MORAN v Police - [2010] SASC 269

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MORAN v POLICE
[2010] SASC 269
Judgment of The Honourable Justice Kelly
27 August 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
Appeal against decision of Magistrate - appellant convicted at first instance for travelling at a speed of 111 kilometres per hour when the truck he was driving was subject to a limit of 100 kilometres per hour pursuant to the Australian Road Rules - appellant argued the truck had a road speed governor fitted and was incapable of reaching that speed - where police produced certificate of accuracy of speedometer used to measure speed - whether speedometer complied with s 10 of the National Measurement Act 1960 (Cth) - where appellant did not call police officer who tested speedometer - where appellant produced subsequent certificate recognising the road speed governor.
Held: appeal dismissed - certificate of accuracy of speedometer raised presumption of accuracy under s 175(3)(b) of the Road Traffic Act 1961 (SA) - speedometer notoriously accurate - certificate produced by appellant of no evidentiary value - no evidence provided to displace presumption.

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - JURISDICTION, POWERS AND DUTIES
Whether Magistrates Court had jurisdiction to determine the matter.
Held: Magistrates Court had jurisdiction - offence was a summary offence.

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - OTHER CASES OF AMENDMENT
Whether Magistrate erred in allowing amendment to complaint to change the rule under which the appellant was charged from r 21(1) to r 21(2) of the Australian Road Rules.
Held: amendment properly made - amendment caused no prejudice - appellant knew the gravamen of the charge against him, namely that he had exceeded the relevant speed limit of 100 kilometres per hour.
National Measurement Act 1960 (Cth) s 10; Australian Road Rules r 21; Australian Design Rule 65/00 - Maximum Road Speed Limiting for Heavy Goods Vehicles and Heavy Omnibuses r 65; Motor Vehicle Standards Act 1989 (Cth) s 7(1); Road Traffic Act 1961 (SA) s 175(3)(b); Summary Procedure Act 1921 (SA) s 5(2)(a) and s 181, referred to.
Jenkins v WMC Resources Ltd (1999) 21 WAR 393; Pinkerton v Police [2006] SASC 341; Redman v Klun (1979) 20 SASR 343, considered.

MORAN v POLICE
[2010] SASC 269
Magistrates Appeal: Criminal
KELLY J:
Introduction

The appellant appeals against a conviction for speeding recorded in the Murray Bridge Magistrates Court on 2 March 2010. The appellant was fined the sum of $202 and ordered to pay prosecution costs of the trial fixed at $525.
The appellant, who was unrepresented both at trial and on appeal, appeals on a number of grounds. They include a challenge to the jurisdiction of the Magistrates Court to hear the matter, a complaint about the prosecution’s amendment of the complaint against him, a complaint that the speeding device used by the police to measure the speed…

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 MORAN v Police

Details

AGLC: MORAN v Police [2010] SASC 269
Case: [2010] SASC 269
Decision Date: 27 August 2010

CaseChat Overview and Summary

In the matter of MORAN v Police, the appellant appealed against his conviction for speeding by a magistrate, arguing that his truck was incapable of reaching the alleged speed due to a road speed governor. The Supreme Court of South Australia considered the appeal and dismissed it. The appellant, unrepresented, raised several grounds for appeal, including challenges to the jurisdiction of the Magistrates Court, the amendment of the prosecution’s complaint, the accuracy of the speedometer used, the lack of opportunity to cross-examine the police inspector, and the sufficiency of the prosecution's evidence. The central legal issue was whether the prosecution proved beyond reasonable doubt that the appellant was driving at 111 kilometres per hour when the speed limit was 100 kilometres per hour. The court held that the certificate of accuracy for the speedometer raised a presumption of accuracy under the Road Traffic Act 1961 (SA). The appellant did not call the police officer who tested the speedometer or provide evidence to challenge the presumption of accuracy. The court found that the certificate produced by the appellant, which recognised the road speed governor, was of no evidentiary value in displacing the presumption. Consequently, the appeal was dismissed.

The court reasoned that the certificate of accuracy for the speedometer constituted a prima facie proof of accuracy under section 175(3)(b) of the Road Traffic Act 1961 (SA). The appellant did not provide any evidence to counter the presumption of accuracy raised by the certificate. The appellant's argument that the speedometer was not accurate due to the presence of a road speed governor was not supported by evidence. The court determined that the certificate produced by the appellant did not challenge the presumption of accuracy and therefore had no evidentiary value. The absence of cross-examination of the police officer who tested the speedometer did not prejudice the appellant, as there was no evidence presented to counter the presumption of accuracy. The court concluded that the prosecution had sufficiently proven its case beyond reasonable doubt.

Orders

Orders of the court

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Background

Background to the litigation

The appellant, who was unrepresented both at trial and on appeal, appeals on a number of grounds. They include a challenge to the jurisdiction of the Magistrates Court to hear the matter, a complaint about the prosecution’s amendment of the complaint against him, a complaint that the speeding device used by the police to measure the speed of the appellant’s vehicle did not comply with s 10 of the National Measurement Act 1960 (Cth), a complaint that the appellant was not given a chance to cross‑examine the police inspector who tested the vehicle’s speedometer, and a generalised complaint that the prosecution did not prove its case beyond reasonable doubt. Background At about 9:20 am on 16 September 2008, the appellant was driving a prime mover, which belonged to his cousin’s son but will be referred to as the appellant’s vehicle, on the Princes Highway near Tailem Bend. The appellant’s vehicle’s maximum loaded mass was in excess of 12 tonnes and therefore it was subject to a speed limit of 100 kilometres per hour: r 21(2) Australian Road Rules. According to r 65.5.2 of the Australian Design Rule 65/00 – Maximum Road Speed Limiting for Heavy Goods Vehicles and Heavy Omnibuses, made under subsection 7(1) of the Motor Vehicle Standards Act 1989 (Cth), the appellant’s vehicle had to be fitted with a road speed governor which limited its speed to 100 kilometres per hour. The appellant’s vehicle was fitted with a speed limiting device, but there is a dispute as to whether or not it was functioning correctly. A police officer on highway patrol was at the same time travelling in an easterly direction from Murray Bridge towards Tailem Bend, near Monteith. The officer detected the appellant’s truck and conducted a “follow and time”. The appellant was aware of the police car following him. The prosecution alleges that the appellant was travelling at 111 kilometres per hour. Upon being pulled over, the appellant immediately denied that he was speeding. The police officer issued the appellant with an expiation notice for speeding and a vehicle defect notice under Australian Design Rule 65, for not having a compliant road speed governor. That vehicle defect notice states that the vehicle should be checked for a speed limiter override, which is a device sometimes used to allow vehicles to travel faster than the prescribed speed. At the Magistrates Court hearing, the prosecution led the evidence of the police officer who issued the initial expiation notice and the appellant himself gave evidence on affirmation. The police officer gave evidence that upon detecting the appellant’s vehicle, he used the cruise control of his police vehicle to set a speed of 110 kilometres per hour. He did not catch up to the truck. The officer then pulled alongside of the truck and set the speed of the police vehicle to 111 kilometres per hour. There is some confusion as to how long it was alleged the vehicles travelled abreast at this speed. The police officer gave evidence that the two vehicles travelled abreast at that speed for a distance of about one kilometre before he decided to pull over the appellant’s vehicle. However, the police officer also said that he followed alongside the truck for “about six seconds at the least”. Six seconds at 111 kilometres per hour would only take the vehicles a distance of 185 metres.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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