Police v Dinovitser

Case [2016] SASC 77

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v DINOVITSER

[2016] SASC 77

Judgment of The Honourable Justice Peek

14 June 2016

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS

TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED

EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - STATUTORY PROVISIONS AS TO PRIMA FACIE EVIDENCE - OTHER PROVISIONS - TRAFFIC OFFENCES

Appeal against conviction.

The appellant was charged with a speeding offence against r 20, Australian Road Rules and s 79B, Road Traffic Act 1961. A traffic speed analyser registered his motor vehicle to be travelling at 104 kilometres per hour in a 90 kilometre per hour speed zone. The trial in the Magistrates Court proceeded by way of a certificate procedure and the prosecutor did not call any witnesses. The appellant complained about the lack of evidence about the testing and calibration processes used, and objected to the admission of certificates under s 175, Road Traffic Act 1961. The appellant was given an opportunity to apply for an adjournment and the issue of a subpoena against the police for further evidence relating to the police processes, but declined to do so. The Magistrate admitted the certificates and, in ex tempore reasons, convicted the appellant of the charge.

The appellant contends that the s 175 certificates were inadmissible because they did not indicate how the test was carried out, and did not indicate the degree of the accuracy claimed in the sense of the maximum possible deviation from the true value.

Discussion as to the extent to which a degree of inaccuracy shown by the testing process may lead to acquittal of the charge.

Held (dismissing the appeal):

1. The certificates were in proper form and complied with the requirements of s 175, Road Traffic Act 1961. They were admissible and relieved the prosecution of the need to call evidence or witnesses as to testing, calibration and other matters.

2. A defendant may defeat the presumption arising from a valid s 175 certificate by taking the proactive course of adducing evidence sufficient to constitute “proof to the contrary”. The appellant was apprised of that right but elected not to do so.

3. The Magistrate was correct in finding beyond reasonable doubt that the charge was made out.

Australian Road Rules r 20; Road Traffic Act 1961 ss 79B, 175, 175(3)(b), 175(3)(ba); Magistrates Court Act 1991 s 20, referred to.
Carter v Hayes (1994) 61 SASR 451; Gaffee v Johnson (1996) 90 A Crim R 157; Police v Young (2012) 114 SASR 567; Pereth v Linnane (1983) 33 SASR 442, discussed.
Best v Police [2015] SASC 190; Police v Bulgin [2010] SASC 143; Police v Butcher (2014) 199 SASR 509; Millington v Police [2015] SASC 52; Police v Wyatt [2016] SASC 17, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"accurate"

POLICE v DINOVITSER
[2016] SASC 77

Magistrates Appeal

  1. PEEK J.    Appeal against conviction pursuant to…

Continue reading Police v Dinovitser

Sign in free to access the full text

Details
AGLC
Police v Dinovitser [2016] SASC 77
Case
[2016] SASC 77
Decision Date

CaseChat Overview and Summary

In the case of Police v Dinovitser, the defendant was charged with exceeding the prescribed speed limit. The matter was heard in the Magistrates Court and subsequently appealed to a higher court. The primary legal issue before the court was whether the certificates of accuracy provided by the police in relation to the speed detection device were admissible as prima facie evidence under the Road Traffic Act. Additionally, the court had to determine if the defendant, who had expertise in physics, could successfully challenge the accuracy of the certificates through his own expert evidence.

The court examined the statutory provisions that deem certificates of accuracy to be accurate in the absence of proof to the contrary. It noted that the defendant had the option to challenge the certificates' admissibility and accuracy but chose not to present any expert evidence or subpoena relevant police witnesses. The court held that the defendant's expert opinion, while scientifically sound, did not displace the presumption of accuracy attached to the certificates. The court emphasised that in the absence of proof to the contrary, the certificates were admissible as prima facie evidence, and the defendant's failure to provide such proof resulted in the conviction being upheld.

Ultimately, the court found that the certificates were properly admitted and sufficient to establish the offence beyond reasonable doubt. The appeal was dismissed, and the original conviction remained intact. The court underscored the adversarial nature of the prosecution process and the importance of the defendant's preparation, including the potential need for expert legal and scientific advice.

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

As will be seen below, I agree in a general way with those remarks.The defendant’s evidence as an expert witness in the Magistrates Court In Police v Young, it was noted:[8][26] … The fact is that the prosecution process is highly adversarial and the law provides that if the certificate is valid, the defendant must discharge an onus to avoid a conviction. If he fails to do so, it will not avail him to complain that the system was too hard without either representation by a skilled lawyer or the services of a competent expert witness. I must decide this case on the law as it is and the circumstances as they are, not what they might have been.…[90] … the appellant never asserted any relevant expertise and did not call any expert witness. Of course, expert evidence need not come from an expert called by the defence since it can also be obtained through cross-examination of a prosecution expert. However, in the present case, as in most cases of this type, the prosecution simply relied upon the s 175(3)(ba) certificate procedure and called no expert witness to give evidence. In circumstances such as these, the absence of a defence expert will often signal a doomed enterprise and so it was to prove here.[8] (2012) 114 SASR 567, 576 and 589. In Young, the appellant had neither scientific nor legal expertise. Here, the appellant did have scientific expertise and was accepted by the Magistrate as an expert witness in a relevant area of expertise. However, the appellant would not accept before the Magistrate, and nor would he accept on appeal, that the problem he faced was really a legal problem, rather than a scientific problem. The appellant insisted on taking the position that because it would be more scientific for the prosecution to call evidence and demonstrate the basis and methodology of procedures such as calibration and testing, it must follow that provisions such as s 175, RTA must be construed so as to require such an approach. When faced with the proposition (repeatedly put in both the Magistrates Court and this Court) that the authorities have held that his construction of the legislation is erroneous, he stubbornly persisted with it, but cited no legal authority in his favour. At trial, immediately after final addresses were concluded, the Magistrate gave the following ex tempore reasons for finding the charge proven:[17] The defendant then elected to give evidence. He had taken the time prior to coming to court to set out both his submissions and his evidence in a document that has now been tendered as Exhibit D1. Putting aside his submissions as to the admissibility or otherwise of the certificates (I have already addressed that issue) the defendant sets out that he has a PhD in Physics and an Honours Degree in Physics – his thesis being on ‘A Stabilised Master Laser System for Differential Absorption Lidar’. He then sets out the evidence that he would otherwise have given in the witness box.[18] In essence, that evidence goes to the methodology used or that should properly be used in the defendant’s view to calibrate any speed or measurement device, and that that calibration should always be taken back to a true standard. In his submissions he puts to me that the absence of a proper calibration process based upon a chain of measurement going back to a true standard means that there is in fact no measurement of accuracy in the certificates, and that I should therefore (as I understand it) have some doubt as to the accuracy of those certificates.[19] I do not really have any doubt that the methodology the defendant has put forward under the heading ‘Expert Testimony’ is more or less accurate as a process for scientifically determining the accuracy or otherwise of a device, including a speed detection device.[20] However, in my view that is not what the police need to establish in this case. To get to the point of establishing a prima facie case, the police are entitled to rely upon the certificates that they have tendered, and which I have ruled are admissible. Then once those have been tendered and are admissible in evidence, they are deemed to be accurate in the absence of proof to the contrary.[21] The defendant candidly indicates that he cannot say exactly what speed his vehicle was travelling at the time because he was not looking at his speedometer. However, he does assert in general terms that he was not speeding.[22] In my view, taking into account the evidence of the process the defendant says should be followed to determine the accuracy of the speed detection equipment and his other evidence, in my view that does not amount to evidence to the contrary sufficient to displace the certificate evidence that the prosecution are entitled to rely upon. In my view that evidence establishes, for the purposes of this charge, beyond a reasonable doubt that the defendant was the owner of the vehicle, registration number ………….. on 8 December 2014; that that vehicle was on Princes Highway; that Prince Highway in that area has a 90 km/h speed limit and that the vehicle was in fact travelling at about 104 km/h.[23] Therefore I find the charge proved.

Decision

Reasons for decision

PEEK J
Thus, the appellant was apprised of his option to seek to obtain further relevant documentary evidence, or to subpoena any relevant police witnesses to give evidence at his trial. He positively elected not to do so and to stand or fall on his objections as to the admissibility of the certificates. He stated:[7]… I do not really wish to tie up the resources of the court any more on the other hand, and therefore I do wish for your Honour to consider all the evidence presented and to decide on this matter today if possible because I don’t really wish to tie up your time any more than already has been.[7] Trial transcript, T28.The appellant’s objections to the certificates and the Magistrate’s decision At trial, the appellant objected to the admission of the certificates for reasons essentially the same as those presented on appeal (and I refer to his arguments concerning admissibility in further detail below). During the course of the trial the Magistrate delivered ex tempore reasons for admitting the certificates as follows: The defendant’s prime argument is that for the prosecution to rely upon the presumptions that I have already just referred to, they need to demonstrate how it is that the speedometer on the vehicle was tested to be accurate within the terms of MFI P5 and that absent that evidence that certificate should not be admitted into evidence, which would therefore render the other documents that I have referred to perhaps not admissible. He also referred me to the dictionary definitions of the word ‘accurate’ to support his argument. MFI P5 is tendered pursuant to section 175(3)(b) of the Road Traffic Act. … Importantly, the wording of that section is ‘accurate to the extent indicated in the document’. In this case that means on my reading accurate to the extent certified in MFI P5, and what MFI P5 attests to is that the speedometer on the vehicle registered 80 km/h when the actual speed was 77 km/h. There is no requirement in that provision that the process for determining the accuracy of the testing mechanism used to determine the accuracy of the speedometer be set out in the certificate, and of course all the evidence admitted under these provisions is proof in the absence of proof to the contrary. Consequently, in my view MFI P4, MFI P5 and MFI P6, and for that matter the other exhibits tendered by the prosecution, are admissible as prima facie evidence or evidence in the absence of proof to the contrary. I have considered, so I am satisfied, that those documents are admissible within the terms I have just set out. As will be seen below, I agree in a general way with those remarks.The defendant’s evidence as an expert witness in the Magistrates Court In Police v Young, it was noted:[8][26] … The fact is that the prosecution process is highly adversarial and the law provides that if the certificate is valid, the defendant must discharge an onus to avoid a conviction. If he fails to do so, it will not avail him to complain that the system was too hard without either representation by a skilled lawyer or the services of a competent expert witness. I must decide this case on the law as it is and the circumstances as they are, not what they might have been.…[90] … the appellant never asserted any relevant expertise and did not call any expert witness. Of course, expert evidence need not come from an expert called by the defence since it can also be obtained through cross-examination of a prosecution expert. However, in the present case, as in most cases of this type, the prosecution simply relied upon the s 175(3)(ba) certificate procedure and called no expert witness to give evidence. In circumstances such as these, the absence of a defence expert will often signal a doomed enterprise and so it was to prove here.[8] (2012) 114 SASR 567, 576 and 589.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

Full text does not contain this section.