Police v Butcher
[2014] SASC 85
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BUTCHER
[2014] SASC 85
Judgment of The Honourable Justice Stanley
3 July 2014
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
The respondent was charged on complaint with driving at a speed dangerous to the public (count 1) and driving at a speed of 45 kilometres or more in excess of the speed limit (count 2).
A magistrate dismissed both counts. The appellant appealed the dismissal of the charge on count 1. Subsequently the appellant sought to amend the notice of appeal to appeal the dismissal of the charge on count 2. Any appeal in relation to count 2 is out of time. Accordingly, the amendment sought effectively constitutes an application to extend the time within which the appeal in relation to count 2 is instituted. The respondent did not oppose the amendment.
Whether an extension of time within which to bring the appeal should be granted.
Held:
It is in the interests of justice that the notice of appeal be amended in the manner sought. There is no unfair prejudice occasioned to the respondent by permitting an extension of time (at [11]-[13]).
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - GENERALLY
The trial of the respondent commenced on 12 August 2013 before a magistrate. During the course of the hearing, on the first day of trial, the appellant tendered a certificate of accuracy of traffic speed analyser (the certificate) pursuant to s 175(3)(ba) of the Road Traffic Act 1961 (SA). Counsel for the respondent objected to the admission of the certificate. The matter was adjourned to 9 September 2013 to argue the admissibility of the certificate on the voir dire. After hearing evidence and argument on that date, the magistrate excluded the certificate. The basis of the magistrate’s reasons for her ruling in excluding the certificate from evidence concerns the unfairness to the respondent of admitting the document. The respondent then made a submission of no case to answer. The matter was adjourned to 28 October 2013 when the magistrate ruled that there was a case to answer on count 1. On 6 November 2013 the magistrate ruled that there was no case to answer on count 2 and dismissed that count. The matter was adjourned to 20 March 2014 when the magistrate delivered judgment dismissing the complaint in relation to count 1.
The appellant contends that the magistrate erred in dismissing the two counts, and that the discretion to exclude the certificate miscarried.
Whether the appeal is competent. Whether the magistrate erred in concluding that there was unfairness to the respondent in the admission of the certificate. Whether the certificate is admissible. Whether the magistrate’s discretion miscarried in excluding the certificate. Whether the magistrate should have been satisfied of the accuracy of the traffic speed analyser.
Held (allowing the appeal):
1. There is no foundation for a submission that an appeal against an interlocutory ruling of this kind is incompetent. The appeal is competent (at [19]-[25]).
2. The magistrate erred in concluding that there was any unfairness to the respondent in the admission of the certificate (at [46]-[56]).
3. The certificate is admissible (at [63]-[69]).
4. The magistrate’s discretion miscarried in excluding the certificate (at [70]).
5. A traffic speed analyser is not a device of common use. General experience does not know that the accuracy of such a device is trustworthy (at [73]).
Road Traffic Act 1961 (SA) 175; Magistrates Court Act 1991 (SA) 3; 42, referred to.
Police v Dorizzi & Ors (2002) 84 SASR 416, distinguished.
R v Lobban (2000) 77 SASR 24; Bunning v Cross (1978) 141 CLR 54; R v Christie [1914] AC 545; R v Swaffield (1998) 192 CLR 159; Elliott v Police [2009] SASC 292; Martelli v Police [2007] SASC 21; Kulikovsky v Police [2010] SASC 58; Redman v Klun (1979) 20 SASR 343, discussed.
Key v Police [2010] SASC 192; McDonald v Camerotto (1984) 36 SASR 66; Driscoll v The Queen (1977) 137 CLR 517; Alexander v The Queen (1981) 145 CLR 395; Stephens v The Queen (1985) 156 CLR 664; HML v The Queen (2008) 235 CLR 334; Camilleri v Wilkinson (1984) 35 SASR 270, considered.
POLICE v BUTCHER
[2014] SASC 85Magistrates Appeal
STANLEY J:
Introduction
The respondent was charged on complaint with driving at a speed dangerous to the public (count 1) and driving at a speed of 45 kilometres or more in excess of the speed limit (count 2).
A magistrate dismissed both counts. The appellant appealed the dismissal of the charge on count 1.
Subsequently the appellant sought to amend the notice of appeal to appeal the dismissal of the charges on counts 1 and 2. Any appeal in relation to count 2 is out of time. Accordingly, the amendment sought effectively constitutes an application to extend the time within which the appeal in relation to count 2 is instituted.
The respondent does not oppose the amendment. Nonetheless, it is necessary to consider the history of the matter in order to determine whether the amendment should be granted and the time limit effectively extended.
Extension of time
The trial of the respondent commenced on 12 August 2013 before a magistrate. During the course of the hearing, on the first day of trial, the appellant tendered a certificate of accuracy (the certificate) pursuant to s 175(3)(ba) of the Road Traffic Act 1961 (SA) (the Act). Counsel for the respondent objected to the admission of the certificate. The matter was adjourned to 9 September 2013 to argue the admissibility of the certificate on the voir dire. After hearing evidence and argument on that date, the learned magistrate excluded the certificate. The respondent then made a submission of no case to answer. The matter was adjourned to 28 October 2013, when the learned magistrate ruled that there was a case to answer on count 1. On 6 November 2013 the learned magistrate ruled that there was no case to answer on count 2 and dismissed that count. The matter was adjourned to 20 March 2014, when the learned magistrate delivered judgment dismissing the complaint in relation to count 1.
The appellant instituted its appeal on 7 April 2014. As I have observed, that appeal was against the dismissal of the charge on count 1.
The limitation period in respect of any appeal from the dismissal of count 2 expired on 27 November 2013. At that time no judgment had been delivered in relation to the complaint on count 1. Any appeal brought at that stage would have been brought prior to the proceedings being finalised.
The appellant seeks permission to amend the notice of appeal so as to include an appeal from the learned magistrate’s decision to dismiss count 2. In effect this is an application for an extension of time. I propose to deal with the application to amend the notice of appeal by reference to the considerations which would apply to an application for an extension of time within which to bring the appeal. Such an application would require consideration of the length of the delay, the reasons for the delay, the merits of the appeal and the interests of justice.[1]
[1] Key v Police [2010] SASC 192.
The appeal was instituted on 7 April 2014. This is a period of over four months after the expiry of the limitation period within which to appeal. The length of the delay is substantial. However, I am persuaded that by reason of the explanation for the delay, the merits of the appeal and the interests of justice, it is appropriate that an appeal against the dismissal of count 2 should proceed.
The appellant did not seek legal advice in relation to this matter until after the dismissal of count 1 on 20 March 2014. The Crown Solicitor’s Office did not obtain transcript of the proceedings until 2 May 2014 and the brief was not considered by counsel until 19 May 2014. Upon consideration of the transcript, the application for permission to amend the notice of appeal, in effect to seek an extension of time within which to appeal the dismissal of count 2, was filed on 19 May 2014.
In my view, the dismissal of the complaint in relation to count 1 and count 2 are interrelated. In any event, count 2 was laid in the alternative to count 1. The respondent could not have been convicted on both counts. The legal issue that arises in relation to the dismissal of both counts is identical as both counts were dismissed because the learned magistrate found the prosecution had failed to prove the speed at which the respondent was alleged to have driven following the exclusion of the evidence of the certificate.
For the reasons that follow I am satisfied that there is merit to the appeal. In the circumstances, I consider it is in the interests of justice that the notice of appeal be amended in the manner sought. There is no unfair prejudice occasioned to the respondent by permitting an extension of time. The respondent did not submit to the contrary.
I am satisfied that it is appropriate to amend the notice of appeal so as to permit an extension of time to the appellant to bring an appeal from the dismissal of the complaint in relation to count 2.
Competency of the appeal
The respondent submits that the appeal is incompetent.
Ms Stanley, counsel for the respondent, submits that in effect the appeal is against the learned magistrate’s ruling excluding the certificate of accuracy.
She submits that the magistrate’s ruling was an interlocutory judgment. She submits s 42 of the Magistrates Court Act 1991(SA) prohibits appeals from an interlocutory judgment. The respondent relies upon the Full Court’s judgment in Police v Dorizzi & Ors.[2]In that case the respondents were charged with several counts of assault. The assaults allegedly occurred near a nightclub and were recorded on video tape by security cameras. The Crown sought to tender the tapes. After a voir dire hearing, the magistrate ruled that the tapes should be excluded. Without calling any further evidence, the Crown closed its case and conceded that there was insufficient evidence on which it could proceed on the charges. It did so on the basis that it intended to appeal against any dismissal of the information. The magistrate dismissed the information for want of prosecution. On appeal, a single judge of this Court held that the tapes should not have been excluded. The judge allowed the appeal and set aside the orders made by the magistrate. One of the accused applied subsequently to the Full Court for leave to appeal. Leave was granted but restricted to the issue of whether the appeal was competent having regard to s 42 of the Magistrates Court Act.
[2] [2002] SASC 356, (2002) 84 SASR 416.
The Court allowed the appeal. Duggan J, with whom Debelle and Williams JJ agreed, held that while the appeal, on its face, was an appeal against the dismissal of the information, its true purpose was to test the magistrate’s ruling on the admissibility of the video tapes. Such an appeal was incompetent as it was contrary to the intent and purpose of s 42. His Honour said:[3]
The appeal from the magistrate to the single judge did not purport to be other than an appeal against a final judgment, namely, the dismissal of the information. However, when the veil is lifted to reveal the true nature of the appeal, it is clear that its purpose was to test the magistrate's ruling on admissibility. It was always the intention of the prosecution to seek a favourable decision on this issue on appeal and an order that there be a retrial on the charges. The prosecution was motivated by what appeared to be practical reasons for this approach. It was considered inappropriate to call a large number of witnesses after the magistrate's ruling when there was a clear possibility, or even likelihood, that, at least in the case of some of the appellants, there would not have been sufficient evidence for a case to answer without the evidence which had been excluded. Nevertheless, for the reasons which follow, it is my view that an appeal on this basis is contrary to the intent and purpose of the appeal provisions in the Act.
As I have suggested, the appeal provisions recognise the well accepted principle that, as a general rule, proceedings in trial courts should not be fragmented as a result of appeals against interlocutory judgments or rulings on admissibility. It is a consequence of this principle that hitherto the invariable practice has been for the prosecution to establish a case at first instance before initiating an appeal against acquittal.
[3] [2002] SASC 356 at [20] – [21], (2002) 84 SASR 416 at 420.
Duggan J considered that while the appeal was formally against the order dismissing the charges, it was conceded on the hearing of the appeal that the dismissal was correct in that there was insufficient evidence to make out a case to answer, even if the video evidence had been admitted. This was because the prosecution elected upon the adverse ruling in relation to the video tapes not to call any evidence. It was in those circumstances that the Full Court held it was inappropriate to allow any appeal against a dismissal of charges when the prosecution had not established a case to answer at first instance.
In my view, there are three answers to the respondent’s submissions.
First, this case is readily distinguishable from Dorizzi. The police in this case adduced evidence from the police officer who allegedly detected the respondent driving at a speed which formed the basis of the two charges. In her reasons for decision dismissing count 1, the learned magistrate makes clear that had the original speed alleged or something near to that speed been proven, she would have found the charge proved beyond reasonable doubt. Accordingly, the basis upon which the Court in Dorizzi allowed the appeal does not exist in this case.
Secondly, in any event, the appeal is not against the interlocutory ruling excluding the evidence but against the orders dismissing the charges on the complaint. Given my views as to the basis upon which this matter is distinguishable from Dorizzi, the approach taken in Dorizzi to the true nature of the appeal cannot apply in this case.
Thirdly, subsequent to Dorizzi s 42 of the Magistrates Court Act has been amended. Section 42(1a) has been inserted into the Act. It provides:
(1a) An appeal does not, however, lie against an interlocutory judgment unless—
(a) the judgment stays the proceedings; or
(b) the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c) the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
“Interlocutory judgment” is defined in s 3(1) of the Magistrates Court Act to include an interlocutory order and an order or ruling relating to the admissibility or giving of evidence.
In those circumstances, there is no foundation to the submission that an appeal against an interlocutory ruling of this kind is incompetent.
In my view, the appeal is competent.
Exclusion of the certificate
Critical to the dismissal of both counts was the magistrate’s ruling excluding the certificate as evidence in the trial.
The evidence before the magistrate from Constable Goldsmith was that he detected the respondent driving on Helps Road, Burton on 14 September 2012 at a speed of 102 kilometres per hour using an Ultralyte laser speed gun. The speed limit on Helps Road at that position was 50 kilometres per hour.
Constable Goldsmith further gave evidence that twice on 14 September 2012 he conducted a test to satisfy himself as to the accuracy of the speed gun before and after he detected the respondent driving on Helps Road.
In her reasons delivered on 20 March 2014 the learned magistrate addressed the dismissal of the charge on count 2. She said:
With respect to the charge of driving more than 45 kms over the speed limit, I found there was no case to answer. I ruled that exhibit MFI P10 was not admissible (Certificate of Accuracy of the Traffic Speed Analyser) and as a consequence of that ruling found that there was no case to answer with respect to the count 2. Count 2 had as an essential element of the offence that the defendant’s vehicle was travelling at a speed in excess of 45 kilometres over the speed limit. I formed the view that without the certificate of accuracy admitted into evidence, and without any other evidence as to the precise speed that the defendant’s vehicle was alleged to have been travelling at; there was no case to answer. Count 2 was dismissed on 6 November 2013.
In dismissing the charge on count 1 the learned magistrate held that had the original speed alleged or something near to that speed been proven, she would have found the charge of driving at a speed which was dangerous to the public proved beyond reasonable doubt. It follows from her ruling in relation to count 2 that had the magistrate admitted the certificate into evidence, she would have been satisfied beyond reasonable doubt that the respondent had been driving at a speed exceeding 45 kilometres over the speed limit.
The basis of the magistrate’s reasons for her ruling in excluding the certificate from evidence concerns the unfairness to the respondent of admitting the document.
In order to understand properly the basis of the learned magistrate’s ruling, it is important to understand that the certificate was brought into existence on 12 August 2013 after the trial had commenced. It is apparent from the affidavit of the police prosecutor, Joanna Kruk, sworn 22 May 2014 and admitted before me without objection, that the need to tender the certificate was either overlooked or not appreciated by the police prosecutor at the commencement of the trial. In the course of Constable Goldsmith giving evidence, the significance of the certificate was recognised by the police prosecutor. Steps were taken to obtain a certificate. One was obtained from Chief Inspector Quinn certifying the accuracy of the laser speed camera pursuant to s 175(3)(ba) of the Act. This was the certificate which the police prosecutor tendered that same day and which was the subject of the voir dire and the magistrate’s ruling excluding it from evidence.
In her reasons for ruling that the certificate not be admitted into evidence, the learned magistrate referred to Constable Goldsmith speaking with the prosecutor during the morning break on the first day of trial, as a result of which the certificate was prepared. She referred to the circumstances by which the certificate was brought into existence and the fact that the certificate had not been the subject of pre-trial disclosure.
The learned magistrate said:
I regard the fact of the document being prepared during the evidence in chief and without disclosure to the Court as to the circumstances of the preparation of that document is raising [sic] real questions of fairness to the defendant.
I do not suggest that there can never be circumstances in which a document is created part way through evidence in chief, or indeed an extra affidavit being prepared, but circumstances [sic] in my view would be relatively rare and should be disclosed by the witness through the leading of evidence.
Prosecution say there is no time limit for the creation of such a document and I certainly cannot see any such time in the Road Traffic Act saying when a document should be created.
In my view, it would be fairly rare circumstances in which a document would be created halfway through someone’s evidence in chief.
When defence became aware that such a document is being prepared and possibly being sought to be tendered, although it couldn’t always be the case, depending on what sort of document it is, they could seek an adjournment. An adjournment may or may not cure any questions of fairness [sic] or prejudice to a defendant.
…
At the start of this trial, there was no document that had been prepared, let alone disclosed to defence. Indeed, it could not be disclosed because it was not prepared.
…
The Court has a discretion whether to admit [the certificate]. That discretion must be exercised judicially. I have considered the question of whether to admit [the certificate] …
I have considered the question in this case and I have formed a view that there are issues as to fairness to the defendant in the defence of his case if [the certificate] is admitted into evidence.
The learned magistrate then ruled against the admission of the certificate.
Mr Grant, counsel for the appellant, submits that the learned magistrate erred in excluding the certificate from the evidence.
He accepts that it is not a question of whether I would have admitted the certificate into evidence if I had been hearing the trial. If there was material upon which the learned magistrate’s ruling may be justified, and she took into account all the relevant facts and only the relevant facts and applied the correct legal principles, then her decision must stand.[4]
[4] McDonald v Camerotto (1984) 36 SASR 66 at 75.
Mr Grant submits that the reasons of the learned magistrate for her ruling suggest that the basis of her decision to exclude the certificate was the “unfairness” discretion considered in R v Lobban.[5]
[5] (2000) 77 SASR 24.
Ms Stanley, for the respondent, while not eschewing the proposition that the learned magistrate invoked the Lobban unfairness discretion, submitted that in addition, the learned magistrate placed reliance upon the Bunning v Cross discretion.[6]
[6] (1978) 141 CLR 54.
Whatever is the case, the appellant submits that the learned magistrate fell into error in concluding that there was any scope for the exercise of the public policy discretion in Bunning v Cross or the general unfairness discretion considered in Lobban.
In Lobban, Martin J, with whom Doyle CJ and Bleby J agreed, considered the principles applicable to the discretion reposed in a court to exclude evidence in certain defined circumstances. His Honour identified three categories of discretion to exclude evidence: the public policy discretion in Bunning v Cross, the Christie discretion and a general unfairness discretion.
In Bunning v Cross the High Court identified that there exists a discretion in a trial judge to exclude evidence if that evidence was obtained by unlawful or improper conduct on the part of law enforcement authorities. The rationale underlying the exercise of the discretion to exclude evidence, if the discretion is so exercised, is that considerations of public policy may require the court to prevent the prosecution from gaining what is described as “curial advantage” by using improperly or unlawfully obtained evidence, and may require the court not to appear to approve of the illegality or impropriety by which the evidence was obtained by allowing the use of the evidence as part of the prosecution case. When the court exercises the discretion, it declines to allow the prosecution to make use of evidence obtained through illegality or impropriety, because to do so would be to allow it to benefit by its own wrongdoing, and would give the appearance of approving the relevant illegality or impropriety. But the authorities make clear, the discretion is to be exercised by the court by weighing in the balance against those considerations the importance of securing a conviction of those who commit criminal offences.
In addition to the public policy discretion identified in Bunning v Cross the authorities recognise a general discretion reposed in a judge presiding at a criminal trial to exclude evidence if the strict rules of admissibility would operate unfairly against an accused person. This is the Christie discretion.[7] The exercise of this discretion will be considered if the probative value of the evidence is exceeded by its prejudicial effect to the accused.[8]
[7] R v Christie [1914] AC 545 at 560.
[8] See Driscoll v The Queen [1977] HCA 43, (1977) 137 CLR 517; Alexander v The Queen [1981] HCA 17, (1981) 145 CLR 395 at 402; Stephens v The Queen [1985] HCA 30, (1985) 156 CLR 664.
Further, the authorities recognise there is a residual discretion to reject any evidence if the strict rules of admissibility would operate unfairly against the accused in the sense that the trial would be unfair. Defining the limits or scope of the residual discretion is less clear. Apart from confessional evidence, it has been observed that it is not easy to think of circumstances in which grounds might exist for the exercise of that residual discretion in relation to any evidence which would not fall within the Christie discretion to exclude evidence where its prejudicial effect exceeds its probative value. An example of the discretion may exist where the weight and credibility of the evidence cannot be effectively tested. Another example may exist in relation to excessively inflammatory evidence such a gruesome photographs. Nonetheless, in Lobban the Full Court recognised that a general unfairness discretion exists to exclude non-confessional evidence on the ground that to receive it would be unfair to an accused in the sense that the trial would be unfair. The existence of the discretion is not dependent upon the conduct of law enforcement authorities. An accused person is entitled to a fair trial and it is the duty of the court to attempt to ensure that the trial is fair.
In Lobban, Martin J canvasses a variety of factual scenarios which might invoke the general unfairness discretion. He reasoned that the purpose of the discretion is to ensure that an accused person receives a fair trial and is not improperly convicted.
In my view, the learned magistrate erred in excluding the certificate from admission into evidence.
I take that view irrespective of whether the magistrate excluded the evidence on the basis of a public policy discretion, or a general unfairness discretion, or both.
There was no basis in this case, as a matter of principle, to invoke the public policy discretion.
It is unclear whether the learned magistrate was invoking the public policy discretion in Bunning v Cross. There is at least a whiff of a suggestion of prosecutorial and/or police misconduct in the learned magistrate’s reference to the certificate being prepared during evidence-in-chief and without disclosure to the Court as to the circumstances of the preparation of that document as raising real questions of fairness to the respondent. However, the magistrate’s reasons are somewhat oblique on this topic. I am not sure that she was invoking the Bunning v Cross discretion. If she was, I am of the view there was no basis to do so. There was nothing improper, let alone unlawful, in the circumstances in which the certificate was created, produced and tendered. Before the appellant closed its case, it recognised it had overlooked the necessity to tender the certificate and took steps to do so. This was not an occasion to exclude evidence for the purposes of preventing law enforcement authorities from gaining a “curial advantage”.
Neither was there any basis, in this case, as a matter of principle, to invoke the general unfairness discretion.
The basic principle of admissibility of evidence is that, unless there is some good reason for not receiving it, evidence that is relevant is admissible. Evidence that is not relevant is inadmissible. There is then no occasion to consider any more particular rule of exclusion. Reasons for not receiving relevant evidence may relate to its content or to the form or circumstances in which it is tendered. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. That directs attention, in a criminal case, to the elements of the offence charged, the particulars of those elements, and any circumstances which bear upon the assessment of probability.[9]
[9] HML v The Queen [2008] HCA 16 at [5]; (2008) 235 CLR 334 at 351.
Unfairness can be a vague and protean concept. It has been said that the application of the unfairness discretion is uncertain because courts have failed to define the policy behind the discretion or considerations relevant to it.[10] However, in R v Swaffield[11] Toohey, Gaudron and Gummow JJ said the fairness at issue in cases involving the exercise of a discretion to exclude evidence is the fairness of the trial, in the sense of a trial that does not involve a perceptible risk of a miscarriage of justice.
[10] R v Swaffield [1998] HCA 1 [66]; (1998) 192 CLR 159 at 193.
[11] R v Swaffield [1998] HCA 1 [64]; (1998) 192 CLR 159 at 193.
The general unfairness discretion does not confer upon the court a discretion to exclude evidence according to any general conception on the part of the judge as to whether it is unfair to admit the evidence in issue. The discretion is founded in the overriding obligation of the judge presiding at a criminal trial to ensure that the conduct of the trial does not occasion a miscarriage of justice.
The allowance of admissible evidence relevant to an issue before the court and of substantial probative value may operate unfortunately for the accused, but not unfairly. It is only the allowance of evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling, which can be said to operate unfairly.[12]
[12] R v Swaffield [1998] HCA 1 [64]; (1998) 192 CLR 159 at 192 – 193.
The only basis upon which it can be concluded that there was unfairness in the conduct of the trial in admitting the certificate is that the respondent entered a plea of not guilty and put the appellant to proof of the charges on an understanding that the appellant had not disclosed pre-trial the existence of a certificate. Accordingly, the respondent proceeded to trial on the premise that there was a forensic lacuna in the appellant’s case and the trial would have been rendered unfair to permit the appellant to plug that evidentiary gap by tendering evidence created for that very purpose after the trial had commenced.
The learned magistrate erred in concluding that there was any unfairness to the respondent in the admission of the certificate. The certificate plainly was probative of a fact in issue in the prosecution for each count, namely, the speed at which the respondent allegedly was driving. Having identified the need to tender this evidence before the close of the appellant’s case, and procuring the evidence for that purpose, does not occasion any unfairness of the relevant kind enlivening the residual discretion to exclude evidence in order to ensure the respondent received a fair trial. As I have said, the circumstances surrounding the creation, production and tender of the certificate, could not give rise to an improper conviction or the risk of a miscarriage of justice. Any prejudice occasioned by the late production and disclosure of the certificate could be cured by an appropriately crafted order for costs.
The learned magistrate relied upon two decisions of this Court, Elliott v Police[13] and Martelli v Police.[14]The respondent submits that these decisions are authority for the principle that it was within the learned magistrate’s discretion to exclude the certificate in the circumstances of this case. I do not agree. Both cases were concerned with the reopening of the prosecution case to tender a certificate pursuant to s 175(3)(ba). In Elliott a certificate had been tendered in the course of the prosecution case. After the close of the prosecution case it was realised that the certificate was incorrectly dated. The magistrate permitted the prosecution to reopen its case in order to tender a correctly dated copy of the certificate. An appeal against the exercise of the magistrate’s discretion in this regard was dismissed. In Martelli the prosecution failed to tender a certificate in its case due to oversight. After the close of its case, having realised the oversight, it applied to reopen its case to tender a certificate and call further evidence in support of the certificate. The magistrate allowed the prosecution to reopen its case for this purpose. This Court allowed an appeal on the exercise of the magistrate’s discretion.
[13] [2009] SASC 292.
[14] [2007] SASC 21.
Both of these cases are concerned with reopening a case after the prosecution has closed in order to tender a certificate pursuant to s 175(3)(ba). Whether reopening is permissible depends upon the circumstances of the case and what the interests of justice require.[15] In McDonald v Camerotto[16] this Court considered the circumstances in which the Court will permit a prosecutor to reopen a case to correct an error where it results from an oversight or misunderstanding. Generally, this will be permitted where there is no question of the defendant’s case being prejudiced.
[15] Camilleri v Wilkinson (1984) 35 SASR 270 at 276.
[16] (1984) 36 SASR 66.
In my view these cases do not stand for any general principle relevant to the disposition of this appeal. This appeal is not concerned with any question of reopening the prosecution case. The prosecution sought to tender the certificate in its own case. Elliott and Martelli are merely examples of decisions on their own facts. That this is so can be demonstrated by consideration of this Court’s decision in Kulikovsky v Police.[17]In that case the Court dismissed an appeal from a conviction of driving in excess of the speed limit in which the prosecution tendered a certificate pursuant to s 175(3)(ba) different in terms from a certificate which it had disclosed to the defendant pre-trial. In addition, in that case the magistrate had permitted the prosecution to reopen its case after the defence case to call further expert evidence in rebuttal of expert evidence given by the defendant as to the accuracy or otherwise of the laser gun device used to measure the speed at which the defendant was driving.
[17] [2010] SASC 58.
Kulikovsky does not stand for any general principle applicable to the exercise of the magistrate’s discretion in this case. I refer to it merely to demonstrate that there are a plethora of cases which consider the exercise of a court’s discretion in admitting evidence after the close of a prosecution case. None of these cases demonstrate that the learned magistrate did not err as a matter of principle in excluding the evidence of the certificate in the prosecution case in the circumstances of this matter.
In the alternative, the respondent submits that there was an additional basis upon which the certificate should have been excluded. The statutory basis for the tender of the certificate is s 175(3)(ba) of the Act. It provides:
(3) In proceedings for an offence against this Act—
…
(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;
…
The respondent submits that the magistrate should have found that the statutory presumption in s 175(3)(ba) was displaced because the officer who signed the certificate, Chief Inspector Quinn, could not have been satisfied that the traffic speed analyser had been tested for its accuracy as required. He submits that Constable Goldsmith gave evidence of providing Chief Inspector Quinn with a copy of his notebook, the calibration certificate and either the apprehension report or he informed him that an apprehension report had been created. In reliance on those documents Chief Inspector Quinn signed a certificate, but Constable Goldsmith’s notebook only contained the word “test” and a record of two times, being 1530 hours and 2137 hours on 14 September 2012. Without evidence of the actual tests performed and the results of those tests, Chief Inspector Quinn was unable to certify the facts contained in the certificate. In these circumstances, the statutory presumption was rebutted. The appellant failed to adduce evidence proving the accuracy of the traffic speed analyser. Accordingly, the respondent submits that the certificate was inadmissible.
There are two flaws in this argument.
First, this submission misunderstands the operation of s 175(3)(ba).
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. But the shifting of the onus only occurs once the certificate has been admitted into evidence. There can be no issue as to its admissibility on the basis that there is evidence to the contrary of the facts certified in the document.
Secondly, this submission fails to take account of the material that was before Chief Inspector Quinn. Constable Goldsmith gave evidence that he provided Chief Inspector Quinn with a Lidar certificate for the purpose of obtaining the s 175(3)(ba) certificate. That certificate formed part of the document that was excluded by the learned magistrate. It records that Constable Goldsmith tested the Ultralyte laser speed gun used by him to measure the speed of the respondent’s vehicle at 1530 hours on the day of the alleged offence and further tested its operation at 2137 hours on that day. The test showed the device was operating correctly. In my view, if it was necessary for the admissibility of the certificate, which I do not think it was, the provision of that Lidar certificate to Chief Inspector Quinn constituted a sufficient basis for him to certify that the device was tested on that date and was shown by the test to be accurate to the extent indicated in the document.
Further, the respondent submits that the certificate was inadmissible because it was not proved that Constable Goldsmith had the relevant expertise to conduct the testing of the device for accuracy. The respondent relies upon the evidence of Constable Goldsmith under cross-examination as to the part of the car at which he was pointing the laser when he recorded the speed at which the respondent’s vehicle was travelling:
Q.Do you know if you would get a different reading if it was pointed at the tyre.
A.I believe these are probably questions for an expert.
Q.I am asking you these questions; you have said that you were trained –
A.Well, I am not qualified to –
Q.- in 2006 and you have received subsequent training on the Lidar device.
The respondent submits that the learned magistrate could not have been satisfied on the basis of this evidence that Constable Goldsmith had the relevant expertise to conduct the testing of the device as to its accuracy.
In my view, this submission cannot succeed. The officer’s evidence goes no further than that it was beyond his expertise to answer a particular question as to whether you would get a different reading as to speed depending on which part of the car the device was pointing. It does not follow that he lacked the expertise to test the accuracy of the device. The statutory presumption established by s 175(3)(ba) is not displaced.
Finally, the respondent submits that even if the certificate was wrongly excluded, it did not result in a miscarriage of justice as the prosecution had ample opportunity to adduce evidence to fill the forensic lacuna caused. It failed to avail itself of that opportunity. I do not accept this submission. In my view, the certificate was admissible. Plainly it was relevant. The learned magistrate’s discretion miscarried in excluding it. The matter must be remitted for a retrial according to law.
This is sufficient to allow the appeal. However, I should nonetheless address the additional arguments put by the appellant.
Sufficient evidence to convict on count 1 and to find a case to answer on count 2?
The appellant submits that even with the exclusion of the certificate, there was sufficient evidence before the learned magistrate to prove count 1 and to find a case to answer on count 2. This submission is put on the basis that Constable Goldsmith had given evidence of the reading of 102 kilometres per hour on the device. He photographed that reading and that photograph was admitted into evidence. He gave evidence that he had tested the device at the beginning and end of his shift and it had been found to be working correctly. The learned magistrate found Constable Goldsmith to be an honest and credible witness. The appellant submits the device used was a scientific instrument. The appellant sought to rely upon the common law presumption in favour of the accuracy of scientific instruments in common use such as the Lidar laser traffic speed analyser.
There are two answers to this submission. First, the device is not an instrument in common use such as scales, a watch, clock or thermometer. Even allowing for the acceptance by the Full Court in Redman v Klun[18] that a speedometer is an instrument in a class of a scientific or technical character which, by general experience, is known to be trustworthy so that the presumption in favour of the accuracy of the instrument operates, I am not satisfied that the common law presumption operates in favour of this laser gun device. It is not a speedometer. I am not persuaded that general experience knows this particular device, the Ultralyte 100 LR laser gun, is trustworthy as far as its accuracy is concerned. I am unaware of any authority to the contrary. Secondly, even if I am wrong, I consider that the plethora of legislative aids to proof in relation to instruments of this kind found in the Act and the regulations made thereunder displaces the common law presumption.
[18] (1979) 20 SASR 343.
Conclusion
I would allow the appeal. I would set aside the order made by the magistrate on 20 March 2014 dismissing the charge on count 1. I would set aside the order made by the magistrate on 6 November 2013 dismissing the charge on count 2. I would remit the matter to the Magistrates Court for rehearing before another magistrate. I will hear the parties as to costs.
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