Pinkerton v Police - [2006] SASC 341

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PINKERTON v POLICE
[2006] SASC 341
Judgment of The Honourable Justice Gray
17 November 2006
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN MANNER DANGEROUS TO PUBLIC
Appeal against conviction for driving at a speed and in a manner dangerous to the public - discussion of section 46 of the Road Traffic Act 1961 (SA) and the test to be applied - consideration of expert evidence - consideration of whether Jones v Dunkel inference can be drawn - whether findings of magistrate open on the evidence - held: no error by Magistrate - appeal dismissed.
Road Traffic Act 1961 (SA) s 46, s 173(3)(b)(ii), s 175(3)(ba); Australian Road Rules rule 20; Crimes Act 1900 (NSW) s 52; Traffic Act 1925 (Tas) s 32(1), referred to.
Redman v Klun (1979) 20 SASR 343; Fox v Percy (2003) 214 CLR 118; The King v Coventry (1938) 59 CLR 633; McBride v The Queen (1966) 115 CLR 44; Pope v Hall (1982) 30 SASR 78; R v Smith [1969] Tas SR 159; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSLWR 705; R v Bonython (1984) 38 SASR 45; G v The Queen (1999) 197 CLR 414; Browne v Dunn (1893) 6 R 67; Dyers v The Queen (2002) 210 CLR 285, considered.

PINKERTON v POLICE
[2006] SASC 341
Magistrates Appeal
GRAY J

Scott Pinkerton, the defendant and appellant, was charged on complaint that on 9 June 2003, at Pooraka, he drove a motor vehicle at a speed which was dangerous to the public, contrary to section 46 of the Road Traffic Act 1961(SA). He was also charged with driving at a speed in excess of the posted speed limit, contrary to rule 20 of the Australian Road Rules.
The appellant pleaded not guilty and the matter was tried in the Magistrates Court on 20 March 2006. At the conclusion of the trial, the appellant was found guilty of driving at a speed dangerous to the public. Count 2 was dismissed.
The Prosecution Case
The prosecution called four witnesses: Senior Constables Rodell and Salter, Constable Vincent as well as Mr Alexander, a speed camera operator. Tendered as exhibits were certificates relating to the accuracy of the speedometer of the police vehicle driven by Senior Constable Rodell when he conducted a follow and time process.
At the time of the alleged offence, Main North Road was a dual carriageway for southbound traffic. The speed limit on relevant portions of Main North Road varied between an 80 kilometre per hour zone and a 100 kilometre per hour zone.
On 9 June 2003, Mr Alexander set up a speed camera on Main North Road for the purpose of detecting speeding vehicles travelling south on Main North Road. At about 9.47 pm, he observed two vehicles that he concluded were under heavy acceleration, one in the left lane and the other in the right. Both vehicles activated the speed camera. He radioed police communications to alert police in the vicinity of the presence of two vehicles travelling at high speed.
At or about 9.50 pm, Constables Rodell and Horton were on uniform mobile patrol near Parafield Airport. They received Mr Alexander’s report over the radio. The report was to the effect that two vehicles appeared to be drag racing south along Main North Road. The constables’ police vehicle was on Kings Road, Parafield, travelling east toward its intersection with Main North Road. Senior Constable Rodell observed a red Audi and a silver Ford Fairlane stationary at the intersection lights.
The vehicles moved away from the intersection lights at what Senior Constable Rodell considered to be a fast rate of acceleration. Senior Constable Rodell drove through a red light at the intersection and turned right on to Main North Road. He accelerated after the two vehicles, (the Audi in the right-hand lane and the Fairlane in the left). He observed the Fairlane move into the right-hand lane behind the Audi, for the apparent purpose of overtaking another vehicle in the left lane.
Senior Constable Rodell said that the police vehicle caught the Fairlane near the junction of Kesters Road and Main North Road. He then conducted a follow and time of the Fairlane. The Fairlane subsequently pulled over.
Senior Constable Rodell continued to follow the Audi. He said that he accelerated and caught the Audi near the junction of Maxwell Road and Main North Road. He then commenced a follow and time at 160 kilometres per hour over a distance of about 300 metres. At the time, the speed limit on that section of road was 100 kilometres per hour. The two cars entered an 80 kilometres per hour zone and Senior Constable Rodell followed the Audi for a further 300 metres, still at a speed of 160 kilometres per hour. He then activated the police car’s lights. The Audi pulled over.
Pursuant to section 175(3)(b)(ii) of the Road Traffic Act, a certificate was tendered at trial certifying that the speedometer attached to the police vehicle tested and found to be accurate.[1] By operation of section 175(3)(b)(ii), the certificate was prima facie proof of the speedometer’s accuracy inter alia throughout the three-month period following the day of the test. This prima facie presumption applied even where the measured speed differed from the tested speed.
[1] Section 175(3)(b)(ii) provides:
a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or by any other member of the police force of or above the rank of inspector, and purporting to certify that a specified stopwatch or speedometer had been tested on a specified day and was shown by the test to be accurate to the extent indicated in the document constitutes, in the absence of proof to the contrary, proof of the facts certified and that the relevant instrument was accurate to that extent on the day of the test and—
…
(ii) in the case of a speedometer—throughout the 3 month period following and the 3 month period preceding the day of the test,
for the purpose of measuring the speed of any motor vehicle, whether or not the speed measured differed from the speed in relation to which the stopwatch or speedometer was tested or the circumstances of the measurement differed in any other respect from the circumstances of the test;
The common law is to a similar effect. Redman v Klun[2] is authority for the proposition that there is a sufficient presumption in favour of the accuracy of scientific instruments such as speedometers to establish a prima facie case in a proceeding such as this. King CJ observed:[3]
[2] Redman v Klun (1979) 20 SASR 343.
[3] Redman v Klun (1979) 20 SASR 343 at 344-345 (footnotes omitted).
In reaching his conclusion, the learned Special Magistrate has over-looked the common law presumption in favour of the accuracy of instruments in common use, such as the speedometer. The law on the topic is conveniently stated by Herring C.J. in Porter v. Kolodzeij as follows:
“In support of the admissibility of the result of such tests, the Solicitor-General relied upon the well-known evidentiary presumption of the working accuracy of scientific or technical instruments. This presumption makes the recording or reading of such an instrument prima facie evidence of the facts recorded without any evidence that its accuracy has been actually tested. According to Taylor on Evidence 12^th ed., … it applies to watches, clocks, thermometers, pedometers, aneroids, anemometers, and ‘a variety of other ingenious contrivances for detecting different matters’. It has been held in several cases to apply to the readings of speedometers: see, for example, Thompson v. Kovacs; Peterson v. Holmes; Nicholas v. Penny; sub nom. Penny v. Nicholas. The speedometer, however, today takes its place, as do the contrivances actually mentioned by Taylor, amongst a class of instruments of a scientific or technical character, which by general experience is known to be trustworthy, and are so notorious that the court requires no evidence to the effect that they do fall into such class, before allowing the presumption in question to operate with regard to readings made thereon. As Lowe J. pointed out in Crawley v. Laidlaw, judicial notice supplies the place of evidence in such cases.”
Because it is a South Australian case, I refer also to Barker v. Fauser (a case relating to a weighbridge)…There Travers J. said:
“If they are instruments or machines of a type which we know to be in common use our experience tells us that this is suggestive of their substantial correctness. Experience also tells us that they are rarely completely accurate, but usually so substantially accurate that people go on using them, and that subject to a certain amount of allowance for some measure of incorrectness, they act upon them. In fact, this means that for a small overweight one would necessarily be very conservative about acting upon a machine if that were the only proof of the overweight, but as the amount of the indicated overweight increased one will tend more and more, as a matter of general experience, to rely on the machine as being at lease prima-facie proof of there being some overweight. Ones does not necessarily take them as being completely accurate, but the greater the overweight shown the greater is the probability that there is, in fact, some overweight. On the facts of this case so far submitted there is sufficient evidence of an alleged over-weight to raise the so-called presumption, and because of that presumption the case should have continued and all the evidence should have been heard.”
I agree with those observations, and the speedometer reading to which the police officer deposed was clearly sufficient to raise the presumption, and call for an answer.
The evidentiary provision in aid of proof of the accuracy of the speedometer contained in section 175(3)(ba) of the Road Traffic Act, as amended, carries no implication that such a certificate is required in cases in which a speedometer reading is relied upon. The efficacy of the section is an aid to proof. The words “in the absence of proof to the contrary” call on the defendant to offer affirmative evidence “to the contrary” in a case where the accuracy of the police speedometer is placed in issue.
It is to be noted that what is in issue when an alleged speed is disputed may not be the accuracy of the instrument itself, but whether its measurement has been correctly read and reported. The same observations may be made with respect to the common law presumption.
The Defence Case
The defence called one witness - Mr Hall, a consultant engineer. The appellant elected not to give evidence.
The evidence of Mr Hall consisted in the main of calculations of speed, time and acceleration based on certain assumptions. I find it questionable whether the mathematics involved called for the assistance of an expert. However, the evidence was adduced without objection. It was presumably an area of specialised knowledge that may have assisted the Magistrate.[4]
[4] Fox v Percy (2003) 214 CLR 118 at [150] (Callinan J.)
On the basis of the assumptions that Mr Hall was asked to make, his opinion was that the Audi could reach 125 kilometres per hour after travelling for 200 metres. In response to a question from the Magistrate, Mr Hall also said that if a lower rate of acceleration were assumed, the speed reached at the 200-metre point would be less.
On the basis of this opinion, Mr Hall was asked further questions in the course of which he was asked to assume certain further facts. He was asked to assume that the Audi was travelling at 100 kilometres per hour 200 metres from the intersection of Kings and Main North Road, and to assume further that the Audi was travelling at 160 kilometres per hour at the Kesters Road junction.
On the basis of these assumptions, Mr Hall’s opinion was that the police vehicle would have to attain a speed of 260 kilometres per hour to have an average speed of 150 kilometres per hour and so to be in a position to catch up to the Audi. This was, in Mr Hall’s view, inconsistent with the maximum speed of 175 kilometres per hour deposed to by Senior Constable Rodell.
The Appeal
The complaints
The appellant complains that the Magistrate erred in his assessment of Mr Hall and the use to which he put his evidence, and that the Magistrate erred in particular in entertaining considerable reservations as to the usefulness of Mr Hall’s evidence in undermining the evidence of Senior Constable Rodell. This evidence on the defence case materially affected the credibility and reliability of Senior Constable Rodell’s evidence.
The appellant further complains that having regard to the unchallenged evidence of Mr Hall, the Magistrate erred in accepting the evidence of Senior Constable Rodell that the appellant was travelling at 160 kilometres per hour in the vicinity of Maxwell Road, and then using that evidence as a basis to be satisfied beyond reasonable doubt that the appellant was guilty of the charge of driving at a speed dangerous to the public.
Section 46
The offence created by section 46 of the Road Traffic Act contains two elements. The prosecution must prove that the accused drove a vehicle and that the vehicle was driven at a speed that was dangerous to the public.
The conduct of a driver is to be assessed according to an objective standard. In Coventry,[5] the High Court observed:[6]
The standard is impersonal in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all persons who drive motor vehicles.
… But, speaking generally, the expression ‘driving at a speed, or in a manner, which is dangerous to the public’ describes the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence.
[5] The King v Coventry (1938) 59 CLR 633.
[6] The King v Coventry (1938) 59 CLR 633 at 638.
In McBride,[7] Barwick CJ noted:[8]
The section speaks of a speed or manner which is dangerous to the public.[9] This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public…
A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section.
This concept [dangerous driving] is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby.
[footnote adeed]
[7] McBride v The Queen (1966) 115 CLR 44.
[8] McBride v The Queen (1966) 115 CLR 44 at 49-50.
[9] Crimes Act 1900 (NSW), section 52 is worded as follows “at a speed or in a manner which is dangerous to the public”
The meaning of “dangerous to the public” was also discussed by Wells J in Pope v Hall: [10]
... [I]n all the circumstances, the impeached driving passed beyond the point where it represented a mere departure - and nothing more serious - from the rules of the ordinary highway code, and became so serious a departure from those rules that the manner or speed of the driving ... created a wholly unreasonable and unwarranted danger to the life, or limb, or both, of other road users.
… If one were directing a jury one would say: Ask yourselves how likely it was, in the circumstances, that an accident of some sort would occur, and, at the same time, assuming that an accident did occur, how serious it would be; it will be by weighing both those factors together that you will be able to determine the degree of risk created by the situation - in other words, how dangerous the defendant’s driving was.
[10] Pope v Hall (1982) 30 SASR 78 at 79-80.
The term “public” is not defined by the Road Traffic Act. However, the remarks of Burbury CJ when dealing with a comparable Tasmanian legislative provision[11] in Smith[12] are apposite:[13]
The ‘public’ endangered by the speed or manner of his driving and therefore protected by the statute is therefore not to be regarded as a number of particular individuals endangered but as an innominate class. It is the section of the community as an aggregate shown to be actually or potentially within the ambit of danger created by the speed or manner of driving. The section is not concerned with breach of duty to drive carefully vis-a-vis a particular person.
[11] The Traffic Act1925 (Tas), section 32(1): "A person who drives a motor vehicle on a public street recklessly, or at a speed or in a manner that is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition, and use of the public street and the amount of traffic that actually is at the time or that might reasonably be expected to be on the public street, is guilty of an offence against this Act."
[12] R v Smith [1969] Tas SR 159.
[13] R v Smith [1969] Tas SR 159 at 163.
The Evidence
The prosecution case was established by a number of primary facts. These facts included Senior Constable Rodell’s observation of his speedometer and his observation of the distance between his vehicle and the Audi. Senior Constable Rodell’s evidence was that, during the follow and time of the Audi, he travelled at a constant speed of 160 kilometres per hour, and that, travelling at this speed, he maintained a constant distance to the Audi. From this evidence, if accepted, the prosecution claimed it was an inescapable conclusion that the Audi was also travelling at 160 kilometres per hour. Senior Constable Rodell’s evidence was that he used the speedometer in the police car to determine the speed of the police vehicle.
During cross-examination, counsel for the appellant put to Senior Constable Rodell that the Audi did not travel at 160 kilometres per hour. He denied that possibility. He further denied the suggestion that the Audi’s speed was 120 kilometres per hour in the 100 kilometres per hour zone, and between 90 and 100 kilometres per hour in the 80 kilometres per hour zone. Counsel for the appellant also put to Senior Constable Rodell that he did not catch up with the Audi until it had been pulled over by another police officer. He denied this suggestion.
The critical questions in the case were Senior Constable Rodell’s credibility and reliability.
The conditions governing the admissibility of evidence tendered in the form of an expert opinion were discussed in Makita (Australia) Pty Ltd v Sprowles.[14] Heydon JA observed:[15]
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reasons of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v The Queen … on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise”.
[14] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSLWR 705.
[15] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSLWR 705 at [85].

There is a prerequisite to admissibility of expert opinion evidence. This is that the subject matter of the expert opinion must be such that a person using merely their own instruction or experience in the area of knowledge or human experience would not be able to form a sound judgment on the matter unless that person had the assistance of witnesses who possess special knowledge or experience in the area.[16]
[16] R v Bonython (1984) 38 SASR 45 at 46-47.
A second requirement to the admission and acceptance of expert opinion evidence is that the facts on which the opinion is based are properly identified. In this case, they were. However, for the opinion to be accepted as having any useful relevance, the facts on which the opinion was based needed to be proved. That is not to say that a failure to prove precisely the facts upon which an opinion is based will be fatal. In a case where assumed facts have not been provided, the admissibility of an expert opinion will depend upon the importance of the assumed facts.
The challenged finding
The Magistrate made the following finding with respect to the evidence of Mr Hall:
In relation to Mr Hall’s evidence I do not doubt the accuracy of the measurements that he made of distances along Main North Road, his evidence of the maximum acceleration rates capable of an Audi A4 Quattro as documented in material he accessed or the arithmetic accuracy of the calculations he performed. However I have considerable reservations as to the usefulness of those calculations in undermining Senior Constable Rodell’s evidence. My reservation is borne out of the assumptions made by him and particularly the relevance of extrapolating from an average speed to a maximum speed when the issue for me to determine is whether I am satisfied beyond a reasonable doubt on the evidence of Senior Constable Rodell that the defendant’s vehicle was followed and timed at about 160 km/h.
By calling Mr Hall, the appellant sought to undermine Senior Constable Rodell’s credibility on a collateral issue. Counsel for the appellant accepted that this was the purpose of Mr Hall’s evidence. Counsel elicited, through Mr Hall’s evidence, the inferences and hypotheses on which the defence wished to rely. As Gleeson CJ observed in HG:[17]
To paraphrase what was said by Dixon CJ in Clark v Ryan about the expert witness in that case, the evidence the defence sought to lead from Mr McCombie really amounted to putting from the witness box the inferences and hypotheses on which the defence case wished to rely.
[17] HG v The Queen (1999) 197 CLR 414 at [43] (footnotes omitted).
As earlier observed, counsel for the appellant submitted that the evidence of Mr Hall established that Senior Constable Rodell’s evidence was unreliable. Counsel claimed that Senior Constable Rodell could not have caught the Fairlane or Audi as claimed without the police vehicle travelling at speeds in the order of 260 kilometres per hour or greater. Such speeds were well in excess of Senior Constable Rodell’s claimed maximum speed.
Mr Hall made a number of assumptions concerning the speed of the Audi at various points. It is to be recalled that the evidence as to the observations of the Audi and its speed came from Senior Constable Rodell.
Other persons who could have given evidence on that topic, Senior Constable Rodell’s partner and the appellant, did not give evidence. At first counsel for the appellant submitted that a Jones v Dunkel[18] inference should be drawn against the prosecution because of the failure to call Senior Constable Rodell’s partner.
[18] Jones v Dunkel (1959) 101 CLR 298.
In Dyers,[19] the High Court considered the appropriateness of a direction given in a criminal trial that the jury were entitled to infer that if a person was not called, the person would not have assisted a defendant. Gaudron, Hayne JJ observed:[20]
As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi. As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence.
Then their Honours continued:[21]
As was pointed out in RPS, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. Not only is the accused not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The mode of reasoning which is spoken of in R v Burdett and Jones v Dunkel ordinarily, therefore, cannot be applied to a defendant in a criminal trial. That mode of reasoning depends upon a premise that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so. The conclusion that an accused could shed light on the subject matter of the charge is a conclusion that would ordinarily be reached very easily. But given the accusatorial nature of a criminal trial, it cannot be said that, in such a proceeding, the accused would ordinarily be expected to give evidence. So to hold would be to deny that it is for the prosecution to prove its case beyond reasonable doubt. That is why the majority of the Court concluded, in RPS and in Azzopardi, that it is ordinarily inappropriate to tell the jury that some inference can be drawn from the fact that the accused has not given evidence. To the extent to which earlier decisions of intermediate courts held to the contrary they were overruled.
The reasoning which underpinned the decisions in RPS and in Azzopardi cannot be confined to the accused giving evidence personally. It applies with equal force to the accused calling other persons to give evidence. It cannot be said that it would be expected that the accused would call others to give evidence. To form that expectation denies that it is for the prosecution to prove its case beyond reasonable doubt.
[emphasis orginal]
[19] Dyers v The Queen (2002) 210 CLR 285.
[20] Dyers v The Queen (2002) 210 CLR 285 at [5] (footnotes omitted).
[21] Dyers v The Queen (2002) 210 CLR 285 at [9]-[10] (footnotes omitted).
Their Honours then discussed the further reasons for concluding that the direction should not have been given:[22]
The second of the principal reasons for concluding that a Jones v Dunkel direction should not have been given is closely connected with the first. Any conclusion about who would be expected to call a person to give evidence must take account of the obligations of the prosecution. If persons are able to give credible evidence about matters directly in issue at the trial, those facts, standing alone, would ordinarily suggest that the prosecution should call them. As has been pointed out in several decisions of this Court, a basic requirement of the adversary system of criminal justice is that the prosecution, representing the State, must act "with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one" (emphasis added). That requires the prosecution to call all available material witnesses unless there is some good reason not to do so. The fact that a witness will give an account inconsistent with the prosecution case is not a sufficient reason for not calling that person.
[22] Dyers v The Queen (2002) 210 CLR 285 at [11] (footnotes omitted).
Finally, their Honours discussed a third reason for concluding that the direction should not have been given:[23]
The third of the principal reasons, for concluding that a Jones v Dunkel direction should not have been given, arises out of the direction that the jury should not speculate about the evidence that might have been given by those who were not called. The reasoning of which Windeyer J spoke in Jones v Dunkel was the drawing of inferences from proved facts and the confidence with which such inferences could be drawn. The central issue for the jury in the present matter was whether they were persuaded, to the requisite standard of satisfaction, that the events described by the complainant had happened. To those events there were said to be only two witnesses — the complainant and the accused. It may, therefore, be doubted that the drawing of inferences loomed large in the jury's deliberations in this case. At most, there might have been some questions of inference about peripheral issues.
[23] Dyers v The Queen (2002) 210 CLR 285 at [13] (footnotes omitted).
Gaudron and Hayne JJ then considered the position of the Crown on issues where the Crown has the onus to prove elements of an offence beyond reasonable doubt, and observed:[24]
The three reasons we have given are all concerned with giving a Jones v Dunkel direction about evidence which the accused might have adduced. The directions given in this matter were described in the Court of Criminal Appeal as having been intended as "bipartisan". That is, they were understood as permitting, if not inviting, the jury to conclude that there were witnesses whom the prosecution could and should have called. Again, the trial judge having given the jury no guidance about who could be thought to fall into this group, or why that was so, the directions given were either of no assistance to the jury or were apt to mislead. But again, there are more deep-seated reasons for saying that, save in very exceptional circumstances, a direction of this kind should not be given about witnesses whom the prosecution ought to have called.
[24] Dyers v The Queen (2002) 210 CLR 285 at [16] (footnotes omitted).
The observations of the High Court in Dyers have application. No adverse inference is to be drawn against prosecution or defence as a result of not adducing evidence. Counsel for the appellant abandoned the earlier submission. He was correct to do so.
As earlier observed, Senior Constable Rodell gave evidence that when he first saw the Audi and the Fairlane they were stationary at lights at the intersection of Kings Road and Main North Road. He then observed that they accelerated rapidly and that he then followed. To that end, he travelled through a red light at the corner of Kings Road and Main North Road and moved through that intersection at a speed of approximately 50 kilometres per hour. At that point, the Audi and the Fairlane were about 200-400 metres south of the intersection. He made no estimate of the speed of the Audi at that point. He said that he accelerated the police vehicle to a speed of about 175 kilometres per hour and caught up to be in a position to follow and time the Fairlane in the area of the Kesters Road junction. Having concluded the follow and time of the Fairlane, he then followed and timed the Audi.
It is not surprising that Senior Constable Rodell could only give estimates of speeds and locations. Following the Audi in the way that he did, and at the speeds travelled, can reasonably be expected to have called for significant concentration on his part for safe driving.
The difficulty confronting Mr Hall’s hypotheses and opinions was that each of Senior Constable Rodell’s critical observations involved estimates - his observations that he was going at a speed of 50 kilometres per hour when entering Main North road; that the distance of the Audi from his police vehicle 200-400 metres; that his maximum speed was about 175 kilometres per hour and that the follow and time was in the area of Kesters Road.
Mr Hall also made an assumption of the speed of the Audi at a distance of 200 metres south of Kings Road at 100 kilometres per hour. This assumption was based on the suggested maximum acceleration capacity of the Audi followed by adjustments. Mr Hall assumed that the follow and time process commenced at the Kesters Road junction. He assumed that the Audi proceeded at an average speed of 130 kilometres per hour as it travelled from the 200-metre point to the Kesters Road junction. A variation in these assumptions could materially affect Mr Hall’s conclusions.
In Fox v Percy,[25] Callinan J made the following remarks: [26]
I return to the facts of this case. Here Mr Tindall was described by counsel for the appellant as an "accident reconstruction expert". That is an ambitious claim. Three things may be said about the evidence in this case and running down cases generally. Rarely in my opinion will such evidence have very much, or any, utility. Usually it will be based upon accounts, often subjective and partisan accounts, of events occurring very rapidly and involving estimates of time, space, speed and distance made by people unused to the making of such estimates. Minor, and even unintended but inevitable discrepancies in relation to any of these are capable of distorting the opinions of the experts who depend on them. It is also open to question whether variables in relation to surfaces, weather, and the tyres, weight and mechanical capacities of the vehicles involved can ever be suitably accounted for so as to provide any sound basis for the expression of an opinion of any value to a court. The engagement of experts in running down cases, other than in exceptional circumstances, is not a practice to be encouraged.
These observations are apposite.
[25] Fox v Percy (2003) 214 CLR 118.S
[26] Fox v Percy (2003) 214 CLR 118 at 167.
The Magistrate concluded that he was not satisfied on the evidence that a number of Mr Hall’s assumptions were appropriate.
In this case, for Mr Hall’s evidence to challenge the credibility of Senior Constable Rodell’s evidence, the facts on which his opinion was based were material. The Magistrate was correct in having reservations about the usefulness of Mr Hall’s evidence.
The assumptions on which Mr Hall’s opinion were based were not established to a degree sufficient to form a basis to enable the Magistrate to rely on them to doubt Senior Constable Rodell’s evidence. Senior Constable Rodell was quite specific in saying that he was unsure about exact times and distances.
In examination-in-chief, Mr Hall was asked to make a number of assumptions before expressing his opinion. Not all of the matters on which his opinion was based were proven to the degree of accuracy required for the opinion. Nor, given the circumstances, could they have been. While the facts put to Mr Hall were, to an extent, in evidence, it could not be assumed that the magistrate would accept them.
The real issues were whether the speedometer’s measurement was correctly read and reported, and whether Senior Constable Rodell’s assessment of the distance between his and the appellant’s car was accurate. The Magistrate was impressed with Senior Constable Rodell, and his impression remained following cross-examination.
Ultimately, the question for the Magistrate was whether he accepted Senior Constable Rodell’s evidence as to the follow and time process. It was open to the magistrate to weigh and consider Mr Hall’s evidence with the reservations that he had about that evidence. The Magistrate’s process of reasoning was open to him. His reservations about the assumptions made by Mr Hall were appropriate.
Conclusion
The findings of the magistrate were open on the evidence. The Magistrate weighed the evidence and found himself unpersuaded that Mr Hall’s opinions undermined the credibility and reliability of Senior Constable Rodell’s evidence. The Magistrate explained that this was so as he was not satisfied that a number of the assumptions made by Mr Hall had been established by the evidence. These were conclusions that were open to the Magistrate.
The Magistrate’s conclusion that he was satisfied that the prosecutor had proved each of the elements of the offence beyond reasonable doubt was also open to him. He was entitled to conclude that the prosecution had excluded all reasonable hypotheses consistent with innocence.
This appeal is dismissed.