O'CALLAGHAN v Police - [2019] SASC 14

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
O'CALLAGHAN v POLICE
[2019] SASC 14
Judgment of The Honourable Justice Lovell
19 February 2019
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - PRESUMPTIONS - AS TO SCIENTIFIC INSTRUMENTS
EVIDENCE - PROOF - FACILITATING PROOF - MATTERS RELATING TO MACHINES, PROCESSES AND OTHER DEVICES
The appellant was charged and found guilty of driving a motor vehicle in excess of the speed limit contrary to rule 20 of the Australian Road Rules and section 79BA of the Road Traffic Act 1961 (SA).
The prosecution evidence at trial was insufficient to prove a particular element of the charge. The appellant agreed to the tender of a document, as a business record, of the police department.
Extent of the obligation of a Magistrate to advise an unrepresented accused.
Held per Lovell J:
1. The Magistrate erred in failing to advise appropriately as to the effect of tendering by consent a particular exhibit.
Appeal allowed.
The verdict and penalty imposed by the Magistrate is set aside and the matter remitted to the Magistrates Court for a retrial before a different Magistrate.
Road Traffic Act 1961 (SA) s 79B(1), (2) and (10); Evidence Act (SA) s 53, referred to.
Cooling v Steel (1971) 2 SASR 249; MacPherson v The Queen (1981) 147 CLR 512; Ardalich v Police [2007] SASC 196, considered.

O'CALLAGHAN v POLICE
[2019] SASC 14
Magistrates Appeal: Criminal
LOVELL J:
Overview

At his trial in the Magistrates Court, the appellant was found guilty of the offence of speeding. The Magistrate found that the appellant had driven his motorcycle through the intersection of King William Road and Sir Edwin Smith Avenue at a speed of 59 kilometres an hour; the speed limit was 50 kilometres per hour.
To prove its case, the prosecution relied on the evidence obtained from a photographic detection device installed at the intersection. The prosecution tendered and relied upon a number of “evidentiary” certificates. The appellant gave evidence based on calculations he had made from photographs of the intersection tendered by the prosecution. He contended that the photographic detection device was inaccurate.
The Magistrate rejected the appellant’s calculations and evidence. He found that the presumption of accuracy of the photographic detection device prescribed by s 79B(10)(b) of the Road Traffic Act 1961 (SA) (‘RTA’) had not been rebutted. Accordingly, the Magistrate found the charges proven beyond reasonable doubt and convicted the appellant; he imposed a fine of $270. The appellant appeals against that conviction.
Grounds of appeal
The Notice of Appeal was not clear as to the precise grounds of appeal. The Notice complained generally about a number of matters under the heading “Orders Complained of” in addition to the specific grounds of appeal. Helpfully the respondent suggested the following matters should be considered as grounds of appeal. I have adopted that submission and treated the grounds of appeal as follows:
1.The prosecution case was based on presumptions;
2.The Magistrate and prosecution based the case on documents without prosecution having to call authors of documents to verify the accuracy and validity of the documents while I was refused the right to produce documents unless I was able to call the authors of the documents yet multiple documents all raised the same point about reliability of the equipment used (university paper & manufacturer documents of difference manufacturers of the type of equipment);
3.The Magistrate used details that were completely opposed to the prosecution and my position as prosecution did not contest or disagree during questioning of me that I was not speeding at picture IP and ISB;
4.The decision should have been not guilty as it couldn’t be honestly established beyond reasonable doubt;
5.The Magistrate operated in a judicially biased way by applying inappropriate weight to the police presumptive evidence;
6.The Magistrate has made presumptions that do not match factual evidence;
7.The Magistrate used my calculation figures to then make bias presumptions that clearly don’t match the facts the Magistrate tried to use;
8.The Magistrate inappropriately applied incorrect weight on prosecution evidence then made up his own measurement to justify the judicially bias decision; and
9.Bias between parties – prosecution were bound by no rules while I was refused a fair trial resulting in a wrongful decision.
During the course of submissions, a further issue arose and the appellant was given leave to amend the grounds of appeal by adding a further ground as follows:
1.The Magistrate failed to adequately advise the appellant of the legal consequence of the prosecution tendering a document as a business record.
The respondents conceded the appeal on the basis of the amended ground of appeal. It is therefore not necessary for me to decide the other grounds of appeal. My reasons for allowing the appeal on the amended ground follow.
Background
Rule 20 of the Australian Road Rules (‘ARR’) provides that a driver must not drive at a speed over the speed limit applying to the driver. A breach of rule 20 is an offence against s 79B of the RTA. S 79B(2) of the RTA provides that if a vehicle appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of a “prescribed offence”, the owner of the vehicle is guilty of an offence against the section unless, relevantly, it is proved that although the vehicle appears to have been involved in the commission of a prescribed offence, no such offence was in fact committed. An offence against the RTA prescribed by regulation is a “prescribed offence” for the purposes of s 79B(2).[1]
[1] Road Traffic Act 1961 (SA) s 79B(1).
The evidence
It was alleged by the prosecution at trial that at 8.17am on 14 November 2016, the appellant drove his motorcycle through the intersection of King William Road and Sir Edwin Smith Avenue (‘the intersection’) at a speed of 59 kilometres per hour. As stated above, the speed limit on that section of road was 50 kilometres per hour.
The prosecution tendered a number of exhibits to prove the relevant offending, including:
·P3: Four photographs taken by a Redflex red speed HDX photographic detection device located at the intersection of King William Road and Sir Edwin Smith Avenue (‘the Redflex device’), depicting a motorbike with the registration S07AZJ at 8.17am on 14 November 2016 (‘the Photographs’);
·P4: A Certificate of Operation and Testing of Approved Photographic Detection Device relating to the Redflex device certified pursuant to s 79B(10)(b) and (c) of the RTA (‘the Certificate’); and
·P5: A photograph of the intersection in question with markings on it to explain which of the three lanes depicted in the photograph is ‘Lane 3’.
It is necessary to say more about the Certificate, P4.
Section 79B(10) of the RTA provides:
(10) In proceedings for an offence against this section or proceedings for a prescribed offence –
(a)     a photograph or series of photographs produced by the prosecution will be admitted in evidence if–
(i)the photograph or each of the photographs was produced from an exposure taken, or electronic record made, by a photographic detection device; and
(ii)the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with that use of the device,
and a denotation as to date, time and location that appears as part of such a photograph will be accepted as proof, in the absence of proof to the contrary, of the date, time and location at which the exposure was taken or the electronic record made by the photographic detection device; and
(b)     a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or any other police officer of or above the rank of inspector, and purporting to certify–
(i)that a specified device used at a specified location during a specified period was a photographic detection device; and
(ii)that the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of that device during that period
will be accepted as proof, in the absence of proof to the contrary, of the facts so certified; and
(c)     if it is also certified in a document of a kind referred to in paragraph (b) that the device was designed and set to operate according to a specified system during that period, it will be presumed, in the absence of proof to the contrary, that the device was designed and set to operate according to that system during that period and did, in fact, so operate.
The Certificate P4 is signed by a Chief Inspector of Police and certifies that, inter alia:
1The Redflex device was a photographic detection device as approved under Regulation 29 of the Road Traffic (Miscellaneous) Regulations 2014 for a specified period of 28 days from 1015 hours on 26 October 2016;
2The Redflex device was operated and tested according to the requirements of the RTA and the Road Traffic (Miscellaneous) Regulations 2014 in connection with the use of the device referred to in (1) above during the period referred to in (1);
3When the Redflex device registers a vehicle proceeding in excess of the speed limit set on the device, it takes an exposure of that vehicle from the rear and records the date, time, location code, speed of the vehicle, speed limit for the location, and the lane in which the vehicle is travelling on the exposure (the first exposure);
4After a programmed delay, the Redflex device takes a second exposure of the vehicle from the rear and records the same information as the first exposure (the second exposure); and
5In between the first and second exposure, another exposure is taken of the vehicle’s registration plate.
Accordingly, the Certificate P4 acts as an aid the prosecution may use in proving offences of this type. S 79B(10) allows the prosecution to tender photographs taken by the Redflex device and the Certificate. If the photographs appear to show that a vehicle is speeding, by virtue of the facts stated in the Certificate, no further proof of speeding is required.[2] If an owner of a vehicle captured by the Redflex device wishes to defend a s 79B(2) charge, they must prove that although their vehicle appears to have been speeding, no such offence was in fact committed.[3] In other words, tendering a s 79B(10) certificate reverses the onus of proof onto the defendant to prove that an offence has not been committed.
[2] Road Traffic Act 1961 s 79B(10).
[3] Road Traffic Act 1961 s 79B(2)(a).
The photographs
Four photographs tendered pursuant to s 79B(10)(a) made up exhibit P3. For convenience, I will refer to these photographs as Photos 1, 2, 3 and 4 respectively. The photographs show traffic travelling in a southerly direction along King William Road towards the city. At the intersection of Sir Edwin Smith Avenue there are 3 lanes for traffic travelling south.
Photo 1 is taken at 8:17:10am. It depicts three vehicles travelling through the intersection. One of those vehicles is a motorcycle. Photo 1 has the Frame Number ‘1 SA’. It records that the vehicle in Lane 3 is travelling at a speed of 59 kilometres per hour.
Photo 2 is taken 0.11 seconds after Photo 1. It depicts three vehicles travelling through the intersection. One of those vehicles is a motorcycle. This photo has the Frame Number ‘1 P’. It states that the vehicle in Lane 3 is travelling at a speed of 59 kilometres per hour. This photograph is not referred to in the Certificate P4.
Photo 3 appears to be an enlarged version of Photo 2, as it is also taken 0.11 seconds after Photo 1 and has the Frame Number ‘1 P’. It also states that the vehicle in Lane 3 is travelling at a speed of 59 kilometres per hour. Because it has been zoomed in, a registration plate reading “S07AZJ” can now be seen on the motorcycle. The back headlight of another vehicle is also visible. This photograph is not referred to in the Certificate P4.
Photo 4 is taken at 8:17:11am, 1 second after Photo 1. It depicts four vehicles travelling through the intersection. One of those vehicles appears to be the same motorcycle as that which appears in Photos 1, 2 and 3. Photo 4 has the Frame Number ‘1 SB’. It states that the vehicle in Lane 3 is travelling at a speed of 59 kilometres per hour.
Photograph 1 and 4 are linked to the Certificate P4.
While the photographs contain information that the vehicle in Lane 3 was travelling at 59 kilometres per hour, nothing in the photographs identifies which of the lanes is, in fact, Lane 3. Without that information, it would not be possible to identify which of the vehicles in the photographs was actually travelling in Lane 3. As mentioned the photographs record other vehicles in other lanes travelling through the intersection.
The prosecution was alive to the problem of the identification of the lanes. The prosecutor produced a document as a business record of the Police Department, that proved that the appellant’s motorcycle was travelling on Lane 3: this was eventually admitted as P5.
P5 is a sample photograph of the intersection. The photograph records that it was taken on 15 September 2016. The photograph has imposed upon it computer generated red arrows pointing to each of the three lanes visible in the photograph. The arrows indicate which of each of the three lanes are Lanes 1, 2 and 3 respectively. The arrow marked Lane 3 points to the lane in which the motorcycle with the registration S07AZJ can be seen travelling in the photographs that constitute P3. P5 was the only exhibit tendered at trial that proved that the ‘Lane 3’ referred to in the photographs, and therefore the Certificate, was the lane in which the motorcycle was travelling. Without P5, the prosecution could not prove which of the three vehicles that could be observed in Photos 1, 2, 3 and 4 was the “offending vehicle” to which the Certificate referred.
As will be discussed below, P5 was eventually admitted by consent of the parties as a business record. It is the tender of P5 that, in my view, caused unfairness to the appellant.
The tendering of P5
It is necessary to set out in some detail what occurred in the trial in the lead up to the Magistrate admitting exhibit P5 into evidence with the consent of both parties.
The prosecutor tendered P1-P4. The prosecutor then called Sergeant Anderson, a police officer stationed at the expiation notice branch of SAPOL. Sergeant Anderson gave evidence in relation to the operation of the Redflex device at the intersection.[4] He was shown the document that eventually became P5 by the prosecutor and indicated that P5 was a “sample photograph” of the intersection. He gave evidence that “all lanes are marked left to right on the photograph”. He explained that at the intersection there is an induction loop marked in the road on each lane. He said that when the loop is triggered by a vehicle speeding, the Redflex device will recognise which lane has been triggered.
[4] Transcript 17.
Sergeant Anderson accepted that the arrows marking the lane numbers on exhibit P5 were created by “someone” superimposing a red arrow and a number onto the photograph of the intersection taken by the Redflex device.
The prosecution sought to tender P5 as a business record. The Magistrate correctly raised with the prosecutor that the document was the only evidence at trial that identified which of the three lanes captured by the Redflex device was Lane 3, as the photographs tendered as P3 simply showed three lanes and multiple vehicles. Sergeant Anderson, in response to questions from the Magistrate, gave evidence that someone at the evidence enquiry section of the expiation notice branch would have prepared P5 by marking the photograph with red arrows and the lane numbers. Sergeant Anderson accepted that P5 had been generated by someone other than himself; he could not say who specifically had generated it or what information the person had in their possession. He simply could not give admissible evidence about the document to establish it was a “business record”. No mention was made by the Magistrate to the exercise of his discretion even if the document was a “business record”.
Section 53 of the Evidence Act 1929 (SA) defines “business record”

as any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business. The Magistrate in discussions with the prosecutor, noted that Sergeant Anderson, having not prepared P5 and having no knowledge of the information, if any, on which P5 was constructed, could not authenticate P5 himself. P5 therefore was hearsay evidence of which lane was Lane 3 and could not, without more, accurately be characterised as a “business record”. The prosecutor asked the Magistrate for an adjournment so that he could produce admissible evidence as to the identification of Lane 3. The Magistrate, before considering the adjournment application, conducted the following exchange with the appellant:
QPerhaps I’ll ask the defendant this. Mr O’Callaghan there’s been an issue in relation to proof of which lane is which and prosecution have sought to tender a document which is retained by the Expiation Branch which identifies lane three and the intersection. You’ve got a copy of that?
AYeah I’ve got a copy of that picture yes I do.
QNow at the moment through this witness there has been insufficient evidence called with respect to the preparation and retaining of this record and its use within the department and whether or not it’s relied upon regularly those technical issues in relation to the admission of this document as a business record have not been attended to and the prosecutor is seeking an adjournment to attend to that, to produce the evidence to show that this is a business record and he’s having to adduce evidence of how these records are kept in the department and what they’re used for, how they’re relied upon etc, etc, this might be the sort of document that’s used every day inside the Expiation Unit as part of its ordinary business and relied upon for its accuracy etc, etc, so prosecution may be in a position to prove that by calling some further evidence. Do you wish to put them to proof in relation to that or do you consent to that being tendered as a business record?
AThe business record could actually hold other aspects that could be crucial or could be of assistance to the case your Honour but it’s just going to drag the matter out further and further.
QYeah so you consent.
P5 was then tendered and admitted into evidence.
During the hearing of the appeal, the respondent conceded that the Magistrate should have advised the appellant in clear terms that consenting to the relevant document being tendered effectively proved an aspect of the prosecution case which, if not proved, may have been fatal to its case. I add some brief comments on this concession below.
The obligation to assist unrepresented defendants
The duty of a judicial officer to provide assistance to unrepresented litigants is well established. There is an obligation on a trial judge or magistrate to ensure that an accused person has all the information they require in order to have a fair trial. Courts must conduct themselves in a way that:
…will avoid the possibility that a party or a witness should feel that he has not been permitted to give a good account of himself because he has been overawed, or he has not been made aware of his rights, or no, or no sufficient, explanation has been made of what is required of him.[5]
[5] Cooling v Steel (1971) 2 SASR 249 at 250.

As Mason J observed in MacPherson v The Queen:[6]
Giving full weight to the adversary character of a criminal trial and the difficulties of advising an accused who is not represented, I nevertheless consider that the trial judge is bound to ensure that an accused person has a fair trial. To that end he is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial … A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as “fair”. [7]
[6] (1981) 147 CLR 512.
[7] MacPherson v The Queen (1981) 147 CLR 512 at 534 per Mason J.
While the trial judge or magistrate must not become an advocate for the accused, they must ensure that the accused person understands the rules and procedures of the court and the rights they possess. The extent of the assistance that will be required will be dependent on the circumstances of the case, the issues that are in dispute, and the unrepresented person concerned.[8] The judge or magistrate must not give strategic advice to an accused, or advise them on how to conduct their defence, but must always ensure that an unrepresented person has the information they need to make informed and effective choices about their case.[9]
[8] MacPherson v The Queen (1981) 147 CLR 512 at 546-7 per Brennan J.
[9] Ardalich v Police [2007] SASC 196.
In this case, the Magistrate identified a gap in the prosecution case against the appellant – namely, that the prosecution could not prove that “Lane 3” was the lane in which the motorcycle was travelling unless more evidence was adduced about the preparation of exhibit P5. It is correct that the Magistrate did to some extent explain to the appellant that there was “insufficient evidence” at “the moment” to establish that P5 was a business record and that the prosecution were seeking an adjournment to prove that it was a “business record”. As the Magistrate put it:
QDo you wish to put them to proof in relation to that or do you consent to that being tendered as a business record?
In my view, the respondent was correct to concede that the Magistrate did not go far enough in explaining that, by consenting to the tender of P5 the appellant was in effect allowing the gap in the prosecution case to be filled. While the Magistrate did explain the concept of a “business record” to the appellant, he did not adequately explain why, in the circumstances of this case, those principles had relevance. Without further explanation, the appellant could not be expected to understand the significance of the issue.
In context, the manner in which the Magistrate expressed the issue suggested it was likely the prosecution could produce the evidence if given enough time.
The Magistrate did not advise the appellant of his right to object to an adjournment being granted. Nor did he advise the appellant that an adjournment would most likely be granted only on the prosecution paying the reasonable costs incurred by the appellant. Importantly, the Magistrate did not advise the appellant that it was possible that the prosecution may not have been able to obtain evidence that “closed the gap” in the prosecution case. Indeed it is hard to understand how P5 could ever be established as a “business record”. The evidence established that another police officer had simply placed arrows on the photograph eventually marked P5. However, I accept that it was possible that the prosecution may have been able to obtain other evidence to prove its case but that is speculative. Importantly, the Magistrate did not inform the appellant that a failure by the prosecution to obtain further evidence would lead to him being acquitted of the charge. The manner in which it was explained by the Magistrate could have lead the appellant to believe that an adjournment was a waste of time and that the gap in the evidence would inevitably be filled. Maybe but maybe not. The Magistrate was not in a position to know that the further evidence would be available.
I have not overlooked that it was the Magistrate who identified the problem in the prosecution case. It is clear from the transcript that the Magistrate treated the appellant with courtesy and respect, and explained very carefully to him the operation of the evidentiary certificates relied on by the prosecution. Indeed, I reject any suggestion by the appellant that the Magistrate was in any way biased. A review of the transcript demonstrates the clear impartiality of the Magistrate. Further it is clear that the Magistrate when considering his final decision assessed the evidence carefully and provided cogent reasons for his decision.
Any magistrate conducting a trial with an unrepresented defendant is in a difficult and sometimes delicate position. The obligation of the trier of fact in such circumstances is informed by ensuring that a defendant has a fair trial. The question of fairness necessarily varies with the circumstances of every trial and this includes factors such as the matters in dispute and the conduct of the parties’ cases.
The appellant had made it clear to the Magistrate that his defence was that the device was inaccurate and that he could “mathematically” prove that from measurements he had made from the photographs. It may be that the Magistrate in this case was influenced by his perception of the issues then in dispute and the manner in which the appellant intended to proceed. I have also considered that the Magistrates Court is a very busy jurisdiction and the need to dispose of the work efficiently. However, in my view, the Magistrate was under an obligation to identify for the appellant that, as well as being entitled to present the defence he had planned, he was also entitled to argue that the materials tendered by the prosecution did not prove that he was speeding unless supplemented by proof that his vehicle was travelling in Lane 3. In my view, the information given by the Magistrate to the appellant about the nature and significance of the business record meant that the appellant’s consent to the tender of P5 was not based on adequately informed consent
The Magistrate should have advised the appellant that by consenting to the tender of P5 he was conceding evidentially a significant aspect of the prosecution case. A failure to so meant that the appellant remained ignorant of an argument that may have led to an acquittal of the charge. It cannot be excluded that, by consenting to the tender of P5, the appellant gave up a chance of acquittal because he was not fully informed of his legal options.
The respondent in my view appropriately conceded the appeal.
In those circumstances, I do not need to consider the other grounds of appeal.
Order
I grant leave to the appellant to amend his Notice of Appeal to include the ground that the Magistrate did not properly inform him in relation to the issue of consenting to the tender of exhibit P5. The appeal is allowed. The verdict and penalty imposed should be set aside. I remit the matter for a retrial before a different Magistrate.