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 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.
The police officer gave evidence that as at late 2009, the appellant’s vehicle had not been inspected regarding the defect notice. The appellant’s evidence was that the defect notice was attached to the expiation notice and thus had no effect while the charge was disputed. The appellant did not know if the truck had been inspected.
The prosecution tendered a Certificate of Accuracy of Speedometer, with a test date of 8 August 2008, pursuant to the provisions of s 175(3)(b) of the Road Traffic Act 1961 (SA).
The appellant said that he knew he was not speeding because he was using cruise control and he relied on the tachometer to show how fast the truck was going. However, the appellant also admitted in cross examination that even if a vehicle is fitted with a speed limiting device, if it is travelling down a steep hill with a heavy load and no action is taken to use the service brakes or compression brake, it will run over the set speed. The Magistrate gave the appellant the opportunity to call further evidence as to the accuracy of the truck’s road speed governor, but he declined to do so.
A further argument of the appellant was that the police officer’s speed reading device did not comply with s 10 of the National Measurement Act 1960 (Cth). The Magistrate held that Act to be inapplicable. Accordingly the Magistrate found the charge proved.
Discussion
The appellant’s first contention was that the court comprised of a single magistrate had no jurisdiction to hear the matter. This complaint is without substance. A breach of the Australian Road Rules is a summary offence and therefore hearing by a magistrate was appropriate. The Australian Road Rules are adopted into South Australian law as a regulation under the Road Traffic Act 1961 (SA). The offence created by r 21(2) of the Australian Road Rules is a summary offence by virtue of s 5(2)(a) of the Summary Procedure Act 1921 (SA). The appropriate court to hear the complaint was therefore the Magistrates Court of South Australia.
The appellant complained that he was initially charged under the wrong rule, namely r 21(1) of the Australian Road Rules before an amendment was permitted after the trial commenced to enable the prosecution to allege the correct charge, which was a breach of r 21(2) of those rules. Rule 21(1) deals with breaches of the speed limit as indicated by a road sign, while r 21(2) deals with breaches of a speed limit applying to a vehicle with a maximum loaded mass greater than 12 tonnes. The appellant claims that as a result of the framing of the complaint originally contrary to r 21(1), he prepared his defence on the basis that he had no case to answer.
I do not consider that the circumstances in which the Magistrate permitted the prosecution to amend the complaint caused any prejudice to the appellant. The appellant was aware at all times of the gravamen of the charge against him, which was whether or not he did in fact exceed the speed limit applicable to the vehicle he was driving on 16 September 2008. In fact it was agreed by the parties that the speed limit applicable to his vehicle was 100 kilometres per hour. The issue at the trial was whether or not the appellant had exceeded that limit. The appellant knew this to be the case and accordingly I find that the amendment made under s 181 of the Summary Procedure Act 1921 (SA) did not cause any prejudice to the appellant and was properly made.
The appellant’s next complaint was that the speed device and the method of testing it by the police did not comply with s 10 of the National Measurement Act 1960 (Cth). Section 10 of that Act operates only when it is necessary to ascertain whether or not a measurement of a physical quantity has been made in the terms of Australian legal units of measurement. It does not in its terms set out a method of determining whether an Australian legal unit has been measured correctly in a particular instance. Nor does it displace the common law presumption of the accuracy of scientific instruments where the scientific instrument is notoriously accurate; see Jenkins v WMC Resources Ltd (1999) 21 WAR 393. Speedometers fall within the category of scientific instruments to which the presumption of accuracy applies; see Gray J in Pinkerton v Police [2006] SASC 341, Redman v Klun (1979) 20 SASR 343 at 344 – 345.
Here in proof of the charge the respondent submitted a certificate under the provisions of s 175(3)(b) of the Road Traffic Act 1961 (SA). The appellant did not present any credible proof to the contrary and accordingly that presumption was not displaced.
Nevertheless the appellant maintained the submission on appeal that the electronic management system of the truck he had driven on 16 September 2008 had been tested and that test showed the truck was incapable of reaching a speed of 111 kilometres per hour. The appellant on appeal filed an affidavit, over objection of the respondent, attaching a certificate dated 2 June 2010 from MTU Detroit Diesel which attests to the fact that on 2 June 2010 the speed limit on the truck had been programmed at 100 kilometres per hour. The respondent correctly pointed out that the certificate is not relevant to any issue on this appeal as the date on the certificate is almost two years after the date of the relevant offence. Moreover it does not address the speed capacity of the appellant’s vehicle on the date of the offence or the question whether the speed limiting device was operative on the date of the offence. In these circumstances the certificate has no evidentiary value.
The respondent pointed to the transcript of hearing at the trial where the Magistrate a number of times asked the appellant if he wished to call the mechanic who he said had tested the truck, or any other evidence to challenge the accuracy of the speedometer reading evidenced in the certificate produced by the police.
I am satisfied from my reading of the transcript that the Magistrate on more than one occasion made it very clear to the appellant that the best evidence rule applied at the trial. If the appellant wished to apply for an adjournment to allow time to gather and call further evidence as he intimated, then the Magistrate made it clear that he was willing and able to allow that adjournment.
Moreover, the appellant was also specifically given the opportunity to call evidence and to cross‑examine the police inspector who signed the test report giving rise to the certificate of accuracy.
In these circumstances, I find the appellant was given ample opportunity to call any relevant admissible evidence which might have displaced the presumption as a result of the tender of the certificate made under s 175(3)(b) of the Road Traffic Act 1961 (SA).
At the hearing of this appeal the appellant explained that he had his own pragmatic reasons for declining the offer of an adjournment. Nevertheless, I find it was the appellant’s own decision not to do so.
In my view the evidence before the Magistrate properly proved the charge. Section 175(3)(b) of the Road Traffic Act 1961 (SA) provides for certification that a specified speedometer has been tested on a specified day and shown to be accurate. The certification under that section proves the facts certified in the absence of proof to the contrary. There was no evidence presented to contradict that. Although the appellant cross‑examined the police officer who followed and timed the appellant travelling at 111 kilometres per hour, he did not apply to have the testing officer or the officer who signed the certificate of accuracy of the speedometer called.
Although there appears to be some discrepancy with regard to the evidence given by the police officer as to the time in which he actually followed the appellant’s vehicle, I do not consider that this discrepancy raises any sufficient doubt about the accuracy of the police officer’s reading of the speedometer which would cause me to reach a different conclusion to the Magistrate. The police officer said in evidence that he followed the vehicle for one kilometre or thereabouts, however he referred to a period of about six seconds, in which case, he could not have followed the vehicle for about one kilometre. Nevertheless, on the whole of the evidence it was open to the Magistrate to find that the police officer followed the appellant’s vehicle for a sufficient time and distance to accurately ascertain its speed. In my view the Magistrate was entitled to accept the evidence of the police officer in these circumstances.
In the end, in view of the decision the appellant chose to make at trial, there was no credible evidence to displace the presumption created by the tender of the certificate under s 175(3)(b) of the Road Traffic Act 1961 (SA). Nothing which the appellant has submitted on this appeal causes me to doubt the correctness of the Magistrate’s decision. No error of fact or law has been identified.
I therefore dismiss the appeal.