O'CALLAGHAN v Police - [2020] SASC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
O'CALLAGHAN v POLICE
[2020] SASC 50
Judgment of The Honourable Justice Livesey
9 April 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
Appeal against conviction and sentence.
Following a trial in the Magistrates Court, the appellant was found guilty of contravening s 79B of the Road Traffic Act 1961 (SA) and r 20 of the Australian Road Rules (SA). The prosecution case was that on 14 November 2016 the appellant was the owner of a vehicle which was travelling at 59 kph, in excess of the 50 kph speed limit on King William Street, North Adelaide.
The Magistrate held that in the absence of expert evidence, he was not satisfied that the appellant was not travelling at the alleged speed or that the photographic detection device was not accurate. The Magistrate recorded a conviction and imposed a fine of $166.
On appeal the appellant contended that the Magistrate erred in finding that there needed to be expert evidence. He also complained that the Magistrate was biased in preferring the police evidence to the measurements and calculations that he provided, and by imposing a penalty that was greater than that which the appellant received following an earlier trial.
Held, dismissing the appeal against conviction and sentence:
1. Whilst the Magistrate erred in concluding that the appellant necessarily required expert evidence to provide "proof to the contrary", no miscarriage of justice occurred.
2. There was no actual or ostensible bias and the sentence imposed by the Magistrate was not manifestly excessive.
Magistrates Court Act 1991 (SA), s 42(1), s 42(5); Road Traffic Act 1961 (SA) s 79B; Supreme Court Civil Rules 2006 (SA), r 286(1), referred to.
CH2M Hill Australia Pty Ltd v New South Wales [2012] NSWSC 963; Clark v Ryan (1960) 103 CLR 486; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; Elliott v Police (2009) 54 MVR 2; Folkes v Chadd (1782) 3 Dougl 157; 99 ER 589, 590; Fox v Percy (2003) 214 CLR 118; Gazepis v Police (1997) 70 SASR 121; House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601; Lee v Lee (2019) 93 ALJR 993; Martelli v Police (2007) 46 MVR 568; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; O’Callaghan v Police (2019) 133 SASR 147; Oneflare Pty Ltd v Chernih [2016] NSWSC 1271; Police v Butcher (2014) 119 SASR 509; Police v Cadd (1997) 69 SASR 150; Police v Dinovitser [2016] SASC 77; Police v Young (2012) 114 SASR 567 ; R v Taylor [2014] SASCFC 112; Sharman v Police [2015] SASC 159; Such v Police (2011) 57 MVR 313; Police v Wyatt 2016) 74 MVR 368, considered.

O'CALLAGHAN v POLICE
[2020] SASC 50
Magistrates Appeal: Criminal
Livesey J:
Introduction

This is an appeal against conviction and sentence.
Following a trial in the Magistrates Court, the appellant was found guilty of contravening s 79B of the Road Traffic Act 1961 (SA) (the Act) and r 20 of the Australian Road Rules (SA). The prosecution case was that on 14 November 2016 the appellant was the owner of a vehicle which was travelling at 59 kph, in excess of the 50 kph speed limit on King William Street, North Adelaide.
The Magistrate recorded a conviction and imposed a fine of $166, a victims of crime levy of $160 and a prosecution fee of $150.
Prosecution case
As is usual, the prosecution case depended upon a combination of photographic and documentary evidence, supported by various statutory presumptions designed to aid proof.[1] For example, pursuant to s 175(3)(ba) of the Act a certificate in this case comprised proof, absent proof to the contrary, that the relevant traffic speed analyser (the Redflex device) was tested and shown to be accurate to the extent indicated in the certificate for a period which included the day of the appellant’s alleged offending (exhibit P5).
[1] In Police v Young (2012) 114 SASR 567 Peek J exhaustively reviewed the aids to proof contained in the Road Traffic Act1961 (SA) and examined at [29] the permissible scope of a certificate pursuant to s 175(3)(ba) of the Act.
The admissibility of the certificates that evidenced the relevant statutory presumptions was not challenged at trial or on appeal.[2] Ultimately, what was proved by those certificates was not challenged either.[3] So, on appeal, the appellant explicitly accepted that the prosecution case proved that his motorcycle[4] was travelling at 59 kph in a 50 kph zone on King William Street, North Adelaide near the intersection of King William Road and Sir Edwin Smith Avenue, as alleged.
[2] It was not suggested that they were “bad” on their “face”, cf Police v Young (2012) 114 SASR 567, [35] (Peek J). Nor was there any suggestion that a relevant discretion arose and should have been exercised: Martelli v Police (2007) 46 MVR 568; Elliott v Police (2009) 54 MVR 2; Police v Butcher (2014) 119 SASR 509, [59]-[60] (Stanley J).
[3] With the result that it is not necessary to consider what these certificates under the Act are capable of proving, and how that may be challenged, see for example cases such as Such v Police (2011) 57 MVR 313, [17] (Vanstone J); Police v Butcher (2014) 119 SASR 509, [66] (Stanley J); Police v Wyatt (2016) 74 MVR 368, [20] (Kelly J); Police v Dinovitser [2016] SASC 77.
[4] Ownership was proved by the tender of an extract from an entry in the Register of Motor Vehicles under s 140 of the Motor Vehicles Act1959 (SA) (exhibit P1).
Proof to the contrary
Instead, the appellant sought to challenge the prosecution case with a combination of measurements later made at the scene as well as calculations based on various photographs, designed to show that his motorcycle could not have been traveling at 59 kph as alleged. Accordingly, the appellant came under the persuasive burden of establishing “proof to the contrary” on the balance of probabilities, so as to displace the statutory presumptions.[5]
[5] Police v Young (2012) 114 SASR 567, [47]-[52] (Peek J).
Whilst it has been said that “proof to the contrary” requires that a defendant lead a positive case, and it is not sufficient for the defendant to challenge the Police testing regime by cross-examination,[6] that was not an issue argued before me and it is not necessary to make any finding about whether the eliciting of admissible evidence under cross-examination cannot ever comprise “proof to the contrary” under the Act.
[6] Police v Wyatt (2016) 74 MVR 368, [20] (Kelly J).
Two trials
This is not the first time this matter has been litigated. Following an earlier trial, a Judge of this Court allowed an appeal because a Magistrate had failed to properly advise the defendant about the legal effect of consenting to the tender of an exhibit as a business record.[7]
[7] O’Callaghan v Police (2019) 133 SASR 147, [37] (Lovell J).
At the retrial which resulted in the conviction the subject of this appeal, an affidavit was adduced which exhibited photographs and schematic diagrams of the location, and marking the lanes, including the third lane in which the appellant’s motorcycle was depicted. The appellant was given an opportunity under r 35 of the Magistrates Court Rules 1992 (SA) to object to that evidence or require the deponent for cross-examination. The appellant did not oppose the tender of the affidavit and its exhibits.[8]
[8] The affidavit that became exhibit P8 was given to the appellant on the first day of trial (8 May 2019). The trial was adjourned so that the appellant could consider the exhibit and, when the trial resumed on 12 June 2019, the appellant did not oppose or object to tender (T18).
When seeking to furnish “proof to the contrary” the appellant tendered various documents and entered the witness box to explain his case to the Magistrate on oath. The Magistrate warned the appellant:[9]
You’ll need to lead me by the hand through your maths Mr O’Callaghan. It’s your case. I’ll let you do it how you want, but you need to do it in a way that I’m going to understand.
[9] T28.6-9.
The appellant described photographing the relevant intersection after it had been “pulled up and re-laid”.[10] He then supplied written submissions in which there were a number of calculations. He gave no evidence of making any measurements at the scene, although those measurements underpinned the calculations mentioned in his written submissions.
[10] T23.36-37.
The Magistrate’s reasons: expert evidence
In his reasons the Magistrate referred to the prosecution evidence, the evidentiary presumptions and the appellant’s evidence and calculations before concluding:[11]
None of Mr O’Callaghan’s calculations were [sic] supported by expert evidence. The calculations concerning the placement of the induction loops in the road surface and in the intersection and the dimensions of the induction loops are based entirely on measurements taken at the intersection by Mr O’Callaghan or from estimates based on photographs of the intersection. Because of the absence of expert evidence Mr O’Callaghan has not satisfied me he was not travelling at the alleged speed and he has failed to prove the photographic detection device was not accurate.
[11] Judgment of Magistrate Fahey (12 June 2019), [7].
With all due respect to the learned Magistrate, I doubt whether it is essential that a defendant’s measurements and calculations be supported by expert evidence. Likewise, because calculations are based on measurements taken by a defendant at a relevant scene, or from photographs, I doubt that necessarily means they cannot be accepted. A defendant is free to attempt to undermine evidentiary presumptions created by an Act in whatever way is both relevant and lawfully open to that defendant. In some cases, this could be undertaken by a combination of eliciting admissible material in cross-examination and by adducing relevant documentary or other evidence.
Whilst in some cases, perhaps many, the use of engineering or other expert evidence might assist the process, I should not want it thought that it is essential that there be expert evidence. Expert opinion evidence is like any other evidence: the tribunal fact is free to accept it or to reject it according to its intrinsic merit.[12]
[12] CH2M Hill Australia Pty Ltd v New South Wales [2012] NSWSC 963, [172] (McDougall J); Oneflare Pty Ltd v Chernih [2016] NSWSC 1271, [28] (McDougall J).
Whilst the introduction of expert opinion evidence has become progressively prevalent since Lord Mansfield first permitted evidence to be taken from “experts” in a patent case,[13] and then in a case involving the construction of a sandbank and its effect on a harbour,[14] it is far from indispensable to the conduct of modern litigation, and there have been doubts in recent times about its reliability and utility.[15]
[13] Liardet v Johnson, 18 July 1778, featuring experienced and eminent architects, plasterers and builders giving evidence of both novelty and utility regarding a form of stucco developed by a Mr Liardet, see Norman S Poser, Lord Mansfield: Justice in the Age of Reason (McGill-Queen's University Press, 2013) 330-332.
[14] Folkes v Chadd (1782) 3 Dougl 157; 99 ER 589, 590 (Lord Mansfield): “in matters of science, the reasonings of men of science can only be answered by men of science. … I cannot believe that where the question is, whether a defect arises from a natural or an artificial cause, the opinions of men of science are not to be received”.
[15] Fox v Percy (2003) 214 CLR 118, [149]-[151] (Callanan J); Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, [55]-[59] (Heydon J).
In a case such as this it may be accepted that, if the appellant wished to challenge the evidence produced by the Redflex device which was relied on by the Police, he might well have been assisted by calling evidence from an engineer or another expert familiar with its operation and limitations. The “primary function” of expert opinion evidence” is “to explain the application of matters of scientific knowledge to a particular question which is submitted to a court for decision”.[16] Nonetheless, it would have been essential to show that the issue on which the expert was being called to express an opinion was properly a matter for expert opinion evidence in an area in which that expert possessed expertise,[17] and that the factual basis for the expert opinion was satisfactorily proved on the balance of probabilities.[18]
[16] Sir Owen Dixon, Jesting Pilate (William S Hein & Co Inc, 2nd ed, 1997), 25.
[17] Clark v Ryan (1960) 103 CLR 486, 491-492 (Dixon CJ).
[18] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, [66] (Heydon J), "the proof of assumption rule" .
As the absence of expert evidence was the key reason assigned by the Magistrate for the appellant’s failure to disprove the relevant evidentiary presumptions, it follows that I am respectfully of the opinion that the Magistrate was in error.[19] However, an appeal court is not obliged, and ought not, allow an appeal unless some miscarriage of justice is demonstrated.[20] Because this is an appeal by way of rehearing,[21] this Court is required to reconsider the materials before the trial court and “make up its own mind”, albeit without disregarding the judgment under appeal.[22]
[19] House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).
[20] Gazepis v Police (1997) 70 SASR 121.
[21] Magistrates Court Act 1991 (SA), s 42(1); Supreme Court Civil Rules 2006 (SA), r 286(1). See generally, Police v Cadd (1997) 69 SASR 150, 189 (Lander J); Sharman v Police [2015] SASC 159, [15] (Vanstone J).
[22] R v Taylor [2014] SASCFC 112, [18] (Stanley J, with whom Kelly and Peek JJ agreed) regarding rehearings under s 42(5) of the Magistrates Court Act 1991 (SA). See also Fox v Percy (2003) 214 CLR 118; Lee v Lee (2019) 93 ALJR 993.
That requires that I review the evidence led at trial and make up my own mind about whether it proved the prosecution case beyond reasonable doubt.[23] This approach also requires that I have regard to the appellant’s calculations and estimates to see whether they were capable of comprising, and in fact did comprise, “proof to the contrary”. I do not lose sight of the fact that, ultimately, the question remains whether guilt was proved beyond reasonable doubt.
[23] As mentioned earlier in these reasons, on appeal there was no challenge to that material or its effect.
Uncertainty and inaccuracy
It seems to me that the real issues necessarily troubling the Magistrate were twofold, and these were only reinforced on appeal.
The first issue was that the appellant referred to measurements and calculations made by him which he implicitly endeavoured to relate to the intersection as it was at the time of the alleged offending. The pulling up and re-laying of the intersection after the alleged offending necessarily left open questions about whether what the appellant had measured could properly relate to the circumstances as they existed at the time of the alleged offending. The appellant did not ever undertake the task of comprehensively proving that all features of the intersection measured by him had remained exactly as they were at the time of the alleged offending, and before the bitumen surface was re-laid.
It may be doubted whether this could be done on appellant’s own evidence. For example, although the appellant said that only the bitumen near the stop line and under which the “induction loops”[24] were positioned appeared to him “new”, his measurements (at least as he explained them to me on the appeal) depended on the precise positions of the induction loops. However, his own evidence was that those loops had been moved.[25] Absent survey or other evidence the appellant could not show that what he later measured was in the same positions at the time of his earlier, alleged offending.
[24] In his evidence before the Magistrate the appellant, over objection, explained that these loops located under the bitumen operated like an “oversized metal detector” (T34 and exhibits D6 and D7). Exhibit P8 showed that there were two in each lane, depicted in the schematic drawings as rectangular in shape, 2.2 m across the lane and 1m down the lane. In each lane, the first loop was a few centimetres past the stop line and the second loop 1.5 m ahead of the first. Although there was no clear evidence at trial, it appeared that the movement of a vehicle over the top of both loops triggered the operation of a speed detector and camera, enabling measurement of the speed and causing photographs to be taken of the vehicle as it moved through the intersection.
[25] Exhibit D3 and T24.11-24.12: “the induction loops were pulled up”.
The second issue was that the appellant’s measurements were not proved to be, and appeared to be very far from, accurate. Before the Magistrate the appellant attempted to correlate measurements made at the scene with measurements and calculations made on Google maps. No real attempt was made to show that resulting calculations and conclusions were accurate. For example, exhibit D3 purported to reveal distances and speeds using photocopied and marked Google maps which were difficult to read but which appeared to suggest that the appellant was travelling at 50 kph and not 59 kph. How these were prepared, and whether they were accurate, was never explained in evidence, let alone proved. These exhibits were not produced by instruments of a kind which, as a matter of common knowledge, are likely to be accurate and in working order.[26]
[26] For example, a speedometer, Skalde v Evans [1966] SASR 176. See also J D Heydon, Cross on Evidence (LexisNexis, 12^th ed, 2020) 33, [1180].
Accordingly, and whatever the explanation proffered by the appellant about his measurements, calculations and estimates, there necessarily remained questions about their utility and accuracy. Whilst an explanation did not need to be given by an expert (though in many cases that might prove useful), ultimately, it needed to be given in a manner that was both comprehensible to the trial court and probative of the relevant proposition:[27] that there was proof to the contrary of the speed measured by a device that was certified and presumed by the Act to be accurate.
[27] Sir Owen Dixon, Jesting Pilate (William S Hein & Co Inc, 2^nd ed, 1997) 25: “intelligence is not invariably absent from the Bar, nor receptiveness from the Bench … when receptiveness is found in the judge, it seldom amounts to a facile and undiscriminating acceptance of the uncomprehended”.
Where the measurements were made on a road surface different to that which existed at the time of the alleged offending, and where the calculations were not proved to be accurate, the Magistrate was, I think, entitled to find that there was no “proof to the contrary” by the appellant.
On appeal, the appellant emphasised that travel at 59 kph equates to travel at just under 16.4 m per second. With this in mind, he tried to show that the photographs in evidence proved that his motorcycle must have travelled less than 16.4 m in one second.
The appellant started with the distance shown to have been travelled by his motorcycle in the photographs in exhibit P7 marked “1 SA” (first photograph) and “1 SB” (second photograph), apparently taken one second apart, and soon after movement over the loops in the roadway had activated the Redflex speed detection device and camera. These photographs, the appellant said, showed his motorcycle to have moved just past the stop line and then, one second later, some distance further into the intersection.

The appellant did not measure the positions of his motorcycle in those photographs so as to prove that his motorcycle had not moved 16.4 m across the roadway in one second. Whilst that might have been difficult, its relevance would have been clear.
The appellant’s approach on appeal was rather more subtle. The appellant contended that, because the rear wheel of his motorcycle as depicted in the second photograph was on, or nearly on, a broken, curved turn lane marking, and because he later measured the distance from that marking back to the start of the second loop at 13.4 m, he must have been travelling at less than 16.4 m/s.[28]
[28] Appeal T33-34.
The appellant explained that the relevance of this measurement was that the detection device was not triggered until his motorcycle moved over the second loop. The appellant appeared to be contending that because the first photograph was taken when (or very soon after) the detection device was triggered by movement over the second loop, and the second photograph was taken one second later, that meant that the second photograph depicted the position of his motorcycle one second (or so) after it had first triggered the second loop. Because the distance moved in that one second (or so) was only 13.4 m (and not 16.4 m) it followed that his motorcycle could not have been travelling at 59 kph.
Whilst all of that was logical and might possibly be so, there was actually no evidence before the Magistrate of any of those facts. At trial, the appellant had not introduced the fact of his 13.4 m measurement as part of his evidence, nor did he give evidence that he was an expert in or even familiar with the operation of the induction loops. As mentioned, the 13.4 m measurement was only contained in a written submission, and as best I can tell, it was never clearly or lucidly explained to the Magistrate at trial.[29]
[29] Although the appellant applied to tender publications concerning the loops, MFI D6 and MFI D7, neither contained an explanation of the matters on which the appellant’s case depended. In any event, and as the Police explained on appeal, any comparative measurement needed to be made from the same point on the motorcycle. If the rear wheel was selected in the second photograph, then one needed to measure back to the rear wheel one second before. As the motorcycle was apparently 1.4 m in length, one needed to add 1.4 m back to the rear wheel at the moment the front wheel triggered the second loop, giving an overall distance of 14.8 m. For reasons that are a little unclear, the Police also submitted that it was necessary to add 2.5 m, which was the distance between the start of the first loop and the start of the second loop, to arrive at an overall distance of 16.3 m, close to 16.4 m. Ultimately, it is not necessary to conclusively address this submission because the utility of the 13.4 m measurement was never proved.
However, even allowing for the fact that the appellant was unrepresented, and ignoring momentarily his failure to lead admissible evidence, it seems to me that there remained the fundamental difficulty to which I have already referred.
Even if one accepted (without evidence) that the detection device was not triggered until the front wheel of the motorcycle moved over the start of the second loop, there is no reason to be confident that in the second photograph the rear wheel was in fact only 13.4 m from the start of the second loop on 14 November 2016. As mentioned, no measurement was made using the photographs taken on the day (exhibit P7) and even if one was prepared to assume (without direct evidence) that the curved broken turn line was not affected by the roadworks, the appellant said that the induction loops were moved during the roadworks.
In short, that meant that what was apparently measured at 13.4 m at the time of the appellant’s attendance sometime after he received his expiation notice was not shown to be the same distance before the roadworks were undertaken and before the induction loops were moved and replaced.
In all of these circumstances, I am not satisfied that the appellant established “proof to the contrary”. There being no challenge to the prosecution evidence, or to the conclusions properly drawn from it, I am satisfied that his guilt was proved beyond reasonable doubt.
Allegations of bias
Finally, I should address the balance of the appellant’s complaints in his Notice of Appeal dated 6 November 2019. The following are the grounds of appeal:
(a)    magistrate demonstrated judicial bias by ignoring measurements in police provided schematics that match appellant’s measurements.
(b)    magistrate decided appellant super emposed lines in photography provided by appellant that mark where induction loops were to be installed (came to his own conclusion).
(c)    magistrate further demonstrates questionable behaviour by increasing penalty impossed [sic] at first trial.
(d)    magistrate further demonstrated bias by deeming any evidence from the appellant wasn’t acceptable as it wasn’t from an expert.
(e)    [b]y requiring an expert for mathematics done by primary and high school children (measurements and simple conversions between meters [sic] per second and kmh) shows a further prejudice making the court and justice system only elligible [sic] to those with money no matter how inoccent [sic] you are creating a socio-economic injustice bias against those without the money to fight like the working stigma I am presently battling through.
(f)     police evidence (schematics) provided and matched 3 of my measurements demonstrating credibility and reliability in my evidence therefore proving beyond a reasonable a doubt the equipment does not function properly.
(g)    by increasing the penalty in the first trial further supports the questions around the magistrate’s impartiality and again seems to be another dig at those of us less financially blessed.
I have already addressed the complaints about the finding that there needed to be expert evidence. That was an error but there has been no miscarriage of justice.
It may be seen that the appellant otherwise generally complains about what is described as “judicial bias” and “questionable behaviour” in two senses. The first concerns the manner by which the Magistrate addressed the task of fact- finding, preferring the police evidence to the measurements and calculations supplied by the appellant. The second concerns the decision to impose a penalty larger than that imposed by the Magistrate who heard the first trial.
Having considered the evidence and the transcript of the trial, there appears to me nothing in the point about judicial bias.
It may be doubted whether there is any evidence in this case of actual bias. The Magistrate was at pains to permit the appellant to adduce whatever evidence he wanted, and to hear his submissions. The fact was that the appellant adduced limited admissible evidence and his submissions and measurements were difficult to follow and understand.
Rather, the complaint appears to be one of ostensible or apprehended bias, perhaps by way of prejudgment:[30]
The state of mind described as bias in the form of prejudgement is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
[30] Minister for Immigration and Multicultural Affairsv Jia Legeng (2001) 205 CLR 507, [72] (Gleeson CJ and Gummow J), and also [69] (Gleeson CJ and Gummow J), [127] (Kirby J).
In my view, there is no hint of prejudgment, simply a preference for a case that was backed by statutory presumptions over a case that was imprecise, fragmented and difficult to understand. The appellant has not distinctly identified or established any other requisite bias. [31]
[31] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [23]-[24] (Gleeson CJ, McHugh, Gummow and Hayne JJ), such as interest, conduct, association or extraneous information.
Sentence
As for the complaint about the increase in penalty, it is well recognised that “absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence”.[32] A mere difference between Magistrates (whether it be an increase or a decrease) within the permissible range does not, of itself, indicate bias.
[32] Kentwell v The Queen (2014) 252 CLR 601, [35] (French CJ, Hayne, Bell and Keane JJ).
In this case, the Magistrate following the first trial imposed a fine of $10, a victims of crime levy of $160 and prosecution costs of $100. Following the retrial the second Magistrate recorded a conviction, imposed a higher fine ($166), a victims of crime levy of $160 and higher prosecution costs ($150). In my opinion, it cannot be said that the penalty imposed by the second Magistrate was manifestly excessive, and the mere fact of an increase within the permissible range does not show bias.
Conclusion
For these reasons, I dismiss the appeal against conviction and sentence.
Having heard from the parties on costs, and in accordance with r 238 of the Supplementary Supreme Court Civil Rules 2014 (SA), the Police are entitled to costs, fixed at $500.