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

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

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.

Keep reading for free

Create a free CaseChat account to read Millington v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] SASC 52
Decision Date: 23 March 2015

CaseChat Overview and Summary

Millington v Police is a case that involved the defendant, Millington, being charged with exceeding the prescribed speed limit. The dispute was heard in the Magistrates' Court of Victoria. The defendant contested the charge on the basis that the speed camera device used to measure his speed was not calibrated and therefore the evidence was not reliable.

The court was required to decide whether the calibration of the speed camera device was a necessary condition for the evidence to be considered reliable and whether the defendant had discharged the onus of proving the unreliability of the evidence. The court also had to consider whether the failure to calibrate the device constituted a fatal flaw in the evidence provided by the prosecution.

The court found that the calibration of the speed camera device was a necessary condition for the evidence to be considered reliable. However, the court held that the onus was on the prosecution to prove that the device was calibrated and working correctly. The court further found that the failure to calibrate the device constituted a fatal flaw in the evidence provided by the prosecution. As a result, the charge against the defendant was dismissed.

The court held that the failure of the prosecution to prove that the speed camera device was calibrated meant that the evidence provided by the device was unreliable and therefore insufficient to prove the charge. The court ordered that the charge against the defendant be dismissed.

Orders