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 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.
In the course of Senior Constable Kungel’s cross-examination an inconsistency was revealed between his evidence of the distance and time over which he had followed the appellant: see also [11]. The Magistrate dealt with that inconsistency as follows:
He stated in his evidence that he had followed the defendant for approximately 4 seconds at 104 kph before activating his warning lights. He was cross examined on that evidence at some length. There was an inconsistency between his evidence of following the defendant for up to 230 metres and the time of 4 seconds. If 104 kph is 28.88 metres per second then if SC Kungel followed the defendant for 4 seconds then he followed the defendant for a distance of 115.56 metres and not as much as 230 metres. Either he followed the defendant for more like 8 seconds or if both the distance and time were correct, the defendant was travelling at a very much faster speed.
In my view this cross examination did not undermine SC Kungel’s credibility. At no time did he purport to suggest that he measured the time he followed the defendant. He did not claim to have timed the procedure with a stop watch. He explained that it was a matter of counting the time in his head. The cross examination proceeded on a far too literal appreciation of his evidence. The internal inconsistency, such as it was, disclosed by this cross examination does not affect SC Kungel’s credit in my view. All that it shows was that he followed the defendant for a longer period that he estimated.
The Magistrate also analysed the differing accounts of Senior Constable Kungel and the appellant as to the speeds at which they moved off from the traffic lights for the purposes of comparing those accounts with Senior Constable Kungel’s evidence that by the time he was alongside the appellant he had reached a speed of 110 kph. That analysis was as follows:
The defendant claimed that his motorcycle was incapable of accelerating from 0 to 104 kph in 100 metres. It was a 650 cc motorcycle but was a learner modified bike suitable for a rider with a learner’s licence. There was no evidence independent of the defendant’s to suggest that the motorcycle was incapable of reaching that speed in that distance. SC Kungel maintained that he witnessed the defendant reach that speed. The claim that the motorcycle was incapable of accelerating to that speed takes the matter no further than an assessment of the strength of each witness’ evidence.
The captured speed of 110 kph on SC Kungel’s speedometer provides some corroboration for SC Kungel’s evidence. If the defendant had accelerated to 80 kph within 100 metres of the lights and then reduced his speed to 70 kph as he claimed it is unlikely that SC Kungel would have reached a speed of 110 kph when following him at a claimed distance of 20 metres. However, on the defendant’s evidence the two were alongside one another for about 300 metres from the lights and that when he was about 100 metres from the lights and travelling at 80 kph, SC Kungel was 50 to 100 metres behind accelerating slowly. If that was the case I accept that a speed of 110 kph could have been reached for SC Kungel to catch up.
It is an unlikely scenario that SC Kungel would accelerate at first as ponderously as claimed by the defendant. I can assume that SC Kungel’s bike is at least as powerful as the defendant’s. SC Kungel was directly behind the defendant at the lights. He had chosen to follow the defendant. It is unlikely in my view that he would be travelling at a speed of less than 40 kph and at least 50 metres behind by the time the defendant reached 80 kph over a distance of 100 metres.
The Magistrate gave the following reasons for finding the offence proved beyond reasonable doubt:
SC Kungel was a good persuasive witness. He was clear and responsive, and was not swayed or undermined after extensive cross examination. That, together with the more likely account he has given for the captured speed of 110 kph, has convinced [me] beyond doubt that the defendant’s evidence must be rejected.
Grounds of appeal
Grounds 1 and 3 – Evaluation of and the weight of the evidence
The appellant complains that the verdict was against the weight of the evidence and that the Magistrate failed to properly weigh and evaluate that evidence. The appellant contends that the Magistrate drew an adverse inference against the appellant for not calling independent evidence about the acceleration capacity of his motorcycle. The appellant gave evidence that his motorcycle was not capable of accelerating to 104 kph in 100 metres. The Magistrate commented on that testimony that ‘[t]here was no evidence independent of the defendant’s to suggest that the motorcycle was incapable of reaching that speed in that distance’. However, the Magistrate almost immediately explained the use to which he put that observation when he said:
The claim that the motorcycle was incapable of accelerating to that speed takes the matter no further than an assessment of the strength of each witness’ evidence.
It is plain from the reasons, read fairly and in context, that the Magistrate did not draw an adverse inference from the appellant’s failure to call independent evidence of the motorcycle’s capacity. The Magistrate was simply making the point that the appellant’s claim as to the capacity of his motorcycle was, like his testimony of the speed at which he was travelling on the day, dependent on an assessment of his credit and reliability and did not carry with it any more objective quality. The Magistrate’s observation makes it equally clear that there was no objective support of Senior Constable Kungel’s testimony and that the result therefore depended on an assessment of the weight of the testimony of Senior Constable Kungel and the appellant.
The appellant also contends that the reasoning which led the Magistrate to conclude that Senior Constable Kungel’s account of the movement of the motorcycle was more likely than the appellant’s was erroneous. It is also complained that no reasons were provided for not accepting that the appellant’s account was ‘at the very least plausible’.
It is not clear to me that the Magistrate’s calculations are correct. They may not have taken into account the effect of acceleration. The acceleration of Senior Constable Kungel’s motorcycle means that a greater distance would have been covered in the last half of the period of acceleration than in the first. A calculation which took into account the effect of acceleration may well reveal that Senior Constable Kungel must have either delayed his take off from the lights or alternatively accelerated away from the lights even more slowly than the Magistrate thought was necessary to explain the appellant’s version of events.
Be that as it may the Magistrates finding that the appellant’s account was unlikely does explicitly assume the truth of Senior Constable Kungel’s evidence that he had chosen to follow the appellant at the traffic lights and, for that reason, immediately accelerated to keep up with the appellant. An alternative hypothesis which would explain why Senior Constable Kungel later reached a speed of 110 kph is that Senior Constable Kungel was slow to notice the traffic light change and that he only made the decision to follow the appellant at some later time, perhaps after observing the rate of the appellant’s acceleration. In general terms, one would expect a police officer on motorcycle patrol to move off quickly after a traffic light change and to be in a position to actively monitor possible breaches of the road rules, but that inference cannot conclusively be drawn here. Critically, a line of reasoning which depends on the acceptance of that part of Senior Constable Kungel’s testimony, that he immediately took off from the lights, does not give objective support to Senior Constable Kungel’s testimony that he followed the appellant over a distance of about 200 metres at a constant speed of 110 kph. It does not make Senior Constable Kungel’s testimony objectively ‘more likely’. The appellant’s complaint that too much weight was given to that analysis is made out. Moreover, the reasons show that the probability arising from that analysis was important in the Magistrate reaching his conclusion that the offence was proved beyond reasonable doubt. A mere preference for Senior Constable Kungel’s evidence over the testimony of the appellant is not sufficient to prove the offence beyond reasonable doubt.
Ground 2 – Misapplication of onus of proof
The appellant contended that the Magistrate was wrong to rely on the inherent likelihood that Senior Constable Kungel moved quickly from the traffic lights and accelerated quickly without being satisfied of that fact beyond reasonable doubt because it was an indispensable link in the chain of proof. I reject that ground. The inherent likelihood that Senior Constable Kungel moved quickly from the lights was not an indispensable link in the chain. It was an item of circumstantial evidence. The only error made by the Magistrate was to wrongly regard that evidence as providing some objective support for Senior Constable Kungel’s evidence when it was premised on an acceptance of Senior Constable Kungel’s testimony that he immediately took chase of the appellant after the traffic lights changed.
Ground 4 – Drawing an inference not available on the evidence
The appellant complains that there was no evidence of the distances and speeds used by the Magistrate in his analysis of the relative likelihood of the accounts, given by Senior Constable Kungel and the appellant respectively, on their acceleration from the traffic lights. The Magistrate was not precluded from making arithmetic calculations based on the evidence before him. Such calculations require no more than the application of basic arithmetic to the evidence given. As I have already observed, it may be that the Magistrate erred in making those calculations by failing to take into account the effects of acceleration. The result of the miscalculation may be that Senior Constable Kungel would had to have been slower to take off than the Magistrate postulated to account for the speed he reached on the appellant’s evidence. Therefore the miscalculation would not invalidate the Magistrate’s reasoning. The only error in the Magistrate’s reasoning was the failure to recognise that the inherent improbability on which he relied was premised on accepting the truth of Senior Constable Kungel’s testimony that he had decided to follow the appellant before the lights changed.
Under this ground the appellant submits that the Magistrate also erred by failing to take into account the possibility that Senior Constable Kungel might have been slower to start moving after the traffic lights turned green. In particular, the appellant’s counsel submitted that there is always a slight delay between the first vehicle in a line of vehicles at traffic lights to move off and the vehicles behind. This submission can be accepted and shows that the Magistrate must have accepted the evidence of Senior Constable Kungel that he had decided to follow the appellant before the lights turned green.
The Magistrate was entitled to accept this evidence. However the error made here is the one identified in ground 3. The Magistrate failed to recognise that the ‘more likely account’ of Senior Constable Kungel for the captured speed, which ‘convinced’ the Magistrate ‘beyond doubt that the defendant’s evidence must be rejected’ was logically dependant on an another finding as to Senior Constable Kungel’s early intention to follow the appellant.
Ground 5 – Reliance on the capture of the speed of 110 kph
Senior Constable Kungel gave the following evidence about the operation of the device on his motorcycle which captured the speed of 110 kph:
A.I then activated a button next to the right hand throttle of the police motor cycle which locks the speed of the vehicle that you are riding or driving at the time you hit that button.
HIS HONOUR
Q.It does what.
A.There’s a button or a device attached to police vehicles being cars or motor cycles that if you activate that button it will show you the speed at the time you hit that button.
XN
Q.Why did you activate that button at that stage.
A.Because in my experience with a follow and time there is no camera, there is no laser, it’s the officer’s observations and it is an easier point when you stop someone to show them a speed; they can physically see something.
Q.So you continued riding, you pressed that button and what did you do then.
A.The button was pushed momentarily as I’ve accelerated so my attention was to record the 104. However, as the bike has accelerated briefly its recorded 110 and then I’ve travelled faster than 110 to catch up to the motor cycle in front of me.
…
Q.When you gave evidence earlier you said that you pressed the button on your vehicle and it showed that you were riding at 110 km/h.
A.Yes.
Q.The reason that you would do that generally is that you can show the people that you stop what speed you were travelling at.
A.Yes.
Q.Did you show Mr Ledgard on this occasion.
A.Yes I did.
HIS HONOUR
Q.Whereabouts is it.
A.The button?
Q.No, the display.
A.If you could imagine I’m seated on my bike, the instrument panel is dead centre right in the middle with the speed, the odometer reading, kilometres and it’s directly under the speed, its right in front of you.
Q.So it’s something separate from the instrumentation on the bike.
A.Yes.
Q.It’s something that’s been added on.
A.That’s correct.
Q.What is a LED display.
A.It’s an LED display, exactly the same. As the vehicle is stopped there is no reading, there is no zero, it’s just dash, dash because the vehicle is not moving. The display still shows the odometer reading and it will still show the speed that I’ve captured and it will stay there for months on end until I hit that button again.

The appellant complains that the Magistrate erred in relying on the capturing of the speed when there was no evidence of the accuracy of the device which recorded the speed of the speedometer.
I reject that submission. There was evidence of the accuracy of the device. Senior Constable Kungel’s testimony was that he had used the device before and that he had observed that when he pressed the button on the device the LED display recorded the speed which also appeared on the face of his speedometer. It was not contended by the Prosecution, and the Magistrate did not find, that the capture of the speed on the LED display of the device was evidence of the motorcycle’s speed independent of the speedometer evidence. The accuracy of the speed shown on the LED display was dependant on Senior Constable Kungel’s evidence that it was the speed shown on his speedometer as he pressed the button when he came up alongside the appellant’s motorcycle, and not a speed recorded on a previous occasion. It was open to the Magistrate to accept that Senior Constable Kungel was truthful in testifying that he did reach a speed of 110 kph and pressed a button to record that speed when he was alongside the appellant. In any event, the Magistrate’s reasons do not suggest that he gave the fact that the speed was shown on the LED display any corroborative force. When analysing the evidence, the Magistrate proceeded on the assumption that Senior Constable Kungel was telling the truth that he had reached a speed of 110 kph.
The Magistrate accepted that it was more likely that Senior Constable Kungel’s motorcycle had reached that speed than that Senior Constable Kungel had made up a story based on the recording of the speed on an earlier occasion. The Magistrate was correct to proceed on that basis.
Ground 6 – Inadequate reasons
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.