KUIPERS-LLOYD v Police

[2014] SASC 73

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

KUIPERS-LLOYD v POLICE

[2014] SASC 73

Judgment of The Honourable Justice Kelly

17 June 2014

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS - GENERALLY

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - OTHER MATTERS

PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - MAGISTRATES COURT

Appeal against conviction. The appellant was convicted by a Magistrate of speeding contrary to Rule 20 of the Australian Road Rules. The allegation was that the appellant drove at 98 kilometres per hour in an 80 kilometres per hour zone.

Whether the Magistrate erred in not allowing proper disclosure.

Held: Allowing the appeal.  There being doubt as to whether proper disclosure was made and whether that non-disclosure resulted in any miscarriage of justice, the conviction of the appellant is quashed and the matter remitted to the Magistrates Court for retrial.

Road Traffic Act 1961 (SA) s 175(3), referred to.
Police v Bulgin [2010] SASC 143, discussed.

KUIPERS-LLOYD v POLICE
[2014] SASC 73

Magistrates Appeal:   Criminal

KELLY J.

1. The appellant appeals a conviction and penalty recorded in the Mount Barker Magistrates Court on 22 November 2013. The appellant was charged under Rule 20 of the Australian Road Rules with an offence of speeding, the particulars being that on 29 September 2012 at Woodchester he drove a vehicle on Strathalbyn Road at a speed of 98 kilometres per hour, in a zone to which the speed limit of 80 kilometres per hour applied.

2. The appellant pleaded not guilty. A trial took place at the Mount Barker Magistrates Court on 19 September 2013 and in due course the appellant was convicted.  The appellant appeared unrepresented both at the trial and again on appeal.

3. The notice of appeal was filed out of time on 18 December 2013 thus the appellant seeks an extension of time within which to appeal. 

4. The appellant conceded at trial that he was the driver of the relevant motor vehicle on 29 September 2012 and that he was driving on Woodchester Road at the relevant time.  His defence was first that his speed at the time was 98 kilometres per hour but that he was travelling in a 100 kilometres per hour speed zone at the time when his car was detected.  Second, he questioned the accuracy and reliability of the radar device.  The appellant contested that his vehicle was not travelling at 98 kilometres per hour on the particular section of road alleged by the prosecution. 

5. The prosecution case was that the appellant was detected travelling at the speed of 98 kilometres per hour in an 80 kilometre per hour zone, however by the time the vehicle was stopped by the police officer the vehicle had travelled to a speed zone which was 100 kilometres per hour.

6. The prosecution tendered certificates and documents and relied upon evidentiary aides and statutory presumptions in s 175(3) of the Road Traffic Act 1961 (SA).

7. In rejecting the appellant’s contention that the radar device was unreliable, the Magistrate said that the appellant’s submissions were completely unsupported by evidence and therefore the Magistrate decided not to address the appellant’s contentions.  His Honour found that the appellant’s submissions in relation to the speed analyser did not amount to proof of the inaccuracy or unreliability of the speed analyser.  In the end the Magistrate rejected the defence case that detection of the vehicle occurred in a 100 kilometres per hour zone.  The Magistrate found beyond reasonable doubt that the appellant was travelling at 98 kilometres per hour in an 80 kilometres per hour speed zone. 

8. On appeal the appellant advanced three grounds, the first being that his Honour did not consider the relevant facts, second that his Honour did not allow proper disclosure and third that the Magistrate erred in the considerations and assumptions he made. 

9. I shall turn immediately to the second ground of appeal that proper disclosure was denied, as it became apparent during the hearing of the appeal that this is the only ground of appeal which has any substance.

10. The appellant claims to have requested disclosure of three documents as early as the pre-trial conference.  Those three documents were the manufacturer’s manual, a police operations manual and a copy of the relevant Australian Standard.  The appellant claims that when he raised the issue at the pre-trial conference the Magistrate flatly refused the application saying “that’s not going to happen at pre-trial”.

11. As there is no record on the court file as to what transpired at the pre-trial conference there is no way of determining what happened at that conference other than by reference to the appellant’s assertions.  Nevertheless it is clear that the appellant raised the matter again at the commencement of the trial on 19 September 2013 as he repeatedly referred to his request for disclosure of those documents during the trial. 

12. It is axiomatic that the prosecution is obliged to make proper disclosure of material in its possession which might be relevant to establishing the guilt or innocence of the appellant.  The difficulty which has arisen on appeal in the light of the lack of any transcript recording what occurred, is to know first whether the documents sought were in the possession of the police and secondly what the police response to that application was.[1] 

    [1]    I note that in R v Bulgin [2010] SASC 143 White J determined issues arising on the basis of material including operating procedures issued by the South Australian Police, the manufacturer’s instructions relating to the use of the speed camera and to an Australian standard, which was properly tendered at the trial. Although the outcome of that appeal is not relevant to the disposition of this point, it is of note that these documents were used by and were available to the parties.

13. It seems to me reasonable to assume that at least the police operations manual and the manufacturer’s manual of the speed analyser used by the police were in the possession of the police. 

14. Nevertheless, I have reached the conclusion that the proper course at this stage is to give the appellant the benefit of any doubt and accept his assertion that he asked for and was denied access to the documents requested.  Moreover, particularly in light of what happened in Police v Bulgin,[2] I am not prepared to conclude, at least so far as the police operations manual and the manufacturer’s manual are concerned, that those documents were not at the very least easily obtainable by or already in the possession of the police at the time of the pre-trial conference. 

    [2] [2010] SASC 143.

15. Counsel who appeared for the respondent on the hearing of the appeal quite properly conceded that in the circumstances there is at least an argument to be made that the appellant was insufficiently equipped as he claimed to be, to adequately cross-examine the police officer or to adduce any independent evidence of his own in order to rebut the presumption of accuracy which arises under s 175(3) of the Road Traffic Act 1961 (SA).

16. In these circumstances, although it is not possible on the basis of the court record to determine whether any miscarriage of justice has resulted, in all of the circumstances I consider that the appellant must be given the benefit of the doubt.  There being doubt as to whether proper disclosure was made and whether that non-disclosure has resulted in any miscarriage of justice, I consider the only proper order to be made is to quash the conviction and remit the matter before another Magistrate for retrial.