Ledgard v Police - [2016] SASC 48

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LEDGARD v POLICE
[2016] SASC 48
Judgment of The Honourable Chief Justice Kourakis
15 April 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - REMISSION FOR REHEARING
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS
Appeal to a single Judge of the Supreme Court from a decision made in the Magistrates Court.
The appellant was convicted in the Magistrates Court for an offence of exceeding the speed limit, contrary to the Australian Road Rules.
The appellant argued that the verdict was against the weight of the evidence (grounds 1 and 3), that the Magistrate failed to properly apply the burden of proof (ground 2), that the Magistrate erred in his analysis of the testimony of the speeds and distances given by the police officer (ground 4), that the Magistrate erred in his use of evidence of the police officer and there was no evidence to support its accuracy (ground 5), and that the Magistrate failed to provide adequate reasons to support his finding for the rejection of the appellant’s evidence (ground 6).
Held per Kourakis CJ, allowing the appeal:
1   The Magistrate failed to recognise that the inherent improbability on which he was relying was premised on accepting the truth of the police officer’s testimony (ground 3).
2.   All other grounds of the appeal are dismissed.
3.   Conviction set aside.
4.   Matter remitted to the Magistrates Court for re-trial.
Road Traffic Act 1961 (SA) s 175(3)(b); Australian Road Rules r 20, referred to.
Price v Williams (Unreported, Supreme Court of South Australia, Duggan J, 13 May 1993), considered.

LEDGARD v POLICE
[2016] SASC 48
Magistrates Appeal: Criminal

KOURAKIS CJ: This is an appeal against a conviction entered in the Magistrates Court for an offence of exceeding the speed limit contrary to r 20 of the Australian Road Rules. The appellant was convicted of riding his motorcycle at a speed of 104 kph on Main South Road, Noarlunga Downs where an 80 kph speed limit applied.
The prosecution evidence consisted primarily of the testimony of a police officer, Senior Constable Kungel, and a certificate of accuracy tendered pursuant to s 175(3)(b) of the Road Traffic Act 1961 (SA). No objection is taken to the receipt into evidence of the certificate of accuracy. The other exhibits were simply maps and photographs of the relevant section of Main South Road.
The appeal is brought on the following grounds:
·That the verdict was against the weight of the evidence and the Magistrate failed to properly weigh and evaluate that evidence (grounds 1 and 3);
·The Magistrate failed to apply the burden of proof in that he found the charge proved on the basis that the evidence of Senior Constable Kungel was merely ‘more likely’ (ground 2);
·The Magistrate erred in his analysis of the testimony of the speeds and distances given by Senior Constable Kungel (ground 4);
·The Magistrate erred in his…

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.

Continue reading Ledgard v Police

Details

AGLC: Ledgard v Police [2016] SASC 48
Case: [2016] SASC 48
Decision Date: 15 April 2016

CaseChat Overview and Summary

The case of Ledgard v Police involved an appeal by the defendant against a conviction for exceeding the prescribed speed limit. The matter was heard in the Supreme Court of South Australia. The appeal was based on several grounds, including that the verdict was against the weight of the evidence and the Magistrate failed to properly weigh and evaluate that evidence. The appellant also argued that the Magistrate failed to apply the burden of proof, erred in his analysis of the testimony of the speeds and distances given by Senior Constable Kungel, and erred in his use of Senior Constable Kungel’s evidence of a ‘back capture speedometer’ because there was no evidence of the accuracy of that device. Finally, the appellant argued that the Magistrate failed to provide adequate reasons to support his finding for the rejection of the appellant’s evidence.

The court considered whether the Magistrate properly assessed the evidence and applied the burden of proof. The court noted that the Magistrate did not need to make a separate finding that he disbelieved the appellant. It was sufficient that the Magistrate was satisfied on the Senior Constable Kungel’s testimony that the charge had been proved beyond reasonable doubt. The court found that there was nothing in the Magistrate’s reasons to suggest that he did not follow this process of reasoning. However, the court found that the Magistrate erred in his use of Senior Constable Kungel’s evidence of a ‘back capture speedometer’ because there was no evidence of the accuracy of that device. The court also found that the Magistrate failed to provide adequate reasons to support his finding for the rejection of the appellant’s evidence.

The court allowed the appeal on ground 3 and set aside the conviction. The matter was remitted to the Magistrates Court for a re-trial. The court did not make any further orders.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appeal is brought on the following grounds:·That the verdict was against the weight of the evidence and the Magistrate failed to properly weigh and evaluate that evidence (grounds 1 and 3);·The Magistrate failed to apply the burden of proof in that he found the charge proved on the basis that the evidence of Senior Constable Kungel was merely ‘more likely’ (ground 2);·The Magistrate erred in his analysis of the testimony of the speeds and distances given by Senior Constable Kungel (ground 4);·The Magistrate erred in his use of Senior Constable Kungel’s evidence of a ‘back capture speedometer’ because there was no evidence of the accuracy of that device (ground 5); and·The Magistrate failed to provide adequate reasons to support his finding for the rejection of the appellant’s evidence given that he did not reject it or make any other adverse credibility finding (ground 6).The Evidence Both Senior Constable Kungel and the appellant testified that they had stopped at traffic lights at the southern end of the Southern Expressway with the appellant’s motorcycle in a stationary position ahead of Senior Constable Kungel’s motorcycle. Senior Constable Kungel testified that he and the appellant were both in the left hand lane of three lanes for southbound traffic. Senior Constable Kungel testified that he believed that the appellant was not aware of his presence. On the lights turning green the appellant accelerated rapidly. Senior Constable Kungel followed him at a distance of about 20 metres and, at a point about 100 metres from the traffic lights, the appellant had reached a speed of 104 kph. Senior Constable Kungel testified that he believed that the appellant could not see him because of the way he held his hands which meant that his elbows obscured his rear vision mirror. After following the appellant for between 180 to 230 metres Senior Constable Kungel accelerated, pulled up alongside the appellant and indicated to him to pull over. As he accelerated alongside, he operated a button on the console of his motorcycle which recorded the speed, 110kph, at which he was then travelling. After pulling over the appellant Senior Constable Kungel showed him that reading. The appellant testified that he was aware when at the traffic lights that a police officer was behind him and accelerated away from the lights in the knowledge that a police officer was following him. He testified that he accelerated only until he reached a speed of 80 kph and then maintained that speed. He testified that he reached that speed when he was 100 metres from the traffic lights and that, at that point, the police officer was about 50 to 100 metres behind him. The police officer activated the warning lights when he was 25 to 50 metres behind him and then accelerated into the right hand lane. The appellant testified that he gestured with his right hand to ask if he should pull over and that Senior Constable Kungel confirmed that he should do so with a gesture of his left hand. The appellant agreed in his evidence that he was shown a LED display showing a speed of 110 kph.

Decision

Reasons for decision

The Magistrate’s reasons are necessarily brief. The outcome of the case depended on the assessment of the testimony of witnesses. It was not necessary for the Magistrate to make a separate finding that he disbelieved the appellant. It is sufficient that the Magistrate was satisfied on the Senior Constable Kungel’s testimony that the charge had been proved beyond reasonable doubt. If any authority for those propositions is required it can be found in the judgment of Duggan J in Price v Williams:[1] Furthermore, although a finding of guilt is to be made only after consideration of the whole of the evidence, the fact finder does not have to be satisfied of an accused person’s guilt on his or her evidence alone. A major consideration in the disbelief of one witness may lie in the satisfaction beyond reasonable doubt of the veracity of another or other witnesses. Of course the accused’s evidence must be taken into account and consideration given to the question as to whether it raises a reasonable possibility of innocence.But in my view there is nothing in his Honour’s reasons to suggest that he did not follow this process of reasoning. Indeed he specifically referred to the appellant’s denial that he had ever given such advice to any client. Then it was submitted in argument that the learned magistrate had acted contrary to the approach to the consideration of guilt as explained in The Queen v Calides 34 SASR 355. It must be remembered that Calides’ case dealt with directions to be given to a jury in certain cases where it is essential to instruct the jury on the various alternatives to be considered by them. Although a magistrate should consider the same alternatives in an appropriate case, it is unnecessary for the reasons for decision to refer specifically to those alternatives. It is sufficient, as the learned magistrate did here, to indicate that he was completely satisfied with the evidence led by the prosecution. As the judgment of Wells J in Calides makes clear, if that view is reached then “assuming all other matters to be properly established the verdict will be guilty”.[1] (Unreported, Supreme Court of South Australia, Duggan J, 13 May 1993). Conclusion I would allow the appeal on ground 3. I set aside the conviction and remit the matter to the Magistrates Court for a re-trial.

Ratio Decidendi

Legal Principle Established

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