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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pinkerton v Police

Details

AGLC: Pinkerton v Police [2006] SASC 341
Case: [2006] SASC 341
Decision Date: 17 November 2006

CaseChat Overview and Summary

In the matter of Pinkerton v Police, the appellant, Mr. Pinkerton, contested his conviction for driving at a speed and in a manner dangerous to the public under section 46 of the Road Traffic Act 1961 (SA). The central issue before the court was whether the magistrate erred in accepting the prosecution's evidence and convicting Mr. Pinkerton. This involved scrutiny of the credibility and reliability of the Senior Constable Rodell's evidence, the admissibility of expert evidence, and the application of the Jones v Dunkel inference.

The court examined the legal principles surrounding the admissibility of expert evidence, referencing the decision in Makita (Australia) Pty Ltd v Sprowles. The court noted the necessity for expert evidence to be based on specialized knowledge, with a proper foundation and explicit scientific or intellectual basis. The court also considered whether the Jones v Dunkel inference could be applied, which allows for an inference of guilt if the prosecution’s evidence is unimpeached and the accused offers no explanation for the incriminating facts. The court concluded that the magistrate was entitled to weigh the evidence and make findings based on the credibility of the witnesses. The magistrate’s decision to accept Senior Constable Rodell's evidence and reject the expert opinion of Mr. Hall was deemed appropriate, as the magistrate was not persuaded that the assumptions made by Mr. Hall had been established by the evidence.

The court found no error in the magistrate's decision-making process. The magistrate's conclusion that the prosecution had proved each element of the offence beyond reasonable doubt was considered sound, as the magistrate was satisfied that the prosecution had excluded all reasonable hypotheses consistent with innocence. The appeal was therefore dismissed, affirming the conviction.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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].

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.