KUIPERS-LLOYD v Police
[2013] SASC 137
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KUIPERS-LLOYD v POLICE
[2013] SASC 137
Judgment of The Honourable Justice David
29 August 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS
TRAFFIC LAW - OFFENCES - PROCEDURE - OTHER MATTERS
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - NOT OBEYING TRAFFIC LIGHTS AND TRAFFIC ARROWS - GENERALLY
Appeal against conviction. The defendant was convicted of the offence of being the owner of a motor vehicle that was involved in the commission of a prescribed offence, namely, failing to comply with a red traffic arrow. The prosecution tendered photographs taken by an approved photographic detection device and a certificate pursuant to section 79B(10) of the Road Traffic Act 1961 (SA) certifying that the device was tested and operated in accordance with the relevant legislation.
Whether the Magistrate erred in failing to find that the proceeding was a civil proceeding.
Held: Appeal dismissed. The matter was a criminal proceeding involving a summary offence.
Whether the procedure prescribed by section 79B(10) amounted to a denial of procedural fairness by denying the defendant the possibility of providing any defence.
Held: There are a variety of types of evidence that may be tendered to rebut the presumption created by a certificate tendered pursuant to section 79B(10).
Whether the Magistrate erred in denying the prevalence of Commonwealth law, namely, the National Measurements Act 1960 (Cth).
Held: There is no indication that a photographic detection device approved for the purposes of section 79B(10) requires certification under the National Measurements Act.
Whether the Magistrate erred in failing to find that there was evidence to the contrary of the facts asserted in the certificate tendered pursuant to section 79B(10).
Held: There was no evidence before the Magistrate capable of amounting to proof to the contrary of the facts asserted in the certificate tendered pursuant to section 79B(10).
Road Traffic Act 1961 (SA) s 79B; Australian Road Rules (SA) r 60; Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 14; National Measurements Act 1960 (Cth), referred to.
Police v Young (2012) 114 SASR 567; Anastasiou v Police [2013] SASC 112; Moran v Police (2010) 56 MVR 232, considered.
KUIPERS-LLOYD v POLICE
[2013] SASC 137Magistrates Appeal: Criminal
DAVID J: The defendant was charged under section 79B of the Road Traffic Act 1961 (SA) (the “RTA”) with being the owner of a motor vehicle that was involved in the commission of a prescribed offence. In particular, it was alleged that on 25 December 2011, the defendant’s vehicle entered the intersection of West Terrace and Anzac Highway, Adelaide when a red arrow traffic light was showing contrary to Rule 60 of the Australian Road Rules (SA).
The defendant pleaded not guilty in the Magistrate’s Court and appeared unrepresented, both at trial and on the appeal.
Evidence was given by Sergeant Delany, an experienced police officer, that the relevant intersection was fitted with a photographic detection device activated by the passage of a vehicle over induction loops. The prosecution tendered photographs taken by the detection device showing the defendant’s vehicle entering the intersection and activating the device. Sergeant Delany gave evidence that the detection device will not photograph any vehicle crossing the induction loops less than half a second after the red traffic light has been activated, and that the first induction loop is located at a distance of about 30 centimetres from the stop line. Sergeant Delany gave further evidence that the position of the vehicle in the photographs relative to the intersection, together with the speed at which the vehicle was travelling, indicated that the vehicle had entered the intersection after the red arrow had activated. Sergeant Delany also gave evidence that the photographs indicated that the amber coloured traffic light was on for a period of 4.01 seconds prior to the red light being activated.
A Certificate of Operation and Testing of Approved Photographic Detection Device signed by Chief Inspector Burgess was also tendered, certifying that the detection device used was an approved device under Regulation 14 of the Road Traffic (Miscellaneous) Regulations 1999 (SA) (“the Road Traffic Regulations”) and that the device was operated and tested in compliance with both those regulations and the RTA.
The photographs and the certificate were tendered pursuant to section 79B(10) of the RTA. Section 79B relevantly provides:
(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) an offence against a prescribed provision of this Act; or
(d)an offence against a prescribed provision of the Motor Vehicles Act 1959;
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
(b) that the owner, or, if the owner is a body corporate, an officer of the body corporate acting with the authority of the body corporate, has furnished to the Commissioner of Police a statutory declaration stating the name and address of some person other than the owner who was driving the vehicle at the time; or
(c) that—
(i)if the owner is a body corporate—the vehicle was not being driven at the time by any officer or employee of the body corporate acting in the ordinary course of his or her duties as such; and
(ii)the owner does not know and could not by the exercise of reasonable diligence have ascertained the identity of the person who was driving the vehicle at the time; and
(iii)the owner, or, if the owner is a body corporate, an officer of the body corporate acting with the authority of the body corporate, has furnished to the Commissioner of Police a statutory declaration stating the reasons why the identity of the driver is not known to the owner and the inquiries (if any) made by the owner to identify the driver.
…
(10)In proceedings for an offence against this section or proceedings for a prescribed offence—
(a) a photograph or series of photographs produced by the prosecution will be admitted in evidence if—
(i) the photograph or each of the photographs was produced from an exposure taken, or electronic record made, by a photographic detection device; and
(ii) the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with that use of the device, and a denotation as to date, time and location that appears as part of such a photograph will be accepted as proof, in the absence of proof to the contrary, of the date, time and location at which the exposure was taken or the electronic record made by the photographic detection device; and
(b) a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or any other police officer of or above the rank of inspector, and purporting to certify—
(i) that a specified device used at a specified location during a specified period was a photographic detection device; and
(ii) that the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of that device during that period,
will be accepted as proof, in the absence of proof to the contrary, of the facts so certified; and
(c) where it is also certified in a document of a kind referred to in paragraph (b) that the device was designed and set to operate according to a specified system during that period, it will be presumed, in the absence of proof to the contrary, that the device was designed and set to operate according to that system during that period and did, in fact, so operate.
Regulation 14(1)(a)(i) of the Road Traffic Regulations provides that the particular model of photographic detection device used is an approved detection device for the purposes of a red light offence.
The defendant gave evidence of the circumstances surrounding the offence. He said that he was travelling towards Adelaide from Glenelg and that, as he turned right onto South Terrace, the traffic lights changed quickly from green to red, giving him no time to bring his vehicle to a stop. In cross-examination, the defendant conceded that the photographs indicated that the alleged offence had actually occurred whilst he was travelling away from the city and turning right onto Anzac Highway. The defendant, however, maintained his assertion that the traffic lights had changed quickly from green to red.
The Magistrate found the defendant guilty of the offence charged. In his ex tempore reasons for judgment, the Magistrate observed that the prosecution was entitled to rely upon the certificates tendered pursuant to section 79B of the RTA as prima facie proof of the material contained therein, and that the defendant had failed to produce evidence capable of constituting “proof to the contrary”.
The defendant has appealed against conviction. The defendant’s notice of appeal advanced several contentions.
The defendant first contended that the Magistrate erred in failing to recognise the proceeding as a civil proceeding. It was submitted that the elements said to be necessary to constitute a criminal proceeding, including the identification of a relevant mens rea and corpus delicti, were absent.
This submission is wholly without merit. The proceeding was a criminal proceeding and involved the hearing of a charge that the defendant had committed a summary offence against section 79B of the RTA.
The defendant next contended that the procedure prescribed by section 79B(10) of the RTA amounted to a denial of due process and relevant procedural standards. The defendant complained that he was deprived of the opportunity of challenging the accuracy of the evidence obtained by the operation of the detection device. He submitted that Parliament had effectively rendered it impossible for defendants to provide a defence to offences to which section 79B applies.
I reject this submission. By section 79B of the RTA, Parliament has provided a procedure by which the prosecution may tender evidence capable of making out certain traffic offences. Where evidence is tendered in accordance with section 79B, the burden of proof is reversed, requiring a defendant to tender evidence to the contrary. As Peek J noted in Police v Young,[1] there are a number of types of evidence that a defendant may seek to rely upon as proof to the contrary of the facts specified in a certificate tendered pursuant to section 79B.
[1] (2012) 114 SASR 567, 581-582.
Finally, it was said that the Magistrate had erred in denying the prevalence of Commonwealth law over state law. In particular, the defendant submitted that the certificate tendered by the prosecution pursuant to section 79B of the RTA failed to meet the requirements of the National Measurements Act 1960 (Cth) (“the National Measurements Act”).
In Anastasiou v Police,[2] Vanstone J considered the application of section 10 of the National Measurements Act to the testing of speed detection devices. Her Honour observed:[3]
Dealing with the appellant’s argument that there was no proof of compliance with Commonwealth legislation, it seems to me that there is no basis upon which to infer that the Commonwealth legislation purports to cover the field. In other words, I can find no indication that traffic speed analysers used by South Australian police on South Australian roads required certification under the National Measurements Act.
[2] [2013] SASC 112.
[3] [2013] SASC 112, [22].
The above extract is supported by other decisions of this Court.[4] I consider that the observations of Vanstone J are equally applicable to photographic detection devices approved for the purposes of detecting a traffic light offence. Accordingly, there is no merit in the defendant’s contention that the Magistrate erred in denying the prevalence of Commonwealth law over state law.
[4] See Moran v Police (2010) 56 MVR 232, [15]; Police v Young (2012) 114 SASR 567, 593.
On the hearing of the appeal, the defendant advanced the further contention that the photographic detection device had in fact malfunctioned at the relevant time. The defendant asserted that the relevant model of detection device was unsuitable for use at the particular intersection. The defendant further asserted that the distance travelled by the vehicle between the two photographs indicated that, contrary to the prosecution evidence, more than one second had elapsed between photographs. He suggested that this alone was sufficient to indicate that the instrument was not functioning correctly. The defendant conceded that he had not given evidence at trial regarding these further contentions as to the functioning of the detection device. He asserted that he had been prevented from making such submissions as a result of being confused upon being given the certificate under section 79B(10) of the RTA.
The defendant has failed to establish any error on behalf of the Magistrate. There was no evidence before the Magistrate capable of amounting to “proof to the contrary” within the meaning of section 79B(10) of the RTA. A review of the transcript of the trial reveals that there is no merit in the defendant’s suggestion that he was somehow prevented from making submissions as to the functioning of the detection device.
The appeal is dismissed.
4
3
0