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 137
Magistrates 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] SASC 137
Decision Date

CaseChat Overview and Summary

The defendant, Kuipers-Lloyd, was charged with being the owner of a motor vehicle involved in the commission of a prescribed offence, specifically failing to comply with a red traffic arrow. The conviction arose from an incident on 25 December 2011, where the defendant’s vehicle entered an intersection in Adelaide when a red arrow was showing. The defendant pleaded not guilty and appeared unrepresented both at the trial and on appeal. The prosecution presented evidence including photographs taken by an approved photographic detection device and a certificate certifying that the device was tested and operated in accordance with relevant legislation. The defendant’s appeal raised several issues including whether the proceeding was civil rather than criminal, the fairness of the procedure under section 79B(10) of the Road Traffic Act 1961 (SA), the applicability of Commonwealth law, and whether the evidence provided was sufficient to prove the offence to the contrary.

The court found that the proceeding was indeed a criminal matter, involving a summary offence. The court rejected the argument that the procedure under section 79B(10) was unfair, noting that there are various types of evidence a defendant may use to challenge the presumption created by a certificate. The court also concluded that there was no requirement for the photographic detection device to be certified under the National Measurements Act 1960 (Cth). Finally, the court found that the defendant had not provided any evidence capable of constituting “proof to the contrary” of the facts asserted in the certificate. The appeal was dismissed, affirming the defendant's conviction.

The Supreme Court of South Australia, in dismissing the appeal, upheld the conviction of the defendant, Kuipers-Lloyd, for being the owner of a motor vehicle involved in a prescribed offence. The court's decision emphasised the statutory framework allowing the prosecution to tender evidence under section 79B(10) of the Road Traffic Act 1961 (SA) and the requirement for the defendant to provide proof to the contrary.

Orders