Millington v Police

[2015] SASC 52

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

MILLINGTON v POLICE

[2015] SASC 52

Judgment of The Honourable Justice Parker (ex tempore)

23 March 2015

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS - GENERALLY

TRAFFIC LAW - OFFENCES - EVIDENCE - ALLEGATION IN INFORMATION OR COMPLAINT AS PRIMA FACIE EVIDENCE

TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED

Appeal against judgment of the Magistrates Court. The appellant was found guilty of driving a vehicle at a speed exceeding the prescribed speed limit. The offence was detected by a speed camera and the appellant received an expiation notice. The appellant did not expiate the offence and argued that, inter alia, the speed of the vehicle had not been proved.

Held (Parker J):

Appeal dismissed. The magistrate was entitled to rely on various evidentiary aids and reversal of onus provisions under the Road Traffic Act 1961 and Motor Vehicles Act 1959.

Australian Road Rules r 20; Road Traffic Act 1961 s 79B(2), s 79B(10)(a), s 79B(10)(b), s 79B(10)(c), s 175(1)(a), s 175(1)(i), s 175(3)(b), s 175(3)(ba); Motor Vehicles Act 1959 s 140; Commonwealth Constitution Chapter III; Magistrates Court Act 1991 s 7A; Commonwealth of Australia Constitution Act 1900 (Imp); Evidence Act 1929 s 59B; National Measurements Act 1960 (Cth); Oaths Act 1936 s 27; Australian Human Rights Commission Act 1096 (Cth) Schedule 2; International Covenant on Civil and Political Rights Article 15; Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 reg 50; Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 2014 reg 67, referred to.
Police v Young [2012] SASC 210, applied.
Breedon v Kongras (Unreported, Supreme Court of Western Australia, Owen J, 4 April 1996), considered.

MILLINGTON v POLICE
[2015] SASC 52

Magistrates Appeal: Criminal

1. PARKER J: Mr Millington was charged with and found guilty following a trial in the Magistrates Court on 3 December 2014 of the offence of driving a vehicle on a road, namely South Terrace, Adelaide, at a speed of about 60 km/h which was contrary to the speed limit fixed by sign of 50 km/h. That offence was a breach of rule 20 of the Australian Road Rules. The offence was detected by a traffic speed analyser device.

2. The prosecution in the trial before the magistrate relied on multiple evidentiary presumptions and aids to proof to prove its case.

3. The document admitted into evidence as P3 was a certificate of operation and testing of an approved photographic detection device. That certificate was issued under s 79B(10)(b) and (c) of the Road Traffic Act 1961. That certificate, in the absence of proof to the contrary — and I stress that — established that the relevant device was a photographic detection device and that the particular device had been operated in accordance with the Act and Regulations.

4. A further certificate tendered by the prosecution was admitted as P4. That was a certificate issued under s 175(3)(ba) of the Road Traffic Act. This certified, in the absence of proof to the contrary, that the traffic speed analyser known as a Redflex Radar Cam Mobile Digital Camera System serial No.507 had been tested on 8 December 2013 by comparison with the speedometer attached to a Toyota Camry vehicle registered number S505 AXW and was shown to be accurate to the extent that the traffic speed analyser registered 47 km/h when the speedometer on the vehicle registered 50 km/h.

5. The next document relied upon by the prosecution to establish its case was P5. That was the certificate of accuracy of a speedometer issued under s 175(3)(b) of the Road Traffic Act which established that the speedometer attached to the Toyota Camry vehicle which I had referred to previously had been tested on 6 November 2013. The speedometer on that vehicle  was found to have registered 50 km/h when the actual speed was recorded at 47 km/h.

6. Also tendered was P6 which was an extract from the Registrar of Motor Vehicles certified under s 140 of the Motor Vehicles Act 1959 which served to establish that Mr Millington was a registered owner of a Holden vehicle registered number XNF 785.

7. The prosecution also relied on s 175(1)(a) and (i) of the Road Traffic Act to establish by means of the allegations in the complaint issued to Mr Millington that respectively, in the absence of proof to the contrary, South Terrace was a road and that Mr Millington was the driver of the relevant vehicle. The effect of s 79B(2) of the Road Traffic Act is that, as the registered owner of the relevant vehicle, Mr Millington was presumed to be guilty of the offence detected by the photographic detection device in the absence of proof to the contrary.

8. The magistrate was also satisfied that the photographs tendered as P7(1) and P7(2) were admissible under s 79B(10)(a) of the Road Traffic Act as the data block on the photographs proved, in the absence of proof to the contrary, that the speed shown on the data block was in fact the speed of the relevant vehicle.

9. I have used the phrase “in the absence of proof to the contrary” in relation to these various aids to proof. The effect of that phrase in relation to those documents is that the onus lay on Mr Millington to prove on the balance of probabilities that the evidence contained in the certificates tendered to the court was not correct. Of course, the onus lay on the prosecution to establish the various matters comprising the elements of the offence beyond reasonable doubt.

10. I am satisfied that the magistrate correctly found that the relevant matters had been established beyond reasonable doubt. I cannot identify any error in her reasoning.

11. It is the law of this State that the prosecution, in relation to road traffic offences, is entitled to rely on a series of evidentiary aids and reversal of onus provisions that have been enacted over the years by the Parliament.

12. Whether an individual thinks that is fair or unfair is not the point. It is the law. The onus rests with the defendant to rebut on the balance of probabilities the evidence contained in the various certificates. I note, from reading the transcript of the trial in the Magistrates Court, that Mr Millington made submissions about various matters relating to the operation of speed cameras and ultimately sought to give evidence touching on those issues. However, he admitted to the magistrate that he was not an expert in the relevant field of knowledge. Thus his evidence was inadmissible. Hence, because Mr Millington had not rebutted the various evidentiary presumptions, the prosecution case was established beyond reasonable doubt and the finding of guilt was correctly made.

13. Mr Millington has raised a series of other objections to the finding of the magistrate on wide ranging grounds. I will deal with those in the order that they appear in his written outline of argument. While I do question whether some of those grounds are actually grounds of appeal, I will deal with them.

14. The first concern expressed by Mr Millington was that the Magistrates Court, comprising a single magistrate, was not properly constituted within the meaning of Chapter III of the Commonwealth Constitution. The submission by Mr Millington is that there should have been two magistrates rather than one. He sought in his oral submissions to explain the basis of that contention.

15. I have carefully considered the points made by Mr Millington in relation to the Chapter III issue. I am satisfied that the Magistrates Court in South Australia is properly constituted by a magistrate sitting alone. It may be that Mr Millington has become confused by the past practice of justices of the peace sitting in pairs but that is certainly not relevant to a magistrate and does not mean that the Court is not properly constituted.

16. In any event, the judicial power of this State could actually be exercised by a body that is not a Chapter III court. However, I am not suggesting that the Magistrates Court is not a Chapter III court. I am simply saying that one magistrate acting in accordance with the Magistrates Court Act 1991 is entitled to hear these matters.

17. The second matter raised by Mr Millington relates to a series of documents, some of which were tendered in evidence before the magistrate. I admitted two further documents as A1 and A2 on the hearing of the appeal. They were respectively a letter from Mr Millington to Senior Sergeant Wright of SAPOL dated 16 January 2014 and a letter from Sergeant Wright (or somebody signing on behalf of Sergeant Wright) to Mr Millington dated 13 January 2014. These documents relate to a letter that Mr Millington had sent to Senior Sergeant Wright dated 24 December 2013, which was admitted into evidence as D2, and a document headed “Notice of Default” which is the primary document, as I understand it, that Mr Millington relies upon. That document was admitted into evidence as D3 and is dated 24 January 2014.

18. The purported legal effect of this series of documents is most unclear. The best I can understand is that D3 purports to relate to a unilateral contract formed on the basis of the earlier correspondence between Mr Millington and the police. It certainly has no relevance to a prosecution for an offence under the Road Traffic Act and I very much doubt that it would have any legal effect in any context. Be that as it may, it clearly does not operate to preclude a summary prosecution. Regrettably Mr Millington may have been misled by documents that are from time to time published on the internet.

19. The third argument raised by Mr Millington was that the Road Traffic Act and the Motor Vehicles Act had not been enacted in the name of the Queen. As I understand it, the basis for that submission was the covering clauses to the Constitution found in the Commonwealth of Australia Constitution Act 1900 (Imp).

20. As I pointed out in the course of argument, since the earliest days of the Colony of South Australia the successive Governors have been entitled to assent to laws on behalf of the Sovereign. It was only in very limited circumstances, which no longer exist, that certain proposed Acts were by force of the Letters Patent, reserved for the personal assent of the Sovereign. Even though the Road Traffic Act and the Motor Vehicles Act were enacted prior to the enactment of the Australia Acts, they did not fall into the category of laws that were required to be reserved for the personal assent of the Sovereign.

21. The further objection as I understand it was that the enacting words at the commencement of the Road Traffic Act and Motor Vehicles Act did not say that they had been enacted in the Queen’s name. For the reasons previously given, I find that there is no substance in that contention.

22. A further argument raised by Mr Millington was that the photographic evidence relied on by the police and tendered as Exhibits P7(1) and P7(2) did not meet the requirements of s 59B of the Evidence Act 1929. The provisions to which I have already referred in the Motor Vehicles Act, and the evidentiary certificates produced under those provisions, provide an alternative means to provide proof. The certificates provide proof beyond reasonable doubt in the absence of proof to the contrary. In other words it was unnecessary for the prosecution to rely on the Evidence Act in this context.

23. There were two further complaints by Mr Millington which are closely linked. They relate to the operation of the National Measurement Act 1960 (Cth). The first of those arguments was that the relevant certificates tendered by the prosecution did not meet the criteria required under the National Measurement Act and were therefore inadmissible. The second argument in similar vein was that it had not been established by the prosecution that the camera devices had been calibrated and tested under the National Measurement Act. There was some reference made by Mr Millington to Breedon v Kongras[1]concerning the use of a measuring device in the context of a fisheries prosecution to determine the size of a lobster or crayfish.

    [1] (Unreported, Supreme Court of Western Australia, Owen J, 4 April 1996).

24. I note the submissions made by Mr Millington. However, I have read and considered the reasons of Peek J of this Court in the matter of Police v Young[2] to the effect that the National Measurement Act did not exclude the operation of the relevant State law and does not govern the operation of speed cameras in this State. I respectfully adopt the reasons published by Peek J in that matter and find that the present circumstances cannot be distinguished.

    [2] [2012] SASC 210.

25. A further argument from Mr Millington was that the prosecution had failed to produce as a witness the operator of the speed camera equipment. It was therefore suggested that the signed statement of the operator was inadmissible.  I note that this statement had been tendered by Mr Millington rather than by the police prosecutor, ie the statement was not part of the prosecution case. The prosecution did not need to call the operator as a witness because they were entitled to, and did, rely on the relevant certificates to establish what they needed to secure a conviction in the absence of proof to the contrary.

26. The same observation may be made in relation to the complaint by Mr Millington that it had not been proved by the prosecution that the speed camera equipment had been operated in accordance with the manufacturer’s operations manual.

27. A similar point which Mr Millington did not develop in argument but which was referred to in his written submission was to the effect that the magistrate failed to take into account that a parked car was visible in the photographs submitted as evidence. That was said to be contrary to the manufacturer’s operations manual.

28. The operations manual was not in evidence before the court. Submissions cannot be made, allegedly in reliance upon the operations manual, without putting that document into evidence. Even if it had gone into evidence, it would still have been necessary to establish that a failure to operate the device in accordance with that manual would lead to an inaccurate reading. In the absence of evidence to that effect, the evidentiary certificates tendered by the prosecution were sufficient to prove the relevant elements of the offence beyond reasonable doubt.

29. The next complaint by Mr Millington was that the prosecution failed to prove the identity of the driver of the vehicle on the occasion of the offence. As I pointed out during the course of submissions, the effect of the legislation to which I referred earlier, is that the owner of the vehicle is assumed as a matter of law to be the person responsible for the offence. In other words the driver is taken to be the offender but they have the opportunity by way of statutory declaration to identify another person as the driver. That did not occur.

30. A further submission was to the effect that by means which were not made clear the prohibition in the Oaths Act 1936 on the making of false statutory declarations would prevent the joint owner of a vehicle declaring who was the driver at the time of the alleged offence. I cannot see how the Oaths Act has any relevant connection with this issue. The Oaths Act prohibits the swearing of false declarations but it is entirely open to owners of a vehicle to declare in a statutory declaration that they were not the driver and identify who was the driver. If for some reason they cannot identify the actual driver at the time they will have not rebutted the presumption that the owner was the driver.

31. The final submission made by Mr Millington was that the International Covenant on Civil and Political Rights, which appears as a Schedule to the Australian Human Rights Commission Act 1986 (Cth), forbids any increase in penalty from that originally indicated on the expiation notice issued to the owner of the vehicle.

32. A difficulty with that argument is that the penalty was not in fact increased. The magistrate decided not to record a conviction against Mr Millington based on his previous good character and imposed a fine of $340, being the same amount as the expiation fee. However, because the matter went to trial, the magistrate ordered that Mr Millington pay court costs of $243. There were also prosecution costs of $100 (which is a very nominal amount) and the Victims of Crime Levy was $160 rather than the $60 payable under the expiation notice. That made a grand total of $843. Mr Millington submitted that this amounted to a penalty greater than the $400 specified in the expiation notice and is contrary to the International Covenant.

33. Even if the Covenant did prevail over relevant State law, Article 15 would not apply in the present circumstances. Mr Millington ultimately, in a practical sense at least, elected not to expiate the offence so the matter went to trial. However there was no increase in the applicable penalty between the time of the original offence and the time the trial was concluded. At the time the offence was committed, the maximum penalty provided for in reg 50 of the Road Traffic (Road Rules—Ancillary and Miscellaneous Provisions) Regulations 1999 for a speed limit offence was a fine of $5,000. At the time of trial the maximum penalty fixed under reg 67 of the Road Traffic (Road Rules—Ancillary and Miscellaneous Provisions) Regulations 2014 was also a fine of $5,000.

34. The penalties were the same. While orders for payment of costs were made and the Victims of Crime Levy was higher, that is not a situation where the purported prohibition in the International Covenant has any work to do even if it did prevail over State law as submitted by Mr Millington.

35. For these reasons I dismiss the appeal.