Kulikovsky v Police

Case [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

  1. This is an appeal against conviction. 

    Background

  2. 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…

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Kulikovsky v Police [2010] SASC 58
Case
[2010] SASC 58
Decision Date

CaseChat Overview and Summary

The appeal by Andrew Simeon Kulikovsky, the appellant, was against his conviction for speeding on 26 March 2008 at Pooraka. Kulikovsky was charged with driving at a speed of about 89 kilometres per hour on Montague Road, which had a speed limit of 70 kilometres per hour. Following a trial before a Magistrate, Kulikovsky was found guilty. Kulikovsky appealed the conviction, arguing that the Magistrate made several errors during the trial. Specifically, he challenged the accuracy of the laser speed device used to record his speed and argued that the Magistrate erred in allowing the prosecution to reopen its case to call expert evidence and in accepting a certificate of accuracy.

The key legal issues in the appeal were whether the Magistrate erred in accepting the certificate of accuracy and in allowing the prosecution to reopen its case. The appeal also addressed whether the prosecution expert gave hearsay evidence or evidence outside of their field of expertise. The court considered the principles governing the admission of rebuttal evidence after the close of the defence case and whether the prosecution's case should be split. The court also assessed whether the appellant suffered prejudice from the Magistrate's decision to allow the prosecution to reopen its case.

The court held that the Magistrate was within their discretion to accept the evidence of the expert witness called by the prosecution and to prefer that evidence. The court found that the appellant had not demonstrated any real or substantial prejudice from the Magistrate's decision to allow the prosecution to reopen its case. The court noted that the appellant was aware that the prosecution was going to rely on a certificate of accuracy, and the second certificate was produced at the beginning of the trial, allowing the appellant to cross-examine on that certificate. The court concluded that the appeal should be dismissed, as the Magistrate did not err in their decision-making.

This appeal is dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

GRAY J
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.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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