Kulikovsky v Police - [2010] SASC 58

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
KULIKOVSKY v POLICE
[2010] SASC 58
Judgment of The Honourable Justice Gray
18 March 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - OTHER CASES
Appeal from decision of Magistrate - defendant charged with speeding - defendant found guilty following trial by Magistrate - defendant gave expert evidence regarding laser - prosecution re-opened case to call expert evidence - whether Magistrate in error in accepting certificate of accuracy - whether Magistrate erred in allowing the prosecution to re-open case - whether prosecution expert gave hearsay evidence or evidence outside of field of expertise.
Held: appeal dismissed - open to the Magistrate to accept the certificate of accuracy - Magistrate correct in allowing prosecution to re-open case - prosecution expert did not give hearsay evidence or evidence outside field of expertise - fact that defendant was not an independent witness a relevant matter.
Road Traffic Act 1961 (SA) s 175(3)(ba); Australian Road Rules r 20 and r 21(1), referred to.
Pinkerton v Police [2006] SASR 341; Elliott v Police (2009) 54 MVR 23; Redman v Klun (1979) 20 SASR 343; Shaw v The Queen (1952) 85 CLR 365; R v Bonython (1984) 38 SASR 45; Casley-Smith v FS Evans & Sons Pty Ltd (No 1) (1988) 49 SASR 314; R v Harris [2006] 1 Cr App R 5, 55; R v Gokal (Unreported, March 11 1999, Court of Appeal, England); Whitehouse v Jordan [1981] 1 WLR 246; National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd’s Rep 68; Polivitte Ltd v Commercial Union Assurance Co Plc [1987] 1 Lloyd’s Rep 379; Fox v Percy (2003) 214 CLR 118; R v Harris [2006] 1 Cr App R 5, 55; FGT Custodians v Fagenblat [2003] VSCA 33; SmithKline Beecham (Australia) Pty Ltd v Chipman (2003) 131 FCR 500; Flavel v South Australia (2007) 96 SASR 505; Fortson Pty Ltd v Commonwealth Bank of Australia (2008) 100 SASR 162, considered.

KULIKOVSKY v POLICE
[2010] SASC 58
Magistrates Appeal
GRAY J.
Introduction

This is an appeal against conviction.
Background
The defendant and appellant, Andrew Simeon Kulikovsky, was charged on complaint that on 26 March 2008 at Pooraka he drove a motor vehicle on Montague Road to which a speed limit of 70 kilometres per hour applied,[1] that he drove over that speed limit, and that he was driving at a speed of about 89 kilometres per hour, contrary to rule 20 of the Australian Road Rules.[2] The defendant was convicted following a trial before a Magistrate. He was self-represented at trial and on appeal.
[1] Australian Road Rules, rule 21(1): The speed-limit applying to a driver for a length of road to which a speed-limit sign applies is the number of kilometres per hour indicated by the number on the sign.
[2] Australian Road Rules, rule 20: A driver must not drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving.
Both at trial and on appeal the defendant challenged the accuracy of the laser speed device said to have recorded his speed of 89 kilometres per hour on the day in question.
Section 175(3)(ba) of the Road Traffic Act 1961 (SA) addresses the testing and accuracy of traffic speed analysers, and relevantly provides:
a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or by any other police officer of or above the rank of inspector, and purporting to certify that a specified traffic speed analyser had been tested on a specified day and was shown by the test to be accurate to the extent indicated in the document constitutes, in the absence of proof to the contrary, proof of the facts certified and that the traffic speed analyser was accurate to that extent on the day on which it was so tested and, for the purpose of measuring the speed of any motor vehicle—
(i) in the case of a traffic speed analyser that was, at the time of measurement, mounted in a fixed housing—during the period of 27 days immediately following that day; or
(ii) in any other case—on the day following that day, whether or not the speed measured differed from the speed in relation to which the analyser was tested or the circumstances of the measurement differed in any other respect from the circumstances of the test;
Prosecution Case
Constable Langes described how he detected a vehicle driven by the defendant at about 5.15 pm on 26 March 2008 travelling in an easterly direction on Montague Road, Pooraka, in the right-hand lane at a speed of about 89 kilometres per hour. The constable gave evidence that he was positioned in a patrol car at the corner of Cowan and Montague Roads when he detected the defendant’s vehicle at a distance of about 175 metres from his position with an Ultralyte 100 laser speed detector. He had tested the device both at the commencement and conclusion of his shift that day. He tested for optical alignment, and had checked the calibration at distances of both 25 and 50 metres. It was the prosecution case that the reading was accurate, and that the operation and checking of the device had complied with statutory requirements.
Section 175(3)(ba) of the Road Traffic Act as excerpted above creates a rebuttable presumption as to the accuracy of an approved traffic speed analyser, of which the Ultralyte device is one.[3] When a certificate of accuracy is tendered pursuant to section 175(3)(ba) of the Act, the facts stated in the certificate are deemed to have been proved unless there is proof to the contrary.[4] The relevant standard of proof is on the balance of probabilities. It was said by the prosecution in this case that the presumption as to accuracy had not been rebutted by the defendant at trial.
[3] At trial the prosecution tendered a copy of the Government Gazette dated 13 December 2001 page 5354 authorising the use of the Ultralyte 100LR laser speed gun as a traffic speed analyser pursuant to the Road Traffic Act 1961 (SA), section 5.
[4] Pinkerton v Police [2006] SASR 341 at [12] (Gray J); Elliott v Police (2009) 54 MVR 23 at [19] (Sulan J).
Defence Case
The defendant claimed that he had moved from the right-hand lane and into the left-hand lane some distance before Cowan Road. He gave evidence that he had first noticed a police vehicle shortly after he changed lanes. He said that at that point he looked at his speedometer which indicated that he was travelling at a speed of 68 to 70 kilometres per hour.
Evidence was given by the defendant for the purpose of discharging the onus to prove inaccuracy of the Ultralyte device, cast by the operation of section 175(3)(ba) of the Road Traffic Act.[5]The defendant is a Defence scientist. He sought to give expert evidence with respect to the design and practical limitations of laser speed detection equipment. The Magistrate accepted the defendant as an expert, based on his qualifications and experience, accepting him as an expert with respect to the design and operation of lasers generally.
[5] See Redman v Klun (1979) 20 SASR 343 at 345.
Re-opening of the Prosecution’s Case
In response to the evidence led by the defendant, the prosecution applied to re-open its case to call expert evidence in rebuttal. This was opposed by the defendant. The application was allowed by the Magistrate. In ruling, the Magistrate noted that when the defendant was first stopped after being detected by the laser, he made known to the officer that he was an engineer who knew about the operation of lasers, and that he would be challenging the reading. The Magistrate noted that the defendant had sent a copy of his business card to the expiation branch. It was also observed that at a status conference there was some discussion pertaining to the production of documents of a technical nature relating to the operation of laser equipment.
It was in these circumstances that the Magistrate rejected the prosecution argument that they could not reasonably have foreseen that the defendant would lead expert evidence. Having regard to the onus to be discharged by the defendant, the perceived need by the prosecution to adduce evidence in answer to that topic and the wide ranging effects that a determination that the equipment was inaccurate would have upon the enforcement of laws regulating the speeds at which traffic may travel on the roads in the State of South Australia, the Magistrate concluded that the case was “exceptional”. This was a conclusion made notwithstanding the rejection of the prosecution’s claim that they could not reasonably have foreseen the course that the trial would take.
Magistrate’s Findings
The Magistrate summarised the evidence given by the defendant as an expert, and discussed the scope of the defendant’s expertise in his reasons for judgment:
The defendant demonstrated a clear understanding of the principles of laser technology which underpins the design and operation of the Ultra-lyte 100 speed detector. He described risks of inaccurate data being recorded by the device resulting in an inaccurate computation of the speed of a given vehicle. He described the slip or sweep error and the peripheral target area [sic] or multi-path error. He explained how each error could lead to a distorted speed computation. He admitted not having had practical experience of operating a laser speed detection device such as the Ultra-lyte 100 model. His experience in the use of laser equipment has been with respect to the design and testing of Defence equipment, in particular, in range-finding applications.
The Magistrate made the following observations with respect to the rebuttal evidence called by the prosecution:
The prosecution called rebuttal evidence from Mr Johanus Van der Zalm, the manager of the calibration and technical laboratory of SAPOL. Mr Van der Zalm holds a Diploma in Electronics and has lengthy experience in working with sophisticated electronic equipment including laser equipment with the Department of Civil Aviation and SAPOL. He has been involved in the testing of laser equipment and in the training of officers in its use, the calibration, repairs and technical operation of laser equipment and its application to the process of speed detection. His field of expertise is clearly relevant to the issues raised by the defendant. His expertise overlaps the defendant’s expertise but the expertise of the two men is not co-extensive. He has been closely involved with the calibration, repair and operation of the Ultra-lyte 100 speed detector device since its introduction at SAPOL in 2003. He showed a very thorough knowledge of the features and operation of the device. He showed an understanding of the reasons for the methods by which inaccuracies and obstructions are detected by the device. He was able to explain the process by which the device responds to variations in pulse readings arising from the slip or sweep error. He explained that the device displays an error outcome on the small screen and aborts the particular attempt at speed detection. He was able to explain the process by which the device responds to variations in pulse readings arising from the peripheral target or multi-path error.
The Magistrate considered that the defendant was unable to contradict Mr Van der Zalm’s explanations of the ways in which the Ultralyte device operated so as to combat the slip or sweep error and the peripheral target or multi-path error. Based on the evidence of Mr Van der Zalm, the Magistrate was satisfied that the device was built with safeguards such that possible errors were identified and displayed as errors by the device. In these circumstances, the Magistrate found that the statutory presumption had not been rebutted. The Magistrate then concluded that the alleged offence had been proved beyond reasonable doubt.
The Appeal
The defendant’s notice of appeal advanced four grounds: that the Magistrate was in error in accepting the certificate of accuracy as evidence of the accuracy of the Ultralyte device; that the Magistrate was in error in exercising his discretion to allow the prosecution to introduce a new expert witness; that the prosecution expert was allowed to give evidence outside his field expertise; and that the prosecution expert was permitted to give impermissible hearsay evidence. The defendant also alleged bias on the part of the Magistrate; however this complaint was withdrawn at the hearing of the appeal.
As the defendant was unrepresented, I gave him an opportunity to consider further evidence he may wish to lead on the making of an application to lead such further evidence, and specifically raised with him that possibility during the hearing of the appeal. The defendant took this matter no further.
Admission of the certificate of accuracy
The first certificate of accuracy, provided to the defendant prior to trial, related to the testing of the Ultralyte device as accurate on 11 January 2008, some 74 days prior to the offence. For this reason, and also due to the absence of an appropriate signature, this certificate was not a complying certificate for the purpose of section 175(3)(ba) of the Road Traffic Act. A second certificate, relating to the testing of the device as accurate on the day of the offence, was produced at the trial, and was admitted at the close of the prosecution case.
On appeal the defendant submitted that the second certificate of accuracy should not have been admitted on the ground that the prosecution had failed to provide a valid certificate earlier. It was said that the defendant had prepared submissions before trial which were rendered useless by the production of the second, compliant, certificate. Beyond this submission, however, the defendant was unable to demonstrate or suggest any prejudice suffered as a result of the delay in the production of the compliant certificate.
The prosecution submitted that this complaint raised no more than a bare technicality. Reliance was placed on a decision of this Court in Elliott,[6] where it was held that the Magistrate was correct in allowing the prosecution to re-open its case in order to produce a new certificate of accuracy as the one previously produced had shown an incorrect date.
[6] Elliott v Police (2009) 54 MVR 23.
In the present proceeding, the Magistrate had a discretion to allow into evidence the second certificate. That discretion was to be exercised in all the circumstances of the case. An immediate inquiry to be made on the appeal is whether the person aggrieved has suffered prejudice, and the nature and extent of that prejudice. The defendant has been unable to demonstrate any real or substantial prejudice. He knew that the prosecution was going to rely on a certificate of accuracy. The second certificate was produced at the beginning of the trial, and the defendant was able to cross-examine on that certificate. This ground of appeal should be rejected.
Admission of rebuttal evidence
The principles governing the admission of rebuttal evidence after the close of the defence case, were discussed by the High Court in Shaw.[7] Dixon, McTiernan, Webb and Kitto JJ observed:[8]
Clearly the principle is that the prosecution must present its case completely before the prisoner's answer is made. There are issues the proof of which do not lie upon the prosecution and in such cases it may have a rebutting case, as when the defence is insanity. When the prisoner seeks to prove good character evidence may be allowed in reply. But the prosecution may not split its case on any issue. The Court possesses a power to allow further evidence to be called, but it must be exercised according to rule and the rule is against reopening the Crown case unless the circumstances are most exceptional. We are not disposed to lay down the rule in the terms adopted from Tindal C.J. in R. v. Frost, at p. 386. It is a matter of practice and procedure, and in such matters, even where the procedure is criminal and is directed to safeguarding the position of the accused, there is less reason for closely following English authority than where the development of the substantive law is involved. It is, for example, difficult to apply the rule where the jury ask for the recall of a witness or further proof or disproof of a fact. It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence. The argument that ss. 430, 431 and 448 of the Crimes Act 1928 (Vict.) combine to make it impossible for the prosecution to call further evidence after the prisoner has entered upon his defence, or at all events concluded it, is, we think, unsound. But the policy of these provisions strengthens the principle which makes a departure from the rule allowable only in exceptional circumstances. Further, although we have not thought it proper to adopt the formula of Sir Nicholas Tindal, the English cases make it plain enough that generally speaking an occasion will not suffice for allowing an exceptional course if it ought reasonably to have been foreseen. Again, it may be pointed out that even an unexpected occasion may be of such a nature that it would have been covered, had the Crown case been fully and strictly proved.
[Footnotes omitted, emphasis added.]
Fullagar J observed:[9]
These things having been said, however, it remains true and important that the Crown should be permitted to adduce evidence after the close of the case for the defence only in exceptional circumstances and when it is reasonably clear that the accused will not be unfairly prejudiced by the admission of the evidence. A wide discretion must be conceded to the judge presiding at the trial, but it should be regarded as limited in that way, and it is to be remembered that the practical effect of evidence on the minds of a jury may differ according as the evidence is adduced in chief or by way of replication. But the discretion ought not to be regarded as further limited or as governed by any rigid rule or formula.
[7]    Shaw v The Queen (1952) 85 CLR 365.
[8]    Shaw v The Queen (1952) 85 CLR 365 at 379-380.
[9]    Shaw v The Queen (1952) 85 CLR 365 at 383-384.
The Magistrate allowed the prosecution to call evidence in rebuttal, deciding that the case was “exceptional”, notwithstanding a finding that the prosecution could not have reasonably foreseen the course of the trial. The Magistrate’s finding was largely based on the wide ranging effects that a decision that the Ultralyte device was inaccurate would have upon the enforcement of laws regulating speed in this State.
The defendant contended on appeal that this Court should interpret the above observations in Shaw as meaning that the circumstances of a case cannot be exceptional if they ought reasonably to have been foreseen. The prosecution submitted that this was incorrect. It was said that the Court in Shaw had made it clear that there was no strict or rigid formula. The prosecution drew attention to the use of the words “generally speaking” preceding the limiting words of “ought reasonably to have been foreseen”. There is merit to the prosecution’s submission.

The defendant further submitted that the apparent public policy motive for the Magistrate’s decision is not mentioned in Shaw as an accepted basis for a finding of exceptionality. This submission is ill-conceived when one notes the emphasis by the court in Shaw that a “rigid formula” should not be adopted.
In this case the Magistrate was faced with evidence, not of an independent expert, but of a defendant with some established expertise. The Magistrate was also faced with an application to have an expert called by the prosecution. One concern was that a decision based on the defendant’s evidence that the Ultralyte device was inaccurate would have wide, sweeping ramifications. This was a relevant factor because of the significant implications that would follow if the defendant’s evidence was incorrect. I have come to the view that it was open to the Magistrate to consider that the circumstances were exceptional, and that the Magistrate correctly applied the test from Shaw.
Expert evidence given outside field of expertise
The test of whether a witness should be regarded as an expert in a particular field was set out by King CJ in Bonython:[10]
The general rule is that a witness may give evidence only as to matters observed by him. His opinions are not admissible. One of the recognized exceptions to this rule is that which relates to the opinions of an expert. This exception is confined to subjects which are not, or are not wholly, within the knowledge and experience of ordinary persons; Clark v. Ryan. On such subjects a witness may be allowed to express opinions if the witness is shown to possess sufficient knowledge or experience in relation to the subject upon which the opinion is sought to render his opinion of assistance to the court. Before allowing a witness to express such opinions, the judge must be satisfied that the witness possesses the necessary qualifications, whether those qualifications be acquired by study or experience or both. But when it is established that the witness is an expert in the relevant field of knowledge, he will be permitted to express his opinion, however unconvincing it might appear to be (Commissioner for Government Transport v. Adamcik), subject always, of course, in a criminal trial to the discretion to exclude evidence whose prejudicial effect is disproportionate to its probative value. The weight to be attached to his opinion is a question for the jury.
[Footnotes omitted.]
[10] R v Bonython (1984) 38 SASR 45 at 46.
As earlier observed, the prosecution called rebuttal evidence from Mr Van der Zalm. He was the manager of the calibration and technical laboratory of the South Australian Police, and possesses over 40 years’ experience in electronics. He was accepted by the Magistrate to be an expert. His expertise was accepted as relating to the calibration, repairs and technical operation of laser equipment and, in particular, with respect to their application to the process of speed detection.
On appeal, the defendant accepted that the Magistrate ruled correctly with respect to the scope of Mr Van der Zalm’s expertise, based on his qualifications and experience. The defendant complained, however, that Mr Van der Zalm was not accepted as an expert with respect to the design and implementation of the Ultralyte device, and that notwithstanding that limitation, he was permitted to give evidence in relation to the design and implementation of specific algorithms used by the device to calculate the speed of a vehicle.
In Casley-Smith v FS Evans & Sons Pty Ltd (No 1),[11] with respect to the limits of expert evidence, Olsson J observed:
Nevertheless opinion evidence must strictly be confined to matters which are truly the subject of the special knowledge study or experience of the proposed witness; and the witness may not be permitted to range outside of his or her proper sphere of expertise merely under the rubric of some wide, generic type, description or title of qualifications said to be held: see Transport Publishing Co Pty Ltd v Literature Board of Review (1956) 99 CLR 111 at 119.
That is, of course, not to deny the validity of the point recently made by Cox J in Tabe v Stanbury (unreported, Supreme Court, SA, No 826, 13 July 1988), that the vital issue is always the span of a person's training and experience enabling that person to make a responsible judgment; and not necessarily the relative depth of specialist knowledge within a particular discipline area — leaving to one side abstruse areas so highly specialised that a mere basic formal qualification or experience would necessarily and patently be quite inadequate to found any helpful, responsible, opinion.
[11] Casley-Smith v FS Evans & Sons Pty Ltd(No 1) (1988) 49 SASR 314 at 321.
Mr Van der Zalm’s evidence addressed his qualifications and lengthy experience. His evidence addressed the use of lasers generally and, more particularly, the use of the Ultralyte device to measure speed, as well as the calibration, testing and repair of that device. Importantly, Mr Van der Zalm gave evidence about the errors that occur with attempts to measure speed by the device. Mr Van der Zalm was cross-examined about the tests performed prior to the use of the device, as required by the legislation, and the possibility of slip, sweep and multi-path errors and their respective effects. He was also cross-examined as to the National Association of Testing Authorities accreditation of the South Australian Police laboratory, of which he is the manager, and the way in which pulse streams are sent and received by the device in order to detect speed.
On the hearing of the appeal, the defendant was unable to direct the court to examples in the evidence of where Mr Van der Zalm had impermissibly given evidence outside of his field of expertise. The evidence given by Mr Van der Zalm addressed the use, calibration, repair and technical operation of the Ultralyte device - the very area of expertise attributed to Mr Van der Zalm for the purposes of the trial. Mr Van der Zalm did not give evidence outside his field of expertise.
Hearsay evidence
The defendant further complained that Mr Van der Zalm had been allowed to give hearsay evidence when he gave evidence as to the algorithms used by the Ultralyte device in the detection of speed. This complaint was advanced on the basis that the knowledge of Mr Van der Zalm in this respect was second-hand and he had conceded that he did not have first-hand knowledge of the actual source code used to implement the algorithm, nor the “tolerances” of that algorithm.
While Mr Van der Zalm did state that he had been “told” certain things by the manufacturer of the Ultralyte device, he was so informed during his training in the use and calibration of the device, a role which he has gone on to perform since the introduction of the use of the device in South Australia. This evidence is also to be understood against a background of over 40 years’ experience in electronics. The fact that one is taught by someone else does not automatically make the subject of that teaching hearsay.
I am of the view that there is no substance to this submission, and that this ground of appeal should be dismissed.
Right of reply
On the hearing of the appeal, an issue was raised as to the lack of opportunity afforded to the defendant to reply to the expert evidence given by Mr Van der Zalm. It was said that although cross-examination occurred, the defendant was denied procedural fairness in not having the opportunity to meet this expert testimony with evidence. The transcript on the file ends at the completion of cross-examination and does not record the closing of the case. In this respect I allowed counsel for the prosecution the opportunity to file an affidavit by the police prosecutor as to his recollection of the course of the trial. The police prosecutor deposed to recalling each party being given the opportunity to present a closing argument, but had no recollection of the details of the submissions made by the defendant. The police prosecutor did not recall any mention of a right to reply. This affidavit has not resolved the matter conclusively.
Because this appeal is by way of re-hearing, as earlier observed I gave the defendant an opportunity to consider further evidence that he may wish to lead. The defendant did not take this matter any further. Although the course of the trial could have progressed in a manner more favourable to the defendant, on a thorough review of the material and the submissions made on the hearing of the appeal, I am satisfied that no substantial injustice arises.
Lack of independence of expert witness
Finally, it is important to note that the fact that the defendant was not an independent expert is a relevant matter. At the heart of the concept of an expert witness is the giving of independent evidence to assist the court, by way of objective, unbiased opinion.[12] The authorities make plain that the fact that an expert witness is not independent, such as in the within proceeding, does not disqualify the witness as an expert. It is to be observed that although the lack of independence does not go to admissibility, it is relevant to the weight to be attached to the expert’s evidence.[13] The oft quoted remarks of Lord Wilberforce in Whitehouse v Jordan are apposite:[14]
[I]t [is] necessary that expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.
[12] R v Harris [2006] 1 Cr App R 5, 55.
[13] R v Gokal, (Unreported, March 11 1999, Court of Appeal, England).
[14] Whitehouse v Jordan [1981] 1 WLR 246 at 256-257.
The approach to the limits of the role of an expert witness in England is in some ways distinct from the approach in Australia. However, the following are settled: an expert should provide independent assistance to the court by way of unbiased opinion,[15] and an expert witness should never assume the role of an advocate.[16] It follows that while there may exist no principle in Australia which would exclude as inadmissible the evidence of an expert based merely on lack of independence, the fact of a lack of independence does go to weight.[17]
[15] National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd’s Rep 68 at 81-82 (Creswell J) citing Polivitte Ltd v Commercial Union Assurance Co Plc [1987] 1 Lloyd’s Rep 379 at 386 (Garland J).
[16] Heydon, Cross on Evidence, 6^th Australian Edition, 2000 at [29080] citing Fox v Percy (2003) 214 CLR 118 at [151].
[17] See for example FGT Custodians v Fagenblat [2003] VSCA 33; SmithKline Beecham (Australia) Pty Ltd v Chipman (2003) 131 FCR 500; Flavel v South Australia (2007) 96 SASR 505; Fortson Pty Ltd v Commonwealth Bank of Australia (2008) 100 SASR 162.
It is to be further observed that in the present proceeding, in his evidence as an expert, the defendant was able to identify possible problems with lasers generally and no more. The defendant was unable to address the specific Ultralyte device. If there was to be an attack on the reliability and accuracy of speed detection devices generally, substantially more evidence was required. It was appropriate that the police called an expert witness with what can be characterised as primarily “practical” expertise.
For these reasons, it was open to the Magistrate to accept the evidence of the expert witness called by the Prosecution, and prefer that evidence.
Conclusion
This appeal is dismissed.