. It is a document of some 84 pages.

14 In the operational guidelines contained in the forward there is a guideline requiring the instruments to be used on relatively straight portions of roadway to ensure a clear audio tone is heard throughout the period of the check; that all instruments must be sent to the engineering - Radar Engineering Unit for periodic calibration testing at intervals not exceeding six months; that the unit should not be used in inclement weather; that the minimum detection time is three seconds for a valid radar speed; that the units are to be used only in rural areas or in areas where traffic is sparse.

15 Elsewhere there is a development of one of the guidelines in these terms: 12.3 on p 72, under the heading “Requirements for a valid speed check. Number 6, minimum of 200 metres between targets of a similar size.”. There is also a section which does not seem to constitute a guideline but which is complained of, of “Stationary radar” - which is not this case – “should not be used on a bend in the road or at the bottom of hills or an unsuitable gradient or hill.”

16 The four matters relied upon, the defence argued, suggested a use of the radar equipment in contravention of the guidelines:- the first being that the traffic was not sparse. Counsel sought to rely upon the video which was tendered. It was exhibit 3 before the Magistrate. Counsel said, within a 25 second period he saw three or four vehicles and the taxicab and the appellant’s vehicle.

17 The evidence of the officer on this topic is to be found at p 19 of the transcript in the course of his cross-examination. Question at line 30, “And it’s the case on this day in question that you were not in a rural area?” “A. No.” which I think is an agreement with the proposition, given the double negatives, that is the way I interpret it. Secondly, “You were in a suburban area, and it is also the case the traffic on the night in question wasn’t sparse was it?” The constable’s answer was, “Yes it was sparse.”

18 In my view the presence of four or five cars in a 25 second period does not constitute a breach of the guidelines. But more importantly it would not impact upon the accuracy of the reading.

19 The second argument was that a vehicle (the taxi) was within 200 metres. There can be no doubt that this was so. Even taking a view most favourable to the prosecution, I would still have a reasonable doubt that that taxicab was within 200 metres, at least in some portion of the test being taken. However, I am satisfied the machine was capable of capturing two vehicles simultaneously and measuring the faster of them accurately.

20 There are two portions of the officer’s evidence that I should take you to. Firstly at p 18, the question was in these terms at line 20:

“I understood you went back to then overtaking vehicles whilst you had my client’s speed locked?” Answer: “The speed was checked. Watching the speed we have, like a fastest vehicle thing on there, and 98 was locked. Yes, but we have - it’s a tracking device that the Silver Eagle has, and we can continue on with that.”

If I have understood that evidence correctly, what the officer is saying is that the machine is capable of coping with two vehicles within the radar’s beam and locking on the faster of them.

21 I am satisfied beyond reasonable doubt the presence of the taxicab did not impact upon the accuracy of the measuring device.

22 There was an ancillary point that was raised by defence counsel in respect of that aspect and it was this, that if the beam was fluctuating between the two vehicles for a period of three seconds or so, then it could not have measured the speed of the appellant’s vehicle for the relevant three seconds.

23 Clearly the video shows that the passage of time during which the exercise was happening was not a long time, whether it was three, five or eight seconds, it certainly was not a long time. But the evidence was that the “98” showed for more than three seconds and I can only infer that if the “98” was showing for that three seconds, the machine must be measuring that “98” I am satisfied beyond a reasonable doubt that the speed was measured for a period of more than three seconds.

24 The next issue was the question of a constant sound. In his statement in paragraph 6 he says:

“The tone of the instrument was broken but consistent with having two vehicles in the radar’s band.”

25 In cross-examination the senior constable gave this evidence. He was asked that he had to ensure that a clear audible tone is heard throughout the period of the check, at p 23 line 35 and he agreed “That’s right.”

“Q. Now constable that’s one of the operational guidelines, is that correct? A. That’s a guideline yes, that’s right. Q. But certainly on this night there was a broken noise emanating? A. That’s right. Q. That’s not clear and audible is it? A. The broken noise is consistent with the other vehicle in the beam.”

26 What needs to be established is that the officer uses the word “broken” to describe the sound he heard. He was not asked whether that meant a fluctuating sound. However, in my view, given the officer’s experience he has satisfactorily explained the “broken” sound, whether it be a broken sound or a fluctuation. I am satisfied beyond reasonable doubt it did not impact upon the accuracy of the device within the parameters recognised.

27 Finally the defence relied upon what it said was inconsistent evidence from the officer as to the speed that he observed.

28 It was explained in this way, that the evidence of the officer’s statement, which was made on 24 January 2006 and the evidence of the statement of facts prepared on 5 December 2005 were at variance. The fact sheet expressed the speed of the appellant’s vehicle in these terms, “In excess of 80 but less than 100 kilometres per hour.” Both in his evidence and in his statement he expresses the speed as being “90 and less than 110”.

29 Whatever he may have meant it has to always be remembered that his oral observations, in whichever section they were to fall, would be in excess of the speed limit and would have been corroborated by his reading of 98 kilometres per hour.

30 While it is argued there is an inconsistency, and accepting for the purposes of argument there was the inconsistency claimed, it is important to note that the evidence is still consistent with an offence under road rule 20, exceeding the speed limit. The inconsistency may well go to the margin by which the speed limit was exceeded.

31 It is to be noted, it was never put to the officer that the speed limit was not exceeded by the appellant. I stand to be corrected on that. But that is my reading of the evidence. That evidence came to light in perhaps equivocal terms in a portion of the appellant's evidence, that is “I believe that my speed was…………….” (my emphasis).

32 In the course of submissions, the question of exactly what the Crown must prove to satisfy the Court beyond reasonable doubt that the offence alleged in the Court Attendance Notice was raised. Did it have to prove no more than the appellant exceeded the speed of 80 kilometres per hour, or did it have to prove that the appellant was travelling at a speed in excess of 95 kilometres per hour, which is the effect of what it alleged in the Court Attendance Notice..

33 My attention has been drawn to the Rule referred to in the Court Attendance Notice, Rule 20, of the Australian Road Rules which is simply in these terms:

“A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving.”

34 The Roads Transport (Safety and Traffic Management)(Road Rules) Regulations 1999, s154 defines the speed limit as the limit contravened and then s154(2) speaks of penalties and disqualifications for speeding offences and observers that a person who commits a speeding offence in any of the circumstances referred to subclause (3) to (5), is liable to the maximum penalty specified in this clause for an offence committed in those circumstances, and (b) is disqualified from holding a driver’s licence. Subclause (3) relates to exceeding the speed limit by more than 45 kilometres. Subclause (3A) is not of relevance. Subclause (4) exceeding the speed limit by more than 30 kilometres per hour and sub clause (5) exceeding speed limit on road by 30 kilometres or less.

35 This was always an offence which would have fallen within subclause (5) on whatever view one took of it. I note that there is a subclause (6) which provides an alternate verdict in prosecutions for speeding more than 45 kilometres an hour and there are alternate verdict provisions for prosecutions of exceeding the speed limit by more than 30 kilometres an hour, but none for exceeding the speed limit by less than 30 kilometres an hour.

36 In the circumstances I am satisfied that all the Crown must prove is that the appellant was travelling in excess of 80 kilometres per hour. In my view the prosecution has proved that. But I hasten to add I am not satisfied beyond a reasonable doubt (for two reasons), that it has proved that the speed limit of 95 kilometres per hour was exceeded.

37 Guideline 11 notes that, “accuracy of the Silver Eagle radar is plus or minus 2 kilometres per hour in the stationary mode” - which doesn’t apply in this case - “and plus 2 kilometres minus 3 kilometres in a moving mode.” Thus the potential accuracy of the captured speed - by “captured speed” I mean the speed displayed on the radar, is on the case most unfavourable to the Crown, 95 kilometres an hour and on a case most unfavourable to the appellant, 100 kilometres per hour.

38 If the speed were 95 kilometres an hour it would not be in excess of 95 kilometres an hour. So the prosecution has not on that basis proved speed in excess of 95 kilometres an hour. Secondly, I come back to the inconsistent evidence, as it was claimed, that was given by the officer. On the fact sheet, which is closest to the event, he put his estimate of the speed at a benchmark starting at “80 kilometres per hour plus”, that is in excess of 80 but less than 100. Well 98 is certainly less than 100 but it is pretty close to it. In the light of that inconsistency I could not be satisfied that the speed was more than 95 kilometres an hour. But I am satisfied the speed travelled by the appellant was in excess of 80 kilometres per hour.

39 My formal finding is that I convict the appellant of the offence of exceeding the speed limit. The order of the learned magistrate for a $200 fine is quashed. In lieu thereof a fine of $77 plus court costs is imposed.

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