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 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 (at [19]).
2. 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 (at [20]).
3. The appellant has failed to demonstrate that the magistrate erred in finding that the test conducted by Senior Constable Goldsmith on 14 September 2012 did not show that the speed gun was accurate to the extent indicated in the certificate (at [21]).
Road Traffic Act 1961 (SA) s 45A(1), s 46, s 175(3)(ba); Australian Road Rules r 20, referred to.
Martin v Department of Transport, Energy and Infrastructure (2010) 269 LSJS 403; Police v Butcher (2014) 119 SASR 509; Police v Young (2012) 114 SASR 567; Police v Wyatt [2016] SASC 17, considered.

POLICE v BUTCHER
[2016] SASC 130
Magistrates Appeal: Criminal
STANLEY J.
Introduction

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.
The trial and the appeal turned on the operation of s 175(3)(ba) of the RTA which provides:
(ba)a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or by any other police officer of or above the rank of inspector, and purporting to certify that a specified traffic speed analyser 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 traffic speed analyser was accurate to that extent on the day on which it was so tested and, for the purpose of measuring the speed of any motor vehicle—
(i) in the case of a traffic speed analyser that was, at the time of measurement, mounted in a fixed housing—during the period of 27 days immediately following that day; or
(ii) in any other case—on the day following that day,
whether or not the speed measured differed from the speed in relation to which the analyser was tested or the circumstances of the measurement differed in any other respect from the circumstances of the test;
Conduct of the trial
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.
The device used by the police officer was a device approved pursuant to the RTA. 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. He made a record of this testing in his notebook. The police officer’s evidence was accepted by the magistrate.
At trial the police tendered a certificate of accuracy signed by Chief Inspector Quinn pursuant to s 175(3)(ba) of the RTA.[1] 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.[2] Police also tendered that Australian standard.[3] Appendix A of the standard 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[4] and Chief Inspector Quinn.[5]
[1]    The certificate was admitted as exhibit P1.
[2]    The calibration report was admitted as exhibit P2.
[3]    The standard was admitted as exhibit P10.
[4]    The certificate was admitted as exhibit P8.
[5]    The certificate was admitted as exhibit P9.
At trial certain facts were agreed as follows:[6]
[6]    Exhibit P11.
1.On 12 August 2013 prior to signing Exhibit P1, Chief Inspector A. Quinn sighted the following documents:
(a)     Exhibit P8 – page 2 of PD 477 completed by S/C Goldsmith
(b)     Exhibit P2 – Calibration Report for Ultralyte 100LR Laser Speed Gun serial number UX010732
(c)     The notebook of S/C Goldsmith which contained the following entries:
“SN UX010732
Cal 25/11/11
Test 1530 hrs 14/9/12
22137 14/9/12
EHPS by Goldsmith”
2.After sighting the documents referred to in paragraph (1) above Chief Inspector Quinn completed page 3 of PD 477: Exhibit P9.
3.The only documents shown to Chief Inspector A. Quinn recording the testing of the Ultralyte Laser Speed Gun serial number UX010732 were the notebook and Exhibit P8.
4.Had Chief Inspector A. Quinn given evidence he would have said that the testing recorded as being conducted by S/C Goldsmith in the notebook entries and Exhibit P8 did not show the device to be accurate within a limit of error not exceeding plus 2 or minus 3 kilometres an hour.
5. Had Chief Inspector A. Quinn given evidence he would have said that on 12 August 2013 he certified that the Ultralyte 100LR Speed Gun serial number UX010732 was shown by the test to be accurate within a limit of error not exceeding plus 2 or minus 3 kilometres an hour in reliance only upon the information contained in Exhibit P2, namely that ‘the accuracy of this traffic speed analyser is within the specification of Clause 2.6.1(a) “For Kilometres per hour, + 2, - 3 km/h” as per the Australian Standard for Laser-speed detection devise AS 4691.1-2003.
6.Had Chief Inspector A. Quinn given evidence he would have said that he would not have signed Exhibit P1 and certified that the Ultralyte 100LR Laser Speed Gun serial number UX010732 ‘was shown by the test to be accurate within a limit of error not exceeding plus 2 or minus 3 kilometres an hour’ if he had not been given a copy of Exhibit P2. He would have said that this was because the field testing recorded in the notebook entries of S/C Goldsmith and on Exhibit P8 did not show the test to be accurate within a limit of error not exceeding plus 2 or minus 3 kilometres an hour.
7. The Australian Standard for Laser-speed detection devices AS 4691.1-2003 referred to in Exhibit P2 was the standard applicable to the Ultralyte 100LR Laser Speed Gun serial number UX010732 from the 25 November 2011 and up to and including 14 September 2012. Exhibit P10.
[Emphases in original, citations omitted].
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.
Reasons of the magistrate
The magistrate found that it was not possible for Chief Inspector Quinn to certify that the testing performed on 14 September 2012 was “accurate within a limit of error not exceeding plus 2 or minus 3 kph”. He said:
[42]That the fixed distance zero velocity testing performed by SC Goldsmith does not reveal the accuracy in terms of limit of error not exceeding plus 2 or minus 3 kph.   That his tests did not amount to the testing required in order to measure a target’s speed to the relevant set of accuracy criteria set out at Clause 2.6.1(a) and Appendix A of the Australian Standard.
[43]That Ex P2 could not be used to certify the level of accuracy of the Lidar device because the testing referred to therein was not testing that occurred either on the day of the charged offences or the day after. Further Ex P2 could not assume the status of a certificate as it was not signed by the Police Commissioner or any other police officer of or above the rank of Inspector.
[44]That in the light of CI Quinn’s admission that he would not have signed Ex P1 if the only information given to him had been the record of field testing conducted by SC Goldsmith because this did not show the test to be accurate within the limit of error not exceeding plus 2 or minus 3 kph, it must follow that CI Quinn signed Ex P1 on the erroneous basis that he considered that it was the calibration report Ex P2 that enabled him to make the certification.
[45]A certificate under s.175(3)(ba) can only be used to prove the accuracy of the Lidar device ‘to the extent indicate in the document’.
[46]The line of cases referred to leave open the proposition that the agreed facts in this case at Ex P11, particularly numbers 4, 5, 6 & 7, together with Ex P10 can be used by defence as evidence to provide a basis for establishing ‘proof to the contrary’ for the purposes of s.175(3)(ba) RTA.
[47]Indeed I am satisfied on the balance of probabilities that this evidence is sufficient to displace the presumption of the level of accuracy on the basis that it establishes
a.     That the fixed distance zero velocity testing cannot form a basis of certification of the extent of accuracy of the Lidar device in terms of a limit of error of plus 2 and minus 3 kph on the day of the charged offences or the following day, and
b.     That the calibration report Ex P2 cannot form such a basis, because the testing referred to therein was not testing that occurred either on the day of the charged offences or the day after. As well and in any event Ex P2 itself cannot assume the status of a certificate as it was not signed by the Police Commissioner or any other police officer of or above the rank of Inspector.
[48]In other words I am satisfied that there is evidence which establishes that the testing did not show the Lidar device to be accurate within the stated limit of error.
[49]I am further satisfied that in the absence of evidence of limit of error I cannot find proved beyond reasonable doubt the precise, or range of speed of the vehicle.
[50]Further, while the Defendant admitted to speeding, the nature of the charges to which he has pleaded requires a precise speed or a range of speeds to be able to be calculated. Such matters cannot be proved from the Defendant’s admission of speeding or from imprecise observations of the vehicle contained in the evidence.
[51]Without reliable evidence from which the speed or range of speed of the vehicle can be calculated both counts are incapable of proof beyond reasonable doubt.
The appeal
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. The appellant submits that the magistrate fell into error by confusing an absence of evidence of the facts certified by Chief Inspector Quinn with proof to the contrary of those facts. The appellant submits that the magistrate erred because there was not sufficient evidence to prove that the speed gun was not accurate to the extent indicated in the s 175(3)(ba) certificate.
Approach on appeal
The appeal is by way of re-hearing. The nature of such an appeal was considered in Martin v Department of Transport, Energy and Infrastructure.[7] White J said:[8]
In short, on appeals against conviction under s 42 of the Magistrates Court Act, this Court is required to conduct a real review of the evidence put before the Magistrate. On issues which involved an assessment of the quality and reliability of a witness, this Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given. However, the fact that a Magistrate reached his or her conclusion by an acceptance of the evidence of the witnesses of one party does not prevent this Court carrying out its statutory function. There may be cases in which incontrovertible facts or uncontested testimony or the glaring improbability of the Magistrate’s conclusion will, despite the Magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, if the question is one of inferences to be drawn from facts found or which are not in dispute, this Court can substitute its decision if it comes to a different conclusion as to the correct inference to be drawn.
[Citations omitted].
[7] [2010] SASC 141, (2010) 269 LSJS 403.
[8] [2010] SASC 141 at [38], (2010) 269 LSJS 403 at 410.
Section 175(3)(ba) of the RTA
Section 175(3)(ba) creates a rebuttable statutory presumption as an evidentiary aid in the proof of proceedings for offences against the RTA. I considered the operation of s 175(3)(ba) in Police v Butcher.[9] I said:[10]
It provides that a document produced by the prosecution and purporting to be signed by a relevant police officer and purporting to certify that a specified traffic speed analyser had been tested on a specified day, and was shown by the test to be accurate to the extent indicated in the document, constitutes proof of the facts certified and that the traffic speed analyser was accurate to the extent indicated in the document on that day unless the person charged proves to the contrary. A submission that the police officer could not, as a matter of fact, have been satisfied of the matters certified in the document misunderstands the very intent and purpose of the statutory provision. The purpose of the certificate is to establish a statutory presumption without regard to the facts. In effect, it reverses the onus of proof. It shifts the onus to the person charged to discharge the evidentiary burden of disproving the facts certified in the document. That is not achieved by pointing to the absence of sufficient evidence of the facts certified before the relevant police officer. The operation of s 175(3)(ba) requires the accused person, if he is to discharge the evidentiary burden that the provision has shifted to him, to prove on the balance of probabilities the contrary of the facts certified.
[9] [2014] SASC 85, (2014) 119 SASR 509.
[10] [2014] SASC 85 at [65], (2014) 119 SASR 509 at page 520-521.
The operation of s 175(3)(ba) also was considered in Police v Young.[11] Peek J said that in the absence of proof to the contrary the admission into evidence of a valid certificate will prove in relation to a specified traffic speed analyser used for the purpose of measuring the speed of any motor vehicle (not being mounted in a fixed housing):
·That the specified testing was carried out on the specified occasion;
·That the specified testing established that the specified traffic speed analyser was, on the day on which it was so tested, accurate to the specified extent; and
·The specified traffic speed analyser was accurate to that same specified extent (whether or not the speed measured differed from the speed in relation to which the analyser was tested or the circumstances of the measurement differed in any other respect from the circumstances of the test) on the day following that day.
[11] [2012] SASC 210, (2012) 114 SASR 567.
Peek J described the second of these presumptions as the main presumption. He referred with approval to the reasons of White J in Police v Bulgin[12] who held that s 175(3) imposed on a defendant a persuasive onus of establishing on the balance of probabilities proof of the contrary of the facts identified in the statutory presumption. This required the defendant to do more than merely adduce or point to some evidence to the contrary in order to displace the operation of the presumption or to deny the availability of the statutory aid to proof.
[12] (2010) 55 MVR 511 at [46].
Peek J then turned to a consideration of the ways in which a defendant can negate the statutory presumption in s 175(3)(ba). He referred to four categories of evidence which may constitute proof to the contrary of the presumptive facts. Relevantly this appeal concerns the first category identified by Peek J which involves impugning the testing process. Peek J said that the main presumption created by s 175(3)(ba) may be defeated if there is sufficient evidence that the specified tests did not occur at all or, if they did occur, they were not capable of establishing, or did not establish, the specified level of accuracy.[13] He said that if a defendant can point to sufficient evidence in the case that the specified tests were not capable of establishing, or did not establish, the specified level of accuracy, the main presumption may ipso facto fall to ground.[14]
[13] [2012] SASC 210 at [56], (2012) 114 SASR 567 at 581.
[14] [2012] SASC 210 at [61], (2012) 114 SASR 567 at 582.

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.
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.