Police v Butcher

Case [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…

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Police v Butcher [2014] SASC 85
Case
[2014] SASC 85
Decision Date

CaseChat Overview and Summary

In Police v Butcher, the court was called upon to consider an appeal against the decision of a magistrate who dismissed charges against the appellant. The primary issue before the court was whether there was sufficient evidence to convict the appellant on the first count and to find a case to answer on the second count. The appellant argued that the evidence from the traffic officer, who used a laser gun to measure the speed of the appellant's vehicle, was sufficient to uphold the conviction, even without a certificate of calibration. The officer testified that the device was working correctly and that he had tested it at the beginning and end of his shift.

The court examined whether the common law presumption of the accuracy of scientific instruments applied to the laser gun used in this case. The court found that the laser gun was not an instrument of the same reliability as more commonly used scientific instruments such as thermometers or clocks. Additionally, the court noted that legislative provisions governing the use of such devices may override any common law presumptions. Consequently, the court held that the magistrate erred in dismissing the charges without sufficient evidentiary support. The court allowed the appeal, set aside the magistrate's orders, and remitted the matter for rehearing before another magistrate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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