KAFE v Police - [2004] SASC 328

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
KAFE v POLICE
Judgment of The Honourable Justice White (ex tempore)
12 October 2004
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING - FRESH EVIDENCE
Appellant convicted of speeding following a trial at which he was unrepresented - Police officer gave evidence at trial - Appellant relied on his observation of the speedometer in his car to dispute police officer's evidence - Appellant failed to call the passenger as a witness - No evidence that speedometer accurate - Magistrate refused to admit into evidence a letter from the passenger - Appellant sought to lead new evidence on appeal - Leave to adduce new evidence refused as evidence could have been called at trial - Magistrate provided adequate reasons for decision - Appeal dismissed.
Magistrates Court Act 1991, s 42; Road Traffic Act 1961, s 53A, s 175, referred to.
Cooling v Steel (1971) 2 SASR 249, considered.

KAFE v POLICE
[2004] SASC 328
Magistrates Appeal

WHITE J: This is an appeal, pursuant to s 42 of the Magistrates Court Act 1991, against a conviction for speeding entered by a Magistrate in the Magistrates Court at Berri on 15 July 2004.
The prosecution alleged that the appellant had, on 6 November 2003 on the Mallee Highway near Lameroo, exceeded the applicable speed limit of 110 km/h by driving at a speed of 123 km/h. The Magistrate found that charge proved, entered a conviction and fined the appellant $300 together with court costs and a Victims of Crime levy, in addition to prosecution costs of $1,000. The prosecution costs were much higher than usual because the police officer who reported the appellant had to come from Woomera to Berri for the purposes of the trial.
The police officer, Constable Wasley, gave evidence to the effect that whilst performing radar duty approximately eight kilometres east of Lameroo on the Mallee Highway he had observed, using a hand-held radar speed detection device, the appellant driving his vehicle at 123 km/h. He alleged in his evidence that when stopped, the appellant said that he had been speeding because of a need to get to a doctor’s appointment in Adelaide. Constable Wasley also gave evidence that the appellant had viewed the reading on the radar unit (which showed 123 km/h) at about the time he wrote out the traffic infringement notice, a copy of which was handed to the appellant.
In addition to the evidence from Constable Wasley, the prosecution tendered by consent two documents. The first was a Certificate of Accuracy of the traffic speed analyser which certified that a traffic speed analyser known as “Kustom Hand-held Radar Traffic Speed Analyser Serial Number 7458M” had been tested on 6 November 2003 and shown to be accurate. The second document was an extract from the Government Gazette of 4 August 1988 containing the proclamation by which the Governor had approved the “Kustom Hand-held Radar Traffic Speed Analyser” as a traffic speed analyser pursuant to s 53A of the Road Traffic Act 1961.
The appellant was unrepresented at the trial. English is not his first language. He also represented himself on the appeal, but with the assistance of an interpreter.
The appellant gave evidence at trial. It is not clear to me whether his evidence was to the effect that he had been travelling at a speed of 116 km/h or at a speed of 110 km/h but I understand that the appellant asserts now, at least, that his speed was 110 km/h. The appellant told the Magistrates Court that he had not noticed that the traffic infringement notice handed to him by Constable Wasley showed that he was travelling at 123 km/h.
The appellant relied upon the speed indicated by the speedometer on his own vehicle for his assertion as to the speed at which he had been travelling but admitted in his evidence before the Magistrate that he had not had the accuracy of that speedometer verified.
The appellant sought to tender at the trial before the Magistrate a letter written by his wife, who had been present with him on the day of the offence. The court refused to accept that letter stating that if the appellant’s wife was to give evidence, it would be necessary for that to be done in person. It does not seem that there was any application for an adjournment to enable the wife to attend to give evidence but, in any event, there was no adjournment.
The Magistrate gave a decision immediately after the hearing in which he found the appellant guilty.. There is no Court record of what the Magistrate said in that decision by way of reasons.
In an affidavit from the police prosecutor, Mr Schild, which I received on the appeal, it is recounted that the Magistrate said that he accepted the evidence of Constable Wasley as opposed to that of the appellant and further, that because the appellant was unable to confirm the accuracy of his speedometer he was satisfied that the charge had been proved beyond all reasonable doubt.
The notice of appeal contains three grounds.
Before I deal with those grounds, I should mention that on the hearing of the appeal the appellant sought to introduce some fresh evidence. First, he indicated that he wished to call oral evidence from his wife who was present and available to give that evidence. I refused to give the appellant leave to call his wife, pointing out to him that although there is a power on appeal to receive fresh evidence, the court ordinarily does not receive such evidence where that evidence was available to be given at the trial. The appellant has not given a satisfactory explanation for his wife not giving evidence before the Magistrate. For reasons to which I will come, I am satisfied that the appellant was on notice that the trial was to proceed on 15 July 2004 and on notice that he should attend on that day with any witnesses whom he wished to call.
Secondly, the appellant sought leave to adduce on the appeal a certificate prepared by the RAA, obtained in August 2004, certifying as to the accuracy of the speedometer on his vehicle. I refused to receive that certificate on the appeal. Again, I did so because it did not seem to me that the appellant had shown good reason why such a certificate or such evidence had not been tendered before the Magistrate. Again, for reasons to which I will come shortly, it seems to me that the appellant well knew that the issue in the trial before the Magistrate on 15 July was his speed and knew that there was a contest between the estimate of speed of both himself and his wife, based on the speedometer of his vehicle, on the one hand, and the assertion by the police on the other, based on the reading of the radar speed detection device.
I turn now to the grounds of appeal.
First, the appellant submits that the Magistrate was in error in refusing to receive a letter from his wife which, it is said, would have confirmed that he was travelling at only 110 km/h. Further, it is said in the Notice of Appeal that the appellant’s wife would have confirmed that Constable Wasley had said, at the scene, that he (the appellant) was travelling at 116 km/h and not 123 km/h.
The Magistrate was correct, in my opinion, in refusing to accept the letter. If evidence was to be led from the appellant’s wife, she should have been present at the Berri Courthouse in order to give evidence orally. Her evidence would have been given after she had made an oath or taken an affirmation to give true evidence. The prosecutor could have tested that evidence in cross-examination. The Magistrate would have had the advantage of seeing and hearing her evidence. The rules of evidence under which trials of this kind are conducted do not permit evidence to be given by way of a letter, at least without the consent of the prosecution. The prosecution did not give any such consent.
In this case, the appellant well knew that the speed at which he was driving was a critical part of the prosecution case. He must have known of the necessity to attend with all relevant witnesses. I received on the appeal an affidavit from a police prosecutor, Mr Handley, who had appeared on 24 June 2004 before another Magistrate when a pre-trial conference in this matter was held. The appellant appeared at that time, although he was unrepresented. The appellant indicated that he would be defending the matter as he denied that he had been speeding. Mr Handley deposes in his affidavit to the fact that the Magistrate on that occasion told the defendant that he must bring any witnesses on whose evidence he would rely to the trial. Furthermore, Mr Handley told the court at that time that he would be calling Constable Wasley to give evidence.
The appellant has told me today that he was not aware that the trial would take place on 15 July 2004. That was told to me by way of submission.
As I pointed out to the appellant in the course of the submissions, that is inconsistent with what Mr Handley has said in his affidavit. It is also inconsistent with what is noted on the Magistrates Court file as to what the appellant was told on 24 June 2004 at the pre-trial conference. In addition, it is inconsistent with a note on the Magistrates Court file indicating that the appellant was contacted by telephone on 12 July 2004 at approximately 3.30 pm, and told then that the trial would be proceeding on the Thursday of that week. 15 July was a Thursday.
In all those circumstances, I consider that the appellant was put on notice sufficiently that the trial was proceeding on 15 July and of the need for him to have his witnesses present.
The Magistrate accepted the evidence of Constable Wasley.
As I understand the position, the appellant considers that Constable Wasley was ill-disposed towards him at the time of the offence and may, therefore, on that account, have given incorrect evidence. However, the Magistrate accepted the evidence of Constable Wasley. An appeal court does not readily interfere with a conclusion made by a Magistrate which is based on the Magistrate’s assessment of the credibility and reliability of the witnesses who have appeared before that Magistrate. There are a number of cases which establish that an appeal court should interfere in that way only if satisfied that the conclusions based on the assessment of the credibility or reliability of a witness are glaringly improbable or inconsistent with other facts incontrovertibly established by other evidence or so implausible that they should not be allowed to stand or that the Magistrate has, in some way, misused the advantage which he or she has in seeing and hearing the witnesses give evidence..
I do not see any evidence in this case which indicates that the Magistrate’s acceptance of Mr Wasley’s evidence was inappropriate having regard to other facts or other evidence.
Accordingly, this first ground of appeal is not made out.
Next, the appellant’s Notice of Appeal complains that as an unrepresented party, he was not sufficiently informed of procedures or of his rights by the Magistrate. The obligations of a Magistrate who has an unrepresented defendant before him are well known. They were discussed in some detail by Wells J in Cooling v Steel (1971) 2 SASR 249 at 250-251. Wells J summarised those obligations by saying:
“In general, the court should ensure that the defendant is apprised of his rights and duties at all times and be vigilant to keep the proceedings free of error or misunderstanding.”
I do not consider that there is evidence in this case of a failure by the Magistrate to comply with that obligation.
Mr Schild, the prosecutor, who appeared on 15 July 2004, has said in his affidavit that the Magistrate assisted the appellant in his cross-examination of Constable Wasley. No doubt, being unrepresented, the appellant was at some disadvantage. Again, I refer to the fact that the appellant is a person whose first language is not English. However, the Magistrate was not required to adopt the role of the appellant’s advocate. He had to be satisfied that the appellant was aware of the issues, had an opportunity to call relevant witnesses, and I think, to provide some assistance in eliciting evidence and submissions relevant to the determination of the issues in the case before him. But I am not satisfied that the Magistrate failed in his duty in this respect in this case.
Next, the appellant’s notice of appeal alleges that the Magistrate erred by failing to provide adequate reasons for his decision. I have already referred to the brief reasons which the Magistrate did give for finding the appellant guilty. There is no record of the remarks made by the Magistrate because on the day that the appeal hearing took place the Magistrate’s clerk was ill. As the Magistrate was on circuit, he did not have anyone else to record the evidence, his judgment or his sentencing remarks. Nonetheless, I am satisfied on the basis of the affidavit from Mr Schild that the Magistrate did adequately explain his reasons for finding the charge proved. The Magistrate said that he accepted the evidence of Constable Wasley. Mr Jacobi has pointed out that pursuant to s 175(3)(b)(a) of the Road Traffic Act 1961 the certificate verifying the accuracy of the traffic speed analyser was to be taken to be accurate in the absence of proof to the contrary. It appears that the Magistrate relied upon that provision, as the Magistrate pointed to the absence of any evidence showing that the speedometer in the appellant’s vehicle (which was relied upon by the appellant) gave an accurate reading.
In my opinion, these reasons were sufficient to explain to the appellant why he had been found guilty. Accordingly, I am not satisfied that this ground of appeal is made out.
Prior to the hearing of the appeal, I drew to the parties’ attention that Constable Wasley’s evidence had been that on 6 November 2003 he was using a unit described as “Falcon Hand-held Radar Unit Serial Number 7458M”, whereas the two documentary exhibits put before the Magistrate to show the accuracy of the unit used referred to it as a “Kustom Hand-held Radar Speed Traffic Analyser Serial Number 7458M”.
Mr Jacobi has submitted that each is a reference to the same unit and although a different name has been given, that is made plain by the fact that each has the same serial number. I accept that submission.
In my opinion, there was evidence before the Magistrate to show that the prosecution was made good. The only real issue before the Magistrate was whether or not the appellant was driving at a speed in excess of 110 km/h, in particular at 123 km/h. Having accepted Constable Wasley’s evidence the Magistrate was entitled to find the charge proved beyond all reasonable doubt.
Accordingly, in my view, the appeal should be dismissed.
The order of the Court, therefore, is that the appeal is dismissed.