Police v Butcher - [2016] SASC 130

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BUTCHER
[2016] SASC 130
Judgment of The Honourable Justice Stanley
17 August 2016
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
EVIDENCE - PROOF - FACILITATING PROOF - MATTERS RELATING TO MACHINES, PROCESSES AND OTHER DEVICES
EVIDENCE - PROOF - STANDARD OF PROOF - STANDARD OF SATISFACTION - SUFFICIENCY - GENERALLY
This is an appeal from the judgment of a magistrate who dismissed charges against the respondent that on 14 September 2012 he drove at a speed which was dangerous to the public contrary to s 46 of the Road Traffic Act 1961 (SA) (the RTA) and drove a vehicle at a speed 45 kms per hour in excess of the applicable speed limit contrary to r 20 of the Australian Road Rules and s 45A(1) of the RTA.
At trial evidence was called from Senior Constable Goldsmith who gave evidence that on 14 September 2012 he used an Ultralyte laser speed gun to record the speed of the vehicle driven by the respondent at Helps Road, Burton. He recorded the vehicle’s speed at 102 kms per hour. The applicable speed limit was 50 kms per hour. He gave evidence that both before and after his shift on 14 September 2012 he conducted fixed distance tests on the device to ensure that it was working correctly.
At trial the police tendered a certificate of accuracy signed by Chief Inspector Quinn pursuant to s 175(3)(ba) of the RTA. The certificate provided that Chief Inspector Quinn certified that the speed gun was tested on 14 September 2012 and was shown by the test to be accurate within a limit of error not exceeding plus 2 or minus 3 kms per hour. In addition, the police tendered a calibration report for the speed gun completed on 28 November 2011 which reported that the accuracy of the gun was within the specification of clause 2.6.1(a) “For kilometres per hour + 2, – 3 km/h”, as per the Australian standard for laser-based speed detection devices, AS4691.1-2003. Police also tendered that Australian standard which prescribes a test for measuring the accuracy of those devices in that range. Police also tendered a certificate of accuracy of traffic speed analyser completed by Senior Constable Goldsmith and Chief Inspector Quinn.
The magistrate dismissed the proceedings on the basis that the respondent had proved on the balance of probabilities that the test conducted by Senior Constable Goldsmith on 14 September 2012 did not show the speed gun to be accurate within the specified margin of error. Accordingly he could not find proved beyond reasonable doubt the speed of the respondent’s vehicle.
The appellant submits that the learned magistrate erred in law in finding that there was evidence constituting proof to the contrary of a fact stated in the certificate tendered pursuant to s 175(3)(ba) of the RTA.
Held (dismissing the appeal):
1. The evidence before the magistrate was sufficient to prove that the test conducted by Senior Constable…

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 Police v Butcher

Details

AGLC: Police v Butcher [2016] SASC 130
Case: [2016] SASC 130
Decision Date: 17 August 2016

CaseChat Overview and Summary

In Police v Butcher, the appellant contested a traffic offence conviction based on the accuracy of a speed gun. The appeal hinged on whether the evidence proved that a test of the speed gun conducted by Senior Constable Goldsmith on 14 September 2012 showed the gun to be accurate within the specified limits. The matter was heard in the Magistrates Court of South Australia. The appellant argued that the evidence did not prove that the test conducted by Senior Constable Goldsmith demonstrated the accuracy of the speed gun within the prescribed limits, namely plus 2 or minus 3 kms per hour. The respondent, on the other hand, had to prove that the test did not show the speed gun to be accurate to the extent indicated in the certificate issued by Chief Inspector Quinn. The court was required to determine whether the evidence provided was sufficient to prove that the test conducted by Senior Constable Goldsmith did not establish the accuracy of the speed gun as required. This involved examining the nature of the test performed and whether it met the standards set out in Appendix A of the Australian Standard for determining the accuracy of speed guns.

The court reasoned that the evidence presented was sufficient to support the magistrate's conclusion that the test conducted by Senior Constable Goldsmith on 14 September 2012 did not demonstrate the speed gun's accuracy within the specified limits. The test did not follow the prescribed method in Appendix A of the Australian Standard, which was necessary to establish the accuracy of the speed gun. The court held that the persuasive onus was on the respondent to prove that the test conducted by Senior Constable Goldsmith did not show the speed gun to be accurate within the specified limits, which the respondent successfully discharged. The agreed facts and the calibration report, which was based on a test conducted on 25 November 2011, did not relate to the test performed by Senior Constable Goldsmith on 14 September 2012. Therefore, the calibration report could not be considered part of the test conducted by Senior Constable Goldsmith. The court concluded that the evidence was sufficient to prove that the test did not show the speed gun to be accurate to the extent indicated in the certificate issued by Chief Inspector Quinn.

The court dismissed the appeal and indicated that it would hear the parties regarding the question of costs. The decision underscores the importance of adhering to the prescribed testing methods to establish the accuracy of speed guns and that the persuasive onus was on the respondent to prove that the test did not meet the required standards.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

STANLEY J

In the circumstances the appellant has failed to demonstrate that the magistrate erred in so finding.Conclusion I would dismiss the appeal. I will hear the parties as to the question of costs.

Ratio Decidendi

Legal Principle Established

Established by: STANLEY J

In Police v Wyatt,[15] Kelly J considered the operation of s 175(3)(ba). She held that the presumption it establishes is not displaced simply by raising a question as to whether the tests performed were capable of showing the accuracy of the speed gun. It must be positively shown on the balance of probabilities that the test did not show the speed gun to be accurate. [15] [2016] SASC 17.Consideration The appellant submits that the agreed facts merely evidence the process by which Chief Inspector Quinn formed the belief which satisfied him it was appropriate to issue the s 175(3)(ba) certificate and did not amount to evidence the test conducted by Senior Constable Goldsmith did not show that the device was accurate to the extent stated in the certificate. The agreed facts give rise to an inference that absent the calibration report Chief Inspector Quinn would not have issued the s 175(3)(ba) certificate because the other material before him namely the certificate of accuracy of the speed gun completed by Senior Constable Goldsmith and the notes made by that officer did not evidence the accuracy of the speed gun within the specified limits of plus 2 or minus 3 kms per hour. While the calibration report did evidence the accuracy of the speed gun within those specified limits the calibration report was based on a test of the speed gun which was undertaken on 25 November 2011. Further, the calibration report did not relate to any test undertaken by Senior Constable Goldsmith. Accordingly, the calibration report did not form part of the test conducted by Senior Constable Goldsmith on 14 September 2012. The issue on appeal, as it was at trial, is whether the evidence proves on the balance of probabilities that the speed gun had been tested on 14 September 2012 and that test showed the gun to be accurate to the extent indicated in the s 175(3)(ba) certificate issued by Chief Inspector Quinn. At issue is whether the test performed by Senior Constable Goldsmith proved the laser gun to be accurate to the extent indicated in the certificate, i.e. plus 2 or minus 3 kms per hour. The respondent had to prove it did not. In my view the respondent discharged the persuasive onus he bore. The evidence before the magistrate was sufficient to prove that the test conducted by Senior Constable Goldsmith on 14 September 2012 was not a test capable of measuring whether the speed gun was accurate to the extent indicated in the certificate. It was not the test prescribed in Appendix A of the Australian Standard as the relevant test to establish the accuracy of the speed gun to the extent indicated in the certificate. The evidence establishes that the test did not show the speed gun to be accurate to the extent indicated. So much is implicit in the agreed facts concerning the basis upon which Chief Inspector Quinn issued the certificate. In this regard it is important to recognise that the persuasive onus the respondent bore at trial was not to prove that the speed gun was not accurate to the extent indicated in the certificate but that the test conducted by Senior Constable Goldsmith on 14 September 2012 did not show that the speed gun was accurate to that extent. The evidence before the magistrate was sufficient for him so to find.