MARTELLI v Police - [2007] SASC 21

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MARTELLI v POLICE
[2007] SASC 21
Judgment of The Honourable Justice Anderson
1 February 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES - POWERS OF JUDGE - LEAVE TO RE-OPEN CASE AND RECALL WITNESSES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN MANNER DANGEROUS TO PUBLIC
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
Appeal from a decision of a magistrate – appellant convicted of driving in a manner dangerous to the public.
Use of document to certify accuracy of speed detection device – whether particular document capable of proving accuracy of speed detection equipment.
Prosecution case concluded without tender of document – magistrate granted leave to prosecution to re-open case and tender further evidence – whether magistrate erred in exercising discretion to re-open case and allow further evidence – whether document properly certified.
Held: appeal allowed – conviction quashed – that document was capable of proving accuracy of speed detection equipment – document certified and signed appropriately – magistrate erred in allowing prosecution to re-open case – discretion of magistrate miscarried.
Road Traffic Act 1961 (SA) s 175, referred to.
McDonald v Camerotto (1984) 36 SASR 66, distinguished.
Middleton v Rowlett [1954] 1 WLR 831, considered.

MARTELLI v POLICE
[2007] SASC 21
Magistrates Appeal
ANDERSON J
Introduction

The appellant appeals from a conviction for driving in a manner dangerous to the public following a hearing before a Magistrate. A certificate pursuant to s.175 (3)(ba) of the Road Traffic Act 1961 (SA) (the Act) was tendered as to the accuracy of the laser speed detection device which was used to establish the speed at which the appellant was driving at the time in question. The application to tender the certificate was made by the police prosecutor after she had closed the prosecution case. Defence counsel objected to the tender of the certificate.
The questions raised in the appeal are whether the learned Magistrate erred in granting leave to the respondent to re-open its case and call further evidence about the accuracy of the speed measuring device after it had closed its case and, in addition, whether the learned Magistrate erred in finding that the document required by s 175, which in this matter was titled "Certificate of Accuracy of Traffic Speed Analyser" (the document), amounted to evidence capable of proving the speed alleged by the prosecution.
The Document
Section 175 (3)(ba) provides that:
"In proceedings for an offence against this Act a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or by any other member of the police force 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 extend indicated in the document constitutes, in the absence of proof to the contrary, proof of the fact certified and that the traffic speed analyser was accurate to that extent on the day on which it was so tested…"
It was pointed out by Mr Edwardson for the appellant that the terms of that section require that the document can only be signed by the Commissioner of Police or by any other member of the police force of or above the rank of inspector. It was argued that therefore the purported certification, which was made by a Constable Petts, a police officer below the rank required to make the certification, was invalid.
It seems to me that the section requires first a document, secondly, which is purportedly signed by the high ranking police officer and thirdly, which purports to certify that the device has been tested and is accurate.
In the document, Constable Petts certified that the laser detection device bearing a specific serial number had been tested and was found to be accurate and functioning correctly. Constable Petts' certification was witnessed by Inspector Carter. The document provides for two signatures, namely, that of the person certifying and that of the person witnessing. The section requires that the document be signed by a senior officer and also requires that the document certify the accuracy of the instrument. The section does not require that the certification (the actual testing for the accuracy of the instrument) has to be done by the high ranking officer. That would not seem to be practical and in my view the section does not require that. Clearly the person certifying the accuracy of the instrument has to go before the senior officer to vouch for the testing that has been carried out. The senior officer is then required to sign or perhaps more accurately "sign off" on the certification; in other words, the senior officer is required to ensure that someone has appropriately certified the accuracy of the device.
However the document used in this instance is somewhat confusing and unsatisfactory because it does not follow the wording of the section. At the conclusion of argument I asked Ms Makiv, counsel for the respondent, to give me some further information regarding the document. I was later provided with information by way of an affidavit from a sergeant in the Management Development Section of the Prosecution Services Branch of the South Australian Police. The affidavit indicates that the document used on this occasion was a proforma which was in use in the Port Adelaide Traffic Office of the South Australia Police during 2004. I was informed that this particular document was one of a number of forms of that type in use by SAPOL at the time in question. I was also informed that these forms are revised from time to time and that the document in question in this matter is not in common use today.
It is my view that, although unsatisfactory in its failure to clearly follow the words of the section and to set out the requirements of the section in simple terms, the document was nevertheless on its face sufficient. It was signed in fact by an Inspector and it purported to certify that the device had been tested and was accurate. It therefore complied with the section.
Re-Opening Prosecution Case
That then leads to the second matter raised in this appeal, which is the alleged unfairness to the appellant in the presentation of its case by not having the document produced to his advisors prior to the trial.
The Magistrate in his reasons pointed out that this matter was in the list from 28 May 2004. The hearing before the Magistrate was on 22 November 2005. In August of 2004 there was a pre-trial conference but no document pursuant to s 175 was produced to the defence.
Defence counsel had informed the prosecution prior to the trial that the prosecution was being put to proof on every issue. Still there was no document produced. Understandably, defence counsel did not cross-examine the prosecution witness in any way which allowed the prosecution to prove its case. Defence counsel was quite entitled to take this stance and to rely on an absence of proof in the prosecution case so that at the conclusion of the prosecution case he could submit no case to answer.
When the prosecution case was completed and the prosecutor announced that it was the case for the prosecution, there was an adjournment during which time the prosecutor apparently realised the fact that she had failed to tender any document pursuant to s 175. She then gave the document to defence counsel for the first time. After some further argument the prosecutor then realised that the document in itself would not prove her case, and that she would need to lead further evidence to explain the document. Accordingly an application was made by the prosecutor to re-open the case. This was opposed by defence counsel but after hearing argument the Magistrate ruled that the prosecution could re-open its case. As a result the prosecutor recalled Constable Petts and Sergeant Delany to give further evidence and also called a new witness, Inspector Carter, whose signature appeared on the document.
Defence counsel made the point during argument before the Magistrate that, on the basis of the information supplied to him by the prosecution prior to the trial, there was every indication that there would be no case to answer and that accordingly he had remained deliberately silent on that topic. As I have indicated he was quite entitled to do that. What happened then is that, rather than being able to rely on the lack of evidence in the prosecution case, defence counsel was confronted with effectively a reversal of onus and put in the position of having to counter the evidence of the document produced to him at that late stage after the case for the prosecution had been closed.
The Magistrate in his brief reasons for allowing the re-opening of the case was apparently influenced by the fact that he regarded the lack of proof at the end of the prosecution case as being a "genuine oversight". He said in his reasons at [7] :
The allegations of speed are serious. That is a matter I should take into account. Here we have a case in which a promising young prosecutor has closed her case overlooking the need to offer evidence of the reliability of the equipment used. This is a serious allegation of its kind. The issues should be fully presented and examined. From the community's point of view it would be too harsh a result to declare that the closing of the case for the complainant should bring an end to this matter. The issues can still be fully explored if leave to re-open is given.
It has been put to me by Ms Makiv that I should not interfere with the exercise of the discretion of the Magistrate to allow the case to be re-opened. She points out there must be a demonstration that the Magistrate has erred or was plainly wrong in the exercise of his discretion. As pointed out by Cox J in McDonald v Camerotto (1984) 36 SASR 66 at 75 it is not simply a matter of this court substituting its opinion for that of the Magistrate.
However I am convinced that the Magistrate has erred in the exercise of his discretion and has fallen into error. I refer back to the history of the matter and the long time which elapsed during which the defence were given no information as to how the prosecution intended proving its case. No document was ever produced to them. No intimation was ever given to them that any document would be produced.
The defence was then taken by surprise after the case was closed. The prosecution had been told by the defence that they were being put to strict proof and it should have been assumed there would be a no case submission if sufficient proof was not tendered.
The case took a dramatic turn when, first the application was made to tender the certificate, and secondly when, upon realising that the certificate alone would not be sufficient, the prosecutor applied to re-open her case.
It seems to me that it does not matter in the circumstances of this case that the police prosecutor was inexperienced. The prosecution case was, as Mr Edwardson put it, "re-jigged" after the omissions became apparent but the matter had been in the prosecution section for at least 18 months before the trial.
Mr Edwardson, in his argument described the omissions as:
"… a fundamental, crucial piece of evidence that the prosecution had to prove beyond reasonable doubt."
He submitted that it was not a technical oversight in the context discussed by Cox J in McDonald v Camerotto. That case is distinguishable in my view. In that case Cox J reversed the decision of a Magistrate who refused to grant leave to the prosecution to re-open its case to tender a certificate relating to the prescribed concentration of alcohol present in the blood. Again, it was an inexperienced prosecutor who closed the case for the prosecution without tendering the necessary certificate.
Cox J reviews, in a very helpful summary, similar cases which on their face demonstrate that normally a prosecutor would be allowed to re-open a case to correct an error where it results from an oversight or misunderstanding and there is no question of the defendant's case being prejudiced.
Here the matter is quite different. The prosecution were on notice from a very early stage that strict proof was required. The respondent could not possibly prove its case without the tender of the document. It could hardly be described as an oversight. It was decided for whatever reason not to provide the document to defence counsel in advance and to lead no evidence regarding it. When the document finally became evidence the onus changed and the defendant was required to establish that the measuring instrument was not accurate and was thereby placed in an almost impossible position being confronted with this evidence for the first time. I believe that to be prejudicial to the defence.
One of the cases referred to by Cox J was Middleton v Rowlett [1954] 1 WLR 831 where the prosecution sought to re-open its case to prove that the defendant was the driver of a car. The defendant had been charged with dangerous driving. As Cox J, in commenting on that case, says:
"The court did not regard it as a matter of merely technical or formal evidence which did not touch the substance of dispute between the parties."
The prosecution was not permitted to re-open its case in Middleton. The omission to prove who the driver was clearly went to the very substance of the matters required to be proved.
I do not regard this omission by the prosecutor as a technical oversight or a matter of formality because it touched the very heart of the dispute between the parties, namely, what speed the defendant was travelling at the relevant time, and how that speed was to be proved.
It is my view that the Magistrate erred in allowing the prosecution to re-open its case, tender the certificate and call further evidence. It is for these reasons that I believe the discretion of the Magistrate miscarried. I would therefore allow the appeal and quash the conviction.