Jordan v Police - [2006] SASC 205

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JORDAN v POLICE
[2006] SASC 205
Judgment of The Honourable Justice Layton
11 July 2006
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - OFFENCES RELATING TO INTERSECTIONS AND JUNCTIONS
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DEFENCES
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - GENERAL MATTERS - NATURE AND SCOPE OF COMMONWEALTH POWERS - SEPARATION OF POWERS
Appeal against conviction - appellant convicted by a Magistrate of entering an intersection after the traffic light had turned red, in breach of s 79B of the Road Traffic Act and r 59 of the Australian Road Rules - whether it appeared, from evidence obtained from a photographic detection device, that the offence had been committed - whether the appellant had shown that, in fact, no offence had been committed - whether appellant was required to prove, beyond reasonable doubt that no offence was committed - whether s 79B and r 51.01 of the Magistrates Court (Criminal) Rules offended against Ch III of the Constitution and were invalid - Held: the standard of proof to be applied to the defence under s 79B is on the balance of probabilities - no question of constitutional invalidity arises - no error by the Magistrate in finding the offence proved, and the defence not established - appeal dismissed.
Road Traffic Act 1961 s 79B; Judiciary Act 1903 (Cth) s 78B; The Constitution Ch III; Road Traffic (Miscellaneous) Regulations 1999 r 15; Australian Road Rules r 59; Magistrates Court (Criminal) Rules 1992 r 51.01, referred to.
Silbert v Director of Public Prosecutions (WA) (2004) 78 ALJR 464; HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 547; Nicholas v The Queen (1998) 193 CLR 173, applied.
Police v Cummings (1993) 168 LSJS 418; Johnson v The Queen (1976) 136 CLR 619; Sodeman v The Queen (1936) 55 CLR 192; R v Falconer (1990) 171 CLR 30; Gilbertson v Attorney-General (SA) [1978] AC 772; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; The Commonwealth v Melbourne Harbour Trust Commissioners (1922) 31 CLR 1; Willamson v Ah On (1926) 39 CLR 95, considered.

JORDAN v POLICE
[2006] SASC 205
Magistrate’s Appeal

LAYTON J: The appellant was charged on a complaint and summons with an offence of entering an intersection when the traffic lights were showing red, contrary to r 59(1) of the Australian Road Rules and s 79B of the Road Traffic Act 1961 (“the RTA”). The appellant was the registered owner of a white Mazda sedan photographed by a red light camera on 7 August 2003 going through an intersection of Marion Road and Cross Road at Plympton Park. Mr Jordan was sent an expiation notice for the offence, subsequently choosing to argue before a Magistrate that the alleged offence had not, in fact, been committed. The appellant was found guilty of the offence on 20 December 2005 and a fine of $274 and court costs and fees totalling $393 were imposed.
The appellant now appeals against the conviction, penalty and costs on a number of grounds set out in a Notice of Appeal dated 10 January 2006. The appellant also seeks an extension of time in which to file the Notice of Appeal.
Preliminary Issues
The parties initially came before me on 3 March 2006 in order to clarify a number of appeal grounds raised by the appellant concerning constitutional issues and the need for the appellant to comply with the requirement pursuant to s 78B of the Judiciary Act 1903 (Cth) that, where a proceeding raises a constitutional point, all Attorneys-General be notified. I heard submissions from counsel for the respondent, Mr Jacobi, as to the validity of three grounds raised in the Notice of Appeal, namely, 5.2.12 to 5.2.14, alleging s 79B(2) of the RTA and Magistrates Court Rule 51.01 were unconstitutional. Mr Jacobi drew the Court’s attention to a number of High Court authorities on the need to give notice under s 78B.[1] I made orders requiring the appellant to provide further and better particulars to grounds 5.2.1, 5.2.2, 5.2.12, 5.2.13 and 5.2.14 within 14 days and ordered that the appellant furnish notices to the Attorneys-General pursuant to s 78B of the Judiciary Act with respect to the constitutional issues raised in grounds 5.2.12 and 5.2.13 of the Notice of Appeal.
[1] Glennon v Federal Commissioner of Taxation (2003) 198 ALR 250; RePhillis v Ex Parte Finlaysons (1997) 72 ALR 73.
The matter was called on for hearing before me on 5 April 2006. The appellant indicated he had received replies to his s 78B notices from all Attorneys-General except for the Australian Capital Territory, with all indicating no intention to intervene. Counsel for the respondent had no objection to proceeding without a response from the ACT. A similar response from the ACT was provided after the hearing of the appeal.
In relation to the application for an extension of time, the respondent did not oppose this and I grant the extension of time.
The offence
The appellant was charged pursuant to s 79B of the RTA and r 59 of the Australian Road Rules (“the ARR”). The relevant portions of those provisions are set out below:
79B—Provisions applying where certain offences are detected by photographic detection devices
(1)     In this section—
owner, in relation to a vehicle, has the meaning assigned to the term by section 5, and includes the operator of the vehicle;
prescribed offence means—
(a)     an offence against section 45A; or
(b)     any other offence against a prescribed provision of this Act;
red light offence means a prescribed offence relating to traffic lights or traffic arrows defined by the regulations as a red light offence;
speeding offence means a prescribed offence defined by the regulations as a speeding offence.
(2)Where a vehicle appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of a prescribed offence, the owner of the vehicle is guilty of an offence against this section unless it is proved—
(a)     that although the vehicle appears to have been involved in the commission of a prescribed offence, no such offence was in fact committed; or…
Rule 59 of the ARR relevantly provides that:
59 (1) If traffic lights at an intersection or marked foot crossing are showing a red traffic light, a driver must not enter the intersection or marked foot crossing.
Offence provision.
Counsel for the respondent submitted, and I accept, that the prosecution is required to prove, beyond reasonable doubt, the elements of the offence, which include:
·That a vehicle,
·of which the defendant is the owner,
·from evidence obtained through the operation of a photographic detection device,
·appears to be involved in the commission of an offence (being a breach of ARR 59(1) which is prescribed pursuant to r 15 of the Road Traffic (Miscellaneous) Regulations 1999, in that it appears:
·that traffic lights at an intersection,
·were showing a red traffic light,
·when the vehicle entered the intersection.
If those elements are proved beyond reasonable doubt, the defendant is guilty of an offence pursuant to s 79B, unless the defendant can prove that ‘although the vehicle appears to have been involved in the commission of a prescribed offence, no such offence was in fact committed’, or one of the other exceptions which are not relevant on this appeal.
In argument Mr Jacobi, for the respondent, submitted that the burden of proof in relation to the defence, was on the balance of probabilities. This interpretation is supported by the comments of Perry J in Police v Cummings.[2]
[2] (1993) 168 LSJS 418, 419.
Grounds of Appeal
Turning to the grounds of appeal. A number of grounds can be grouped into three main arguments; first, alleged errors in the Magistrate’s findings; secondly, the alleged withholding of information by the prosecution; and thirdly, the burden of proof imposed on the appellant and the constitutional validity of both s 79B and r 51.01 of the Magistrates Court Rules (Criminal).
Findings of the Magistrate
The Magistrate identified the elements of the offence which the prosecution was required to prove beyond reasonable doubt, and noted that, because of a number of admissions made by the appellant, the only issues that remained to be determined were:
(1)whether the evidence obtained through the operation of the photographic detection device [being the photographs which now comprise Exhibits P5(a) and (b)] made it appear that the Mazda sedan was involved in the commission of the offence of entering the intersection when the traffic lights were showing red;
(2)if so, whether Mr Jordan has proved that no such offence was, in fact, committed.
The prosecution relied on the two photographs taken by a red light camera at the intersection (exhibits P5(a) and P5(b)), and a plan of the intersection (exhibit P7) as well as the evidence of a police officer and operations manager of the Expiation Notice Branch, Mr Robert Paul Syrus. Mr Syrus gave evidence about the programming and operation of the device which produced the photographs P5(a) and P5(b), and about the facts which could be inferred from the information contained in the photographs.
The appellant challenged some of the calculations made by Mr Syrus, and put forward an alternative hypothesis as to what the photographs demonstrated. The Magistrate found that the prosecution had proved, beyond reasonable doubt, that:
the photographic evidence obtained from the photographic detection device makes it appear that the Mazda sedan was involved in the commission of a prescribed offence by crossing the stopping line when the traffic lights were showing red.
The Magistrate also indicated that:
To the extent that Mr Jordan’s evidence was inconsistent with that conclusion, I reject his evidence as unreliable.
The Magistrate then considered whether the appellant had proved that no such offence was, in fact, committed. In relation to Mr Jordan’s evidence, the Magistrate said:
[Mr Jordan] said that he could not specifically recall travelling through that intersection on 7 August, 2003. He said that he could not tell the court precisely about the incident in question because he had no knowledge of the detection. He said that he did recall two instances when he believed the incident in question may have occurred. He said that, each time, he was accelerating as he drove through the intersection. He criticised Mr Syrus’s calculations of where his vehicle would have been when the traffic lights changed to red. He submitted that they were unreliable because they did not take into account the acceleration of his vehicle as it travelled through the intersection.
Mr Jordan’s evidence was based on his reconstruction of an event of which he had no recollection and was founded on a belief that may, or may not, have been correct. Because of the provisions of section 79B(2) of the Road Traffic Act, as the owner of the Mazda sedan, he is guilty of the alleged offence unless it is proved that no such offence was in fact committed. In my assessment, his evidence falls short of establishing that defence.
I note at this point that nowhere in his reasons does the Magistrate indicate what burden of proof is to be applied to the defence put forward by Mr Jordan. It is the lack of clarity on the burden of proof which has in part led to the grounds of appeal in relation to that issue, which is dealt with later in these reasons.
The appellant essentially argues that the Magistrate erred in a number of technical points regarding the calculations of the distance, speed and time the vehicle was photographed by the red light camera, and argues that the proper calculations reveal that his vehicle had already entered the intersection when the light turned red.
At the hearing before me Mr Jacobi submitted that a certain reference made by the Magistrate, as to a time delay in the operation of the two induction loops was not correct. The Magistrate when summarising the evidence of Mr Syrus, said at [9]:
He said that induction loop vehicle detectors were installed under the road surface on the intersection side of the stop line before which northbound vehicles on Marion Road were required to stop if the traffic lights at the intersection were showing red. He said that there were induction loops for traffic in each lane and that there were two parts to each induction loop. He said that when the traffic lights turned to red, the induction loops were activated after a programmed delay of 0.5 of a second. He said that once the induction loops were activated, the camera was programmed to take a photograph of a vehicle as it passed over the leading edge of the second part of the induction loop, so long as the vehicle was travelling at 20 kilometres per hour or more. He said that the camera was programmed to take another photograph of the same vehicle one second later. (Emphasis added)
Mr Jacobi informed this Court that Mr Syrus’ evidence on the matter highlighted above was not correct and this resulted in a technical error in the Magistrate’s summary of the operation of the photographic detection device.
The evidence of Mr Syrus was, relevantly:
Q.    Are you able to explain how the induction loops work once a vehicle has crossed the stop line.
A.    After the light’s gone red?
Q.    Yes.
A.    I can explain it to a certain degree.
Q.    Can you explain it to the court then.
A.    Once a traffic light has changed to red and has been red for .5 of a second or more that’s when the loops become activated. Once the front of the vehicle has crossed over the first induction loop the camera senses that a detection may be taking place. When the vehicle reaches the leading edge of the second part of the induction loop a photograph is then taken so long as that vehicle is travelling at 20 km/h or more…
And further:
Q.    Is there any time considerations applicable to the first loop.
A.    To do what.
Q.    Before it becomes active, before it detects anything.
A.    Half a second after it’s changed to red, that’s when it becomes active.
Q.    So you’re saying the whole thing becomes active.
A.    Correct.
Q.    Half a second after the light turns red.
A.    Correct, because it won’t take a photograph under that time.
HIS HONOUR
Q.    I’ve got to make sure I understand what you’re saying now, that half a second after the light changes to red the induction loops become active.
A.    Correct.
…
Q.    And you’re saying that the first loop is only activated half a second after the light went red.
A.    Yes. The loops become activated half a second after…
Mr Jacobi clarified that the “delay” of 0.5 of a second only applied to the second induction loop, and not both. He indicated that the camera would only photograph a car that passed over the second induction loop at a time greater than 0.5 of a second after the light turned red; the time at which the car passed over the first induction loop was not determinative as to whether a car was photographed, it was relevant to alerting that a detection may take place.
The appellant was given an opportunity to consider his position in relation to this information by Mr Jacobi, and after a short adjournment consented to the correction being admitted as an agreed fact on appeal.
This error in relation to the operation of the photographic detection device affected two aspects of the Magistrate’s findings. First, it affected the Magistrate’s assessment of what the undisputed evidence established. His Honour found that:
(a) the Mazda was travelling at 20 kilometres per hour, or more, when it passed over both parts of the induction loop;
and
(b) 0.5 of a second, or more, after the traffic lights had changed to red, the Mazda sedan passed over each part of the induction loop after each part had become activated.
The concern is in relation paragraph (b). The information provided by Mr Jacobi indicates that (b) is not entirely correct. It is not correct to say that the Mazda sedan had passed over both induction loops 0.5 of a second or more after the traffic lights had turned red. It is certainly correct to say that the Mazda sedan had passed over the leading edge of the second induction loop 0.5 of a second or more after the lights turned red, but it was not necessary for 0.5 of a second to have elapsed when the Mazda sedan passed over the first induction loop.
Secondly, the Magistrate in turn used these figures in testing the hypothesis put by Mr Jordan. His Honour said:
I will assume that, before the traffic lights turned to red, the front of the Mazda, which was 3.8 metres in length, had crossed the stopping line by about half a metre, but had not yet reached the leading edge of the first part of the induction loop, which was 1.14 metres north of the stopping line. In that situation, the rear of the Mazda would have been 3.3 metres south of the stopping line. If the front of the Mazda sedan had been about half a metre north of the stopping line when the traffic lights changed to red and the Mazda was travelling at no less than 6.5 metres per half second, then it follows that every part of the Mazda would have passed beyond the first part of the induction loop, and most of the vehicle would have already passed over the leading edge of the second part of the induction loop before the induction loop became activated. As I understand the evidence, in those circumstances, the photographic detection device would not have detected the presence of the Mazda or photographed it. (Emphasis added)
This conclusion of the Magistrate assumes, in the passage emphasised, that as the car in that hypothetical situation would not have passed over the first induction loop in 0.5 seconds or more, that the photographic detection device would not have operated.
Mr Jacobi also submitted, however, that these errors did not affect the resolution of the appeal.
Section 79B and the burden of proof
The appellant argues that s 79B transfers the burden of proof to an offender to prove a defence beyond reasonable doubt. In my view this is not a proper interpretation of the section, and the burden of proving the exception to the offence is on the balance of probabilities. However, the Magistrate does not indicate in his reasons for decision what standard of proof he applied to the defence raised by Mr Jordan. The transcript of the trial does not include the legal submissions or addresses given, and does not assist in clarifying what standard of proof was applied to the appellant’s defence.
The Magistrate notes a number of times in his reasons that the prosecution bears the onus of proving the elements of the offence beyond reasonable doubt. The references to the obligation on the appellant to prove that the offence was not, in fact, committed, should be seen in contrast to this. In particular, when referring to this obligation, the Magistrate says that Mr Jordan’s “evidence falls short of establishing that defence”. It is a well established principle of criminal law that where an accused bears the burden of proving a defence, the standard of proof required is on the balance of probabilities.[3] The Magistrate is very experienced, and it is implicit in his reasons that he has applied a different standard of proof to the appellant’s defence than that applied to the prosecution.
[3] Johnson v The Queen (1976) 136 CLR 619; Sodeman v The King (1936) 55 CLR 192; R v Falconer (1990) 171 CLR 30 at 42.
In addition, the Magistrate’s comment to the appellant following his finding that there was a case to answer, that “whether you give evidence or not is entirely up to you and you don’t have to prove anything or explain anything” supports the view that the Magistrate clearly understood the limits on the obligations imposed on the appellant in presenting a statutory defence under s 79B(2)(a).

The appellant also argues that s 79B interferes with the presumption of innocence and is therefore unconstitutional. This submission is flawed. I will deal with the argument later in my reasons. In summary at this point, the prosecution must prove beyond reasonable doubt the elements of the offence under s 79B, namely, that it “appears” from the photographic detection device that the vehicle has been involved in an offence of entering the intersection after the traffic light has turned red. The defendant may then seek to establish one of the exceptions, and the standard of proof that applies to the defendant is on the balance of probabilities.
The evidence before the Magistrate
In this case the evidence obtained through the operation of the photographic detection device was as follows:
·Photograph Exhibit P5(a) clearly depicts that the whole of the Mazda vehicle had passed the stop line when the photograph was taken.
·Photograph Exhibit P5(a) was taken 0.65 seconds after the light had changed from yellow to red (see data box in photograph P5(a)).
·Photograph Exhibit P5(b) was taken 1.64 seconds after the light had changed to red (see the data box on photograph P5(b)). Therefore there was a .99 second gap between the taking of photograph P5(a) and the taking of photograph P5(b). Hereafter referred to as a time interval of one second.
·The speed of the Mazda motor vehicle was shown in the data box on photograph P5(b) as being 49 km/h.
·A Certificate of Operation and Testing was provided pursuant to s 79B(10)(b)(c) of the RTA (exhibit P2).
·A Red Light Camera Film Disposition Statement was also tendered (exhibit P4).
In addition Mr Syrus gave evidence as to the operation of the photographic device. Mr Syrus gave evidence using Exhibit P7, a plan of the intersection, as to how the photographic device operated at that intersection. His evidence explained and confirmed the material shown in the data box of the photographs save one aspect, which was the speed shot of 49 km/h. Mr Syrus explained that the device at the time when the incident occurred, had not been calibrated to precisely give the speed and that there was a tolerance of plus or minus 3 km/h in relation to the 49 km/h. However, Mr Syrus calculated the speed himself using the photographs (exhibits P5(a) and P5(b)) and the plan (exhibit P7) together with scale rule and that he concluded that a minimum speed of 46.8 km/h was recorded at the point of one second between the two photographs. He said that this was a precise calculation.
Mr Syrus also gave evidence of the operation of the induction loops. He said:
Q. What to these induction loops do.
A.The induction loops – when a vehicle travels across the induction loop actually acts like a magnet and works on the front of the vehicle.
In addition he said:
Once the front of the vehicle has crossed over the first induction loop the camera senses that a detection may be taking place. When the vehicle reaches the leading edge of the second part of the induction loop a photograph is then taken so long as that vehicle is travelling at 20 km/h or more. When the first photograph is taken, the information relating to that incident is instantaneously transcribed onto the data block, stating which lane the offending was travelling in and all the other details contained in the photographs including yellow light time, red light time and the location and camera number. And if I can get back to the induction loops, obviously where the induction loop picks up the offending vehicle it’s usually on the front axle of the vehicle.
Further to say after that first photograph is taken the camera is programmed to take another photograph at approximately a one second interval and on that occasion it was I think .99 of a second later to show that the vehicle did not stop at that position but actually continued on through the intersection and I could conduct an estimation of speed in relation to this matter by comparing both photographs with the necessary equipment.
On this evidence it would appear that such evidence which was obtained through the operation of a photographic detection device showed that the Mazda sedan had passed the leading edge of the second induction loop more than 0.65 seconds after the light had turned red. Accepting the speed of the Mazda as being 46.8 km/h that meant a travelling speed of 13 metres per second. As 0.65 seconds had passed since the lights changed to red, that means that a distance of 8.65 metres had been covered. Therefore it appears that the vehicle had passed over the stopping line after the lights had turned to red.
The question then arises as to whether s 79B(2)(a) has been made out, namely that although the vehicle appears to have been involved in the commission of an offence, it has been proved on the balance of probabilities that no such offence has been committed. The factors which the appellant puts forward as establishing the defence under s 79B(2)(a) are as follows.
The appellant relies upon the uncertainty of the totality of the events before the Magistrate and also of the information before me and points to alleged mathematical flaws of the Magistrate.
It was submitted by Mr Jordan that on the evidence before the Magistrate he had erred. The appellant submitted that as a consequence of the Magistrate having found that the detection point of the vehicle was 3.64 metres north of the stop sign, he fell into error in the following way:
… as a result of the Magistrate’s arithmetic saying that the vehicle is detected when the front axle passes over the detection point, and the detection point is 3.64 metres north of the stop sign and adding half a metre for the gap between the front axle and the front of the vehicle, taking us to 4.14m, and then taking off the 3.8m length of the vehicle, you would expect that the first point of detection, the first photograph that the Mazda vehicle would be about .34 of a metre passed the stop line.
The appellant further submitted that this mathematical error had to be juxtaposed with what was shown in photograph exhibit P5(a), which in his submission showed that the rear of the vehicle was more than 0.34 metres past the stop line. In the hearing before me the appellant submitted that:
The point the appellant makes is that what the photograph shows, where your Honour said the rear of the vehicle looks to be in about the middle of the first loop, in other words half a metre from the width of the first loop plus 1.14 for that gap on the drawing that is actually 1.17, as I understood it, that’s got us at about 1.6m.
In my view there seems to be a number of problems with the submissions put by the appellant. First, there was no evidence other than the appellant’s assertion of the distance between the front axle of the Mazda and the front of the vehicle itself. There had been cross-examination of Mr Syrus about the distance between the axles but there was no specific evidence adduced by the appellant as to what the actual distance was between the front of the vehicle and the front axle.
Secondly, the evidence of Mr Syrus was that the photograph was taken as the front axle of the vehicle “reaches” the leading edge of the induction line when the maximum metallic surface of the vehicle, being the front axle, is detected by the leading edge of the induction loop. This evidence does not mean that photograph P5(a) was taken exactly at the point when the front axle passes the leading edge and of course a front axle has its own dimension. The evidence does not allow this form of precision of analysis.
Thirdly, in the event it is assumed that there is some distance between the front of the car and the front axle, which is commonsense, it is not inconsistent with the calculations made by the Magistrate or with the photographic evidence. The Magistrate accepted the evidence of Mr Syrus that the speed of the vehicle at the time that the photographs P5(a) and P5(b) were taken, was a speed of 46.8 metres per second. The Magistrate also accepted the evidence of Mr Syrus that the car was likely to have been travelling at the same speed 0.65 seconds prior to the photograph being taken, bearing in mind the very short interval of time involved.
Using these calculations, the vehicle had travelled 8.45 metres during the period of 0.65 seconds between the lights turning red and the photograph P5(a) being taken. At least 3.64 metres had been passed by the front axle of the Mazda sedan (being the distance between the leading edge of the second loop from the stop line), which leaves a balance of 4.86 metres being travelled by the front axle before the stop line.
This is consistent with Mr Syrus’ evidence that the sedan was approximately five metres south of the stop line when the light turned red. Further, Mr Syrus’ evidence was that at the point when the photograph Exhibit P5(a) was taken, the rear axle of the sedan was about 1.5 – 2 metres north of the stop line (for the purposes of testing these calculations I will say 1.7 metres). This position was about half way across the first induction loop.
Mr Syrus also gave evidence that the distance between the front axle and the rear axle was around about two metres. This would place the front axle at or about the leading edge of the second loop (the leading edge is 3.64 metres and the combination of 1.7 metres and two metres is 3.7 metres).
Observing also the photograph in P5(a), in my view there is nothing inconsistent about these calculations at all. The intricate mathematical arguments proffered by the appellant do not persuade me on the balance of probabilities that no offence had in fact taken place. What is clearly shown in the photographs, even without Mr Syrus’ evidence, appears to indicate that an offence has taken place and that the Mazda vehicle had crossed the stop line after the light had turned to red.
I now come to the second argument of Mr Jordan based on mathematical calculations. In essence Mr Jordan contended that the calculations of the Magistrate were incorrect because they relied on there being no acceleration of the vehicle. It was submitted by Mr Jordan that the calculations took no account of the potential for such acceleration. In my view not only is this argument hypothetical, but also bearing in mind the very short interval of time involved, highly unlikely to have made any difference. The vehicle involved here is a Mazda sedan and in my view it is unlikely to have accelerated substantially in the 1.64 seconds that elapsed between the red light turning red and the second photograph, exhibit P5(b), being taken. I therefore reject that as being a reasonable possibility.
The next argument was that the Magistrate had erred in that he should have accepted the defendant’s evidence as to the distance between the stopping line and the leading edge of the induction loop. Mr Jordan had proffered evidence before the Magistrate, which was rejected, that the distance was not 1.14 metres as indicated on the plan or by Mr Syrus but that it was 1.17 metres. In my view even if that was correct, the real gravamen and the importance of the commission of this offence is the point at which the photograph is triggered upon the front axle going over the leading edge of the second induction loop. I therefore reject that as being of any overall significance.
A final aspect that I come to on these factors of time is the effect of the information provided by Mr Jacobi at the hearing of the appeal in respect of the triggering of the photographic detection device and the fact that it was only of the second of the induction loops to which the 0.5 second time period applied. In my view the error of the Magistrate, caused as it was by the incorrect evidence of Mr Syrus, has no real significance to the overall findings. The Magistrate, and indeed Mr Syrus in the final result, applied the correct information which was that the Mazda had crossed the leading edge of the second loop more than 0.5 seconds after the light had turned red; specifically 0.65 seconds, and this was the major factor in determining that the offence had been committed. The role and operation of the first induction loop was as Mr Syrus indicated in his evidence that “the camera senses that a detection may be taking place” and that “once the front of the vehicle crosses the leading edge of the first induction loop the camera becomes aware that an infringement may be about to take place”. That is the way in which the Magistrate approached the ultimate task and that in fact was correct and is also the evidence before me.
In any event, I am satisfied that the evidence, properly understood, established beyond reasonable doubt that the appellant’s vehicle appeared, from evidence obtained through the operation of a photographic detection device, to have been involved in the commission of a prescribed offence. Further, I am not satisfied that the appellant has established, on the balance of probabilities, that no such offence was in fact committed.
The definition of the intersection
At the hearing of the appeal counsel for the respondent raised another issue in relation to the proper interpretation of the evidence before the Magistrate. This case was argued in the Magistrates Court on the basis that the stop line marked the beginning of the intersection. Mr Jacobi submitted, however, that definition of the “intersection” for the purposes of the relevant offence was defined by the dictionary of the ARR as follows:
intersection means the area where 2 or more roads, (except any road related area), meet, and includes:
(a) any area of the road where vehicles travelling on different roads might collide…
On this definition there is a small section of road between the stop line and the commencement of the intersection. This distinction was demonstrated by the contrast between the obligations imposed by r 56 and r 59 of the ARR. Rule 59, as already set out, creates an obligation not to enter an intersection when the traffic lights are red. Rule 56, on the other hand, creates an obligation to stop before a stop line. Further support for this distinction was found by the respondent in r 57 of the ARR, which provides that:
57 (1) A driver approaching or at traffic lights showing a yellow traffic light must stop:
(a) if there is a stop line at or near the traffic lights and the driver can stop safely before reaching the stop line — as near as practicable to, but before reaching, the stop line; or
…
(c) if the traffic lights are at an intersection and the driver cannot stop safely in accordance with paragraph (a) or (b), but can stop safely before entering the intersection — before entering the intersection…
The respondent raised this point for the information of the Court, but submitted that the definition of intersection provided in the dictionary of the ARR offered no assistance to the appellant, and ultimately did not affect the resolution of the appeal. I accept these submissions, and agree that the definition in the ARR does not offer any assistance to the appellant.
Withholding of information and deficiencies in the prosecution case
It was alleged by the appellant in appeal grounds 5.2.1 and 5.2.2 that the police withheld relevant information, specifically information about the subject detection device. Mr Jordan provided further and better particulars on these points on 14 March 2006 which stated that:
5.2.1. a. The respondent withheld;
- any photographs or pictures of the device,
- any specifications or details of the device, and particularly its tolerances.
- any particulars regarding the operation of the device.
b. The respondent withheld;
- details of the road plan, and particularly did not confirm for the Learned Special Magistrate that the road plan depicted cuts in the bitumen and not precisely, the location of the device.
- the inaccuracy [by in the order of 50 mm] of the road plan at the critical points…
5.2.2. a. The appellant repeats the item set out in 5.2.1, a and 5.2.1, b, and contends both the appellant and the Court were prejudiced by the failure to disclose.
b. The respondent, by its counsel, Ms. Griffin told the appellant that information was available from Mr. Syrus, but when the appellant inquired of Mr. Syrus, Mr. Syrus told the appellant not to talk to him and to refer his queries to Ms. Griffin.
c. The respondent persisted in its refusal to disclose in spite of communication and requests from the appellant and in the face of an application to adjourn the trial to allow for a freedom of information application to be made, which adjournment was refused.
These grounds of appeal were not canvassed in oral argument before me, but the alleged deficiencies and omissions in the prosecution case were dealt with in some detail in the appellant’s outline of argument. The appellant lists a number of deficiencies, and in particular argues that:
the prosecution case was flawed by the absence of any reliable evidence as to the detection point on the loops which in the appellant’s submission, on the current state of the evidence can vary by up to one metre from the position taken by the Magistrate…
In response to these grounds the respondent submits that the appellant has not put any evidence before this Court that founds any of these grounds of appeal. If the prosecution did fail to disclose some relevant information to the appellant prior to the trial, a fact which has not been adequately established, I am not satisfied that there would have been any real prejudice to the appellant in any event. I am similarly not satisfied that the alleged deficiencies in the prosecution evidence cast any doubt on the findings of the Magistrate in relation to the offence.
Constitutional Issues
The constitutional points raised by the appellant are set out in paragraphs 5.2.12 – 5.2.14 of the Notice of Appeal. The relevant paragraphs are as follows:
5.2.11The learned magistrate erred in failing to find that the burden of proof upon the appellant to demonstrate the absence of the commission of an offence is, as a result of the presumption of innocence, a persuasive burden.
5.2.12That in the event that the burden of proof of the appellant is beyond reasonable doubt, section 79B [2] is unconstitutional as contrary to the presumption of innocence.
5.2.13Section 79B [2] is unconstitutional as contrary to the principle of separation of powers.
5.2.14Magistrates Court Rule 51.01 is unconstitutional as contrary to the principle of separation of powers.
The appellant also provided further and better particulars filed on 14 March 2006 which expanded the grounds of appeal. The relevant parts in relation to the issue of the presumption of innocence and the burden of proof are as follows:
5.2.12 a The appellant contends section 79B[2] is unconstitutional as it;
—    Deprives an offender of the presumption of innocence.
—    Transfers a burden to an offender to prove a defence beyond reasonable doubt, either in its terms, or so the Magistrate found or both.
—    Transfers the burden of proof to an offender to prove an offence was not committed when the offender does not perform the actus reus of the offence.
—    Transfers the burden to an offender to prove a defence beyond reasonable doubt in circumstances where neither the offender nor the person who performed the actus reus are likely to be aware that an offence was committed…
The relevant portions in relation to the issue of the separation of powers issue are as follows:
5.2.13 aThe principle of separation of powers between the Executive and the Judiciary is clear. Section 79 B. removes the capacity of the Court to perform the ordinary judicial function, including applying the presumption of innocence, assessing a reasonable doubt as to whether the offence was committed or not and addressing the ordinary burden of proof required to be discharged by the prosecution…
5.2.14 aTo the extent that the rule removed the long-established and broad general discretion of the Magistrate as to costs including the capacity to award costs in accordance with the merits, which the Magistrate expressed himself as previously being entitled to apply but not currently due to this rule, the rule is an Executive intrusion into the proper judicial function.
Separation of powers

The appellant argues that s 79B removes the capacity of the court to exercise its judicial function, in that it interferes with the presumption of innocence and the burden of proof. Again, the appellant’s submissions are based on a misapprehension. The doctrine of the separation of powers does not exist in its classic form at the state level.[4] To the extent that there may be a limitation based on Chapter III of the Constitution applicable to state courts, in accordance with the principles in Kable v Director of Public Prosecutions (NSW)[5] authority of the High Court has made it clear that no Kable issue will arise in circumstances that would not offend against Chapter III with respect to a federal court.[6]
[4] Gilbertson v Attorney-General (SA) [1978] AC 772, 783.
[5] (1996) 189 CLR 51.
[6] Silbert v DPP (WA) (2004) 78 ALJR 464, 466 [10]; HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 547, 561-2.
It is well established that Parliament may legislate to prescribe rules of evidence or procedure, and to cast a burden of proof on a defendant in relation to an element of an offence, without in any way infringing upon Chapter III. In Nicholas v The Queen,[7] Brennan CJ said that:
The practice and procedure of a court may be prescribed by the court in exercise of its implied power to do what is necessary for the exercise of its jurisdiction but subject to overriding legislative provision governing that practice or procedure…A law prescribing a rule of evidence does not impair the curial function of finding facts, applying the law or exercising any available discretion in making the judgment or order which is the end and purpose of the exercise of judicial power. (footnotes omitted)[8]
[7] (1998) 193 CLR 173.
[8] (1998) 193 CLR 173, 188-189.
The Chief Justice then quoted from the decision of The Commonwealth v Melbourne Harbour Trust Commissioners,[9] in which Knox CJ, Gavan Duffy and Starke JJ said:
A law does not usurp judicial power because it regulates the method or burden of proving facts.[10]
[9] (1922) 31 CLR 1.
[10] (1922) 31 CLR 1, 12.
Brennan CJ then went on to discuss the decision of Williamson v Ah On,[11] and to note that:
Isaacs J pointed out a difference between a rule of evidence and a provision which, though in the form of a rule of evidence, is in truth an impairment of the curial functioning of finding the facts and hence an usurpation of judicial power. He said [at 108]:
“It is one thing to say, for instance, in an Act of Parliament, that a man found in possession of stolen goods shall be conclusively deemed to have stolen them, and quite another to say that he shall be deemed to have stolen them unless he personally proves that he got them honestly.”
…The reversal of an onus of proof affects the manner in which a court approaches the finding of facts but is not open to constitutional objection provided it prescribes a reasonable approach to the assessment of the kind of evidence to which it relates. (footnotes omitted)[12]
[11] (1926) 39 CLR 95.
[12] (1998) 193 CLR 173, 189-190.
In my view these grounds of appeal must fail.
In addition to these arguments about s 79B, the appellant also submitted that R 51.01 of the Magistrates Court Rules is unconstitutional as contrary to the separation of powers. Rule 51.01 provides as follows:
51.01 Subject to these Rules, the provisions of any Act, or to an order of the Court, a successful party in an action is entitled to costs against an unsuccessful party.
This rule merely restates the usual rule that costs follow the event, and in the light of the authorities discussed above, in my view this ground of appeal must also fail.
Conclusion
For the reasons given, the appeal should be dismissed.