O'CALLAGHAN v Police

Case [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:

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O'CALLAGHAN v Police [2020] SASC 50
Case
[2020] SASC 50
Decision Date

CaseChat Overview and Summary

The appellant in this case, O’Callaghan, was appealing against a conviction for speeding, which was made after a retrial. The matter was heard by the Supreme Court of South Australia. The key issue before the court was whether the evidence provided by the appellant, which included calculations based on measurements taken at the scene or from photographs, was sufficient to disprove the accuracy of the photographic detection device used by the police to measure the appellant's speed.

The court examined the nature of expert evidence and its role in litigation. It noted that while expert evidence can be helpful, it is not indispensable. The court held that a defendant's calculations and measurements, even if not supported by expert evidence, could still be relevant and lawfully admissible if they effectively challenge the evidentiary presumptions created by the relevant legislation. The court emphasised that the tribunal of fact is free to accept or reject any evidence based on its intrinsic merit.

Ultimately, the court dismissed the appeal against conviction and sentence, finding that the penalty imposed by the second magistrate was not manifestly excessive. The court also awarded costs to the police, fixed at $500 in accordance with the Supplementary Supreme Court Civil Rules 2014 (SA).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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).

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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