Police v Dinovitser - [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

PEEK J. Appeal against conviction pursuant to s 42, Magistrates Court Act 1991.
Introduction
At 6:00pm on 8 December 2014, a REDFLEX red-speed HDX system[1] “photographic detection device” was being operated in a 90 kilometre per hour speed limit zone on the South Eastern Freeway (Princes Highway), Leawood Gardens. It indicated that the appellant’s vehicle was travelling at 104 kilometres per hour. The appellant, Mr Dinovitser, was charged with an offence against r 20, Australian Road Rules and s 79B, Road Traffic Act 1961 (RTA), it being alleged that he was the owner of the vehicle, and that he drove at a speed of “about 104 kilometres per hour”.
[1] Linked to and used in conjunction with an induction loop vehicle detector, a piezoelectric traffic sensor, a Variable Speed Limit Sign (VSLS) and a closed-circuit television camera.
The complaint
The complaint relevantly states:
On the 8TH day of DECEMBER, 2014 at LEAWOOD GARDENS in the said State being the owner of a motor vehicle REGISTRATION NUMBER …………… where it appears from the evidence obtained through the operation of a photographic detection device that the motor vehicle has been involved in the commission of a prescribed offence namely being driven on a length of road namely PRINCES HIGHWAY to which a speed limit sign applied pursuant to Rule 21(1) of the Australian Road Rules over the speed limit of 90 kilometres per hour as indicated on the speed limit sign which was on the said road.
Rule 20 of the Australian Road Rules and Section 79B of the Road Traffic Act, 1961.
This is a summary offence.
It is further alleged that the speed of the vehicle was about 104 kilometres per hour. And the complainant alleges that the said photographic detection device complied with the requirements of the Road Traffic Act.
The trial
At the trial on 22 February 2016, the police prosecutor did not call any witnesses and the prosecution case consisted of documents tendered pursuant to statutory aids to proof contained in the RTA and Motor Vehicles Act 1959. The appellant was unrepresented. He complained to the Magistrate about a number of matters, such as that the police had not provided any evidence of calibration and testing; that there were no witnesses to cross-examine; and that there were no details about such things as the type of the speedometer fitted to the Holden Omega vehicle referred to in exhibit P5.
During the trial, in response to such criticisms, the police prosecutor, in a very fair way, referred to the defendant’s right “to subpoena the police to ascertain what processes we rely upon, and to challenge those processes…” and to the possibility of an adjournment for that purpose.
The prosecutor was quite correct in doing so. A defendant is entitled to make an application pursuant to s 20 of the Magistrates Court Act 1991 for the court to require a person to appear before the court to give evidence or to produce evidentiary material (or both). Thus in Carter v Hayes,[2] King CJ stated:[3]
Disclosure by those conducting a prosecution of material in the possession or power of the prosecution which would tend to assist the defence case, is an important ingredient of a fair trial (Clarkson v Director of Public Prosecutions [1990] VR 745 at 755), and is an aspect of the prosecution’s duty to ensure that the “Crown case is presented with fairness to the accused”: Richardson v The Queen (1974) 131 CLR 116 at 119; R v Apostilides (1984) 154 CLR 563. Moreover the court has power to order the production to the defence of material in the prosecution’s possession or power if the interests of justice so require: R v Clarke (1930) 22 Cr App R 58; Mahadeo v R [1936] 2 All ER 813; R v Hall (1958) 43 Cr App R 29; R v Xinaris [1955] Crim LR 437; R v Charlton [1972] VR 758. It will often be necessary, or at least desirable, in the interests of a fair trial that the defence have access to the statements of witnesses and other evidentiary material in the possession of the prosecution in advance of trial in order to prepare for cross-examination of prosecution witnesses and to prepare the defence generally. (Emphasis added)
[2] (1994) 61 SASR 451.
[3] Carter v Hayes (1994) 61 SASR 451, 456.
Further, I note that in the case of Gaffee v Johnson,[4] Smith J considered that the equivalent Victorian legislation permitted a defendant to challenge the accuracy of the result recorded by a prescribed device by “lead[ing] evidence about the margin of error in any equipment or by pointing out some deficiency in the device”.[5] His Honour stated:[6]
It seems to me, that the legislation and regulations while drafted to facilitate proof of the speed of the driver also leaves to the driver the right to challenge the alleged speed. It would not be contrary to the intention of the statutory scheme for a magistrate to have the power to require documentary information to be made available to a defendant for the purpose of that defendant’s defence.
[4] (1996) 90 A Crim R 157.
[5] Gaffee v Johnson (1996) 90 A Crim R 157, 164.
[6] (1996) 90 A Crim R 157, 163.
In the present case, the appellant was in no way denied such rights. In response to the above comments by the prosecutor, the Magistrate stated:
I think you’ve presented the evidence that you have available to you today. If it was the case that you wished to find out some information that you haven’t been provided with, there is an opportunity to have a subpoena issue. That would necessitate an adjournment, and I would need to be satisfied that anything, that there was something that could be obtained that might materially assist your defence of the case, so if you are applying for an adjournment to issue a witness summons, and I am not sure you are, but if you are, then you would need to satisfy me that there is some prospect that you will get information that is going to assist your case.
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.
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.
Again, I agree in a general way with his Honour’s remarks.
The Magistrate convicted the appellant and imposed a fine of $240, a $100 prosecution fee and a VIC levy of $60. There is no complaint about that disposition.
The course of the appeal
By notice of appeal dated 15 March 2016, the appellant appealed to this Court. He set forth the following unnumbered propositions in the grounds of appeal section in the notice of appeal:
·The conviction in the case AMC-15-7147 relies on the admission of Police certificates under the Road Traffic Act 1961, section 175(3)(ba).
·The clear intent of this section, and of the act as a whole, is that measurements pertaining to enforcement be accurate, and that the extent of said accuracy be indicated on the certificates.
·In his honour’s ruling on the admissibility of said certificates, the magistrate interpreted the word “accurate” in a way that is inconsistent with the dictionary definition.
·This interpretation resulted in an inconsistency in the magistrate’s Judgment. The Judgement indicated that each certificate stands on it’s own, and that each certificate does not stand on its own because it is a part of a chain of measurements.
·The prosecution have conceeded [sic] that their chain of measurements is not referenced to any standard measurement, and that there is no calibrated enforcement system in South Australia.
·The prosecution also conceed [sic] that there is no reference for the original measurement in the chain of measurements indicated by their certificates. In other words, a number appears plucked out of thin air.
At the hearing of the appeal, the appellant made clear that his grounds of appeal were that the Magistrate erred in admitting, pursuant to ss 175(3)(b) and 175(3)(ba), RTA, each of the certificates exhibits P5 and P6, but that he did not contest the admissibility of exhibit P4.
The statutory aids to proof
Section 175, RTA relevantly provides:
(3)     In proceedings for an offence against this Act—
...
(b)     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 stopwatch or speedometer 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 relevant instrument was accurate to that extent on the day of the test and—
...
(ii)in the case of a speedometer—throughout the 3 month period following and the 3 month period preceding the day of the test,
for the purpose of measuring the speed of any motor vehicle, whether or not the speed measured differed from the speed in relation to which the stopwatch or speedometer was tested or the circumstances of the measurement differed in any other respect from the circumstances of the test;
(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 exhibits P5 and P6

Exhibit P5 was admitted pursuant to s 175(3)(b), RTA and appears thus:

CERTIFICATE OF ACCURACY OF SPEEDOMETER

Pursuant to section 175(3)(b) of the Road Traffic Act, 1961.

I certify that the speedometer attached to Holden Omega registered number SA S918AQL was tested on 07/10/2014 and when the speedometer on the vehicle was registering 80 km/h the actual speed of the vehicle was 77 km/h.

Officer of Police [signed] Chief Inspector Date: 14/8/15

Signature Rank

Exhibit P6 was admitted pursuant to s 175(3)(ba), RTA and appears thus:

CERTIFICATE OF ACCURACY OF TRAFFIC SPEED ANALYSER

Pursuant to section 175(3)(ba) of the Road Traffic Act, 1961

I certify that traffic speed analyser known as:

a REDFLEX red-speed HDX system manufactured by Redflex Traffic Systems Pty Ltd, linked to and used in conjunction with an induction loop vehicle detector, a piezoelectric traffic sensor, a Variable Speed Limit Sign (VSLS) and a closed-circuit television camera,

Serial/Camera No. 139 was tested on 08/12/2014 by comparison with the speedometer attached to Holden Omega Registered number SA S918AQL and was shown to be accurate to the extent that the Traffic Speed Analyser registered 78 km / hr, when the said speedometer registered 80 km / hr.

Officer of Police [signed] Chief Inspector Date: 14/8/15

Signature Rank

The appellant’s arguments as to the admissibility of exhibits P5 and P6

The argument of the appellant on appeal was essentially the same as put to the Magistrate. It was in effect that there are two conditions precedent to a certificate being admitted pursuant to s 175(3)(b) and s 175(3)(ba), neither of which were met by the prosecution. First, the certificate must indicate how, and in what manner, the test referred to was carried out; and second, the certificate must indicate the degree of the accuracy claimed in the sense of the maximum possible deviation from the true value (which will hereafter be referred to as “claimed maximum tolerance”).
As to the first condition precedent, the appellant submits that the certificate does not state, or state in sufficient detail, how and in what manner the respective tests referred to in exhibits P5 and P6 were carried out.
As to the second condition precedent, the appellant submits that the absence of any specification in exhibit P5 or P6 of the claimed maximum tolerance from the true value necessitates the conclusion that the tendered document does not (in the respective words of s 175(3)(b) and (ba)) “purport to certify that a specified … speedometer/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.”
Thus, the appellant essentially submits that what is lacking in each of exhibits P5 and P6 is any statement of claimed maximum tolerance or any traceability to a true standard of measurement.
He further submits that the above asserted requirements are ever the more obvious having regard to the fact that often, indeed as in the present case, a s 175 certificate will refer to one measurement in a chain of measurements. Thus to take the present case as an example, the prosecution case here depends on a procedure whereby one must first reason from exhibit P5 that at a true speed of 77 kilometres per hour, the speedometer of the Holden Omega motor vehicle registered number SA S918AGL (the Omega) will over-read 80 kilometres per hour and then transfer that information to exhibit P6 so that in P6 the actual speed of the Omega is to be taken to be 77 kilometres per hour which in turn can be compared with the registration speed of the traffic speed analyser of 78 kilometres per hour, thus showing an over-reading by the traffic speed analyser of only 1 kilometre per hour.
Discussion
Exhibit P5 indicates that during the test conducted on 7 October 2014, the registering speed of the Omega’s speedometer, at an actual speed of 80 kilometres per hour, deviated three kilometres per hour from that actual speed. However, it does not follow from this fact that the legislation must therefore be construed as requiring that the prosecution must lead evidence of the nature and details of that testing procedure as part of its case, thus enabling the defendant to cross-examine such witnesses so as to dispute the accuracy of that testing procedure. Parliament has taken a different course and, for present purposes, two facets of the correct construction of s 175 are relevant. I turn briefly to each of them.
The first facet of the construction of s 175, Road Traffic Act 1961 — admissibility
The first facet of the construction of s 175, RTA is that the authorities are quite clear that, provided a certificate is duly completed in accordance with the requirements of s 175,[9] the certificate will be admissible and will relieve the prosecution of the need to call evidence or witnesses as to testing, calibration and other matters as part of its case.[10]
[9] There is some discussion of such requirements in Police v Young (2012) 114 SASR 567, 572-576.
[10] See for example: Police v Bulgin [2010] SASC 143; Police v Young (2012) 114 SASR 567; Police v Butcher (2014) 119 SASR 509; Millington v Police [2015] SASC 52; Best v Police [2015] SASC 190; Police v Wyatt [2016] SASC 17. Of course, I allow for the possibility of extraordinary cases; an example is a case of a purported certificate asserting a deviation so gross as to obviously amount to no reasonable level of accuracy: see Pereth v Linnane (1983) 33 SASR 442, 446(.8) (Cox J).
In such circumstances, a defendant may adduce “proof to the contrary” concerning a matter or matters purported to be certified in the s 175 certificate. And, as was observed in Police v Young,[11] there are various ways in which a defendant may defeat the presumption arising from a valid s 175 certificate by adducing such “proof to the contrary”.[12] However, taking such a course requires a proactive approach by a defendant[13] and as noted above, the present appellant did not take such a course at trial, despite having had the possibility specifically drawn to his attention.
[11] (2012) 114 SASR 567.
[12] In Young at 581-582, the following four recurring factual categories were noted:
[56] The first category involves impugning the averred testing process. The main presumption may be defeated if, for example, 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.
[57] The second category involved impugning the speed detection process by evidence relating to the subject vehicle rather than the “traffic speed analyser”. If, for example, a defendant can point to sufficient evidence in the case that in fact the vehicle did not (or could not) travel at or near the speed alleged, the presumption will be defeated, despite the fact that such evidence may not directly address the accuracy or inaccuracy of the device itself.
[58] The third category involves impugning the speed detection process by evidence that directly relates to the accuracy or reliability of the “traffic speed analyser”. If, for example, a defendant can point to sufficient evidence in the case that the device was inaccurate or unreliable, the presumption may be defeated.
[59] The fourth category involves impugning the process of the operation of the device during the speed detection process. As further explained below, the certificate procedure does not apply to this aspect of the matter and the prosecution must prove correct operation by the operator beyond reasonable doubt.
As a matter of caution, Young involved a LTI Ultralyte 100LR Laser whereas the present case involves a “photographic detection device”, as to which s 79B(10)(c) RTA provides an additional certificate procedure enabling a presumption of correct operation of the device in accordance with a specified system, in the absence of proof to the contrary. It therefore follows that the last sentence above concerning the fourth category in Young is inapplicable in the present case.
[13] Cases subsequent to Young such as Police v Butcher (2014) 119 SASR 509 and Police v Wyatt [2016] SASC 17 have again confirmed this necessity.
I conclude that the certificates here were in proper form and were admissible.
The second facet of the construction of s 175, Road Traffic Act 1961 — weight
The second facet of the correct construction of s 175 RTA concerns the evidentiary weight of a s 175 certificate which (as in the present case) avers a level of accuracy that is less than absolute.
The authorities are clear that such a s 175 certificate may still be used by the prosecution in the manner described above,[14] and, of course, the defendant may still adduce evidence in the manner described above. However, in the (usual) case where the defendant does not adduce evidence concerning the testing process, such a deviation in accuracy on the face of a s 175 certificate may, in some cases, raise a serious question as to the weight of that certificate; in other words, exactly how is such a s 175 certificate to be used to prove a charge in particular circumstances.
[14] Pereth v Linnane (1983) 33 SASR 442 is a central authority.
In order to understand how the courts approach such a situation, it is first necessary to note, as was stressed in Police v Young,[15] that a certificate tendered pursuant to a statutory aid in s 175 of the RTA cannot raise a presumption that the subject vehicle was moving at a particular speed. Rather, such certificates are capable only of raising a presumption that a particular measuring instrument, operated by police on a particular day (hereafter referred to as “a police device”), was accurate to an indicated extent.
[15] (2012) 114 SASR 567, 576-577 [27]-[34].
Thus taking exhibit P6 here, the s 175(3)(ba) presumption is engaged by the words “traffic speed analyser … was tested on 08/12/2014 by comparison with the speedometer attached to Holden Omega Registered number SA S918AQL and was shown to be accurate to the extent that the Traffic Speed Analyser registered 78 km/hr, when the said speedometer registered 80 km/hr.”
But two things are immediately apparent. The first is that there is no reference in such a certificate to the vehicle the subject of the criminal charge. As stated above, all that is being addressed in such certificates is the accuracy of police devices. The second thing is that the words “accurate to the extent” clearly mandate that the degree of accuracy of the Omega’s speedometer is to be taken into account when assessing to what extent the traffic speed analyser was shown by the testing to be accurate.
Of course, the police were also permitted to use a further certificate to prove the degree of accuracy of the Omega’s speedometer (pursuant to s 175(3)(b)). However, in the present case, that additional certificate, exhibit P5, certifies that the Omega’s speedometer was tested on 7 October 2014 and that when the Omega’s speedometer was indicating 80 kilometres per hour, the Omega’s actual speed was 77 kilometres per hour. Exhibit P5 therefore purports to state that the speedometer was accurate to the extent indicated in the document, namely that when travelling at an actual speed of 77 kilometres per hour, there was a difference between the indicated speed of 80 kilometres per hour and the actual speed of 77 kilometres per hour.
There is a level of “accuracy” stated here, but at the same time, there is also a commensurate level of “inaccuracy” stated in that the difference between 77 kilometres per hour and 80 kilometres per hour is about a 4 percent over-reading.[16] However, there is nothing new or startling about this proposition; speaking generally, as soon as one deviates to any extent from absolute accuracy, ex hypothesi there must arise some degree of inaccuracy. To take the figures in exhibit P5 here, it is correct to say that if a speedometer on a vehicle indicates 80 kilometres per hour when the actual speed of the vehicle is 77 kilometres per hour, then both a level of accuracy and a level of inaccuracy is being indicated.
[16] It is 3.896103896103896 percent but I will refer to it as 4 percent.
Of course, as the present appellant correctly points out, the difficulty for the prosecution may be exacerbated where it seeks to use statutory aids to proof in cases involving “a chain of measurements”.
However, any question of deviation between actual speed and the reading of the subject machine referred to in a s 175 certificate (or in a chain of s 175 certificates), is almost always not to be addressed by reference only to the face of the certificate(s) alone[17] but rather in the context of the totality of the facts and evidence in the case. This will include such things as the relationship between the nature of the speed zone, the speed indicated by the relevant police device and the allegation in the complaint.
[17] As stated above, I allow for the possibility of extraordinary cases where a purported certificate asserts a deviation so gross as to obviously amount to no reasonable level of accuracy.
Thus in Pereth v Linnane,[18] the s 175(3)(b) certificate averred that “… when the speedometer on the vehicle was registering 60 km/h and 100 km/h respectively, the actual speed of the vehicle was 57 km/h and 98 km/h respectively.” It was argued that the police speedometer was manifestly inaccurate and the certificate had no evidential value without evidence as to how the information on it should be interpreted. Cox J rejected this argument and stated:[19]
The use to which such a certificate may properly be put will be a matter for the court, using its ordinary experience and common sense. One may imagine a case in which the discrepancy between a speedometer reading and the real speed, or an apparent capriciousness in the instrument, is so great that the certificate should be ignored as worthless. It would be too unreliable for any weight at all to be placed upon it. That would be an extreme case. A court might perhaps be uneasy about relying on a certificate that tested the police speedometer at only one speed, particularly if the result was to show a significant error at that speed. Cf. Dunsmore v Elliott. Sometimes the question of the value of the certificate would depend upon precisely what it was supposed to prove. An error in a police speedometer of, say, 5 per cent might not matter very much when it was being used to prove that a motorist, allegedly followed at 100 km/h, was exceeding the speed limit in a 60 km/h zone, but it might well be otherwise if the speed alleged against the motorist was only slightly higher than the permitted speed. All these are questions of judgment and common sense which are unlikely to cause any difficulty in practice. Cf. Barker v Fauser; Redman v Klun. I see no reason to think that the Justices in the present case did not make an appropriate allowance for the relatively small error in the speedometer of the police car in determining whether the appellant had been proved to have exceeded the speed limit when Constable Huckstepp was following him.
[Citations omitted]
[18] (1983) 33 SASR 442.
[19] (1983) 33 SASR 442, 446-447. At the time of the decision in Pereth, s 175(3) did not contain the words "whether or not the speed measured differed from the speed in relation to which the stopwatch or speedometer was tested ...". However, the addition of those words in the current provision does not affect the applicability of the approach taken by Cox J in a case, as here, where the certificate displays on its face a not insignificant degree of inaccuracy.
In order to illustrate, take a case of an 80 kilometre per hour speed zone and a police device said to have been over-reading on the particular day to the extent that at an actual speed of 80 kilometres per hour it read 84 kilometres per hour (an error of 5 percent) and apply those assumed facts to three different scenarios.
The first scenario is that a driver is prosecuted on the basis of any reading from that police device up to, and including, 84 kilometres per hour. In this scenario, the driver must necessarily be acquitted because, on the basis of the police testing, a reading of the police speedometer of 84 kilometres per hour cannot possibly establish a driver speed exceeding 80 kilometres per hour.
The second scenario is that a driver is prosecuted on the basis of a reading from that police device of 86 kilometres per hour. Here, it is necessary to emphasise that the task of the Magistrate remains that he or she must be satisfied of the guilt of the defendant beyond reasonable doubt. As belaboured in Police v Young[20] and above, the s 175 statutory aids bear upon the accuracy of the police device(s) and not directly upon the speed of the defendant’s vehicle. While the Magistrate is required to give full and proper effect to a valid s 175 certificate, it is critical to remember that such a certificate can only certify accuracy of the police device to the extent indicated in the document. In the postulated circumstances of a police device found on testing to be over-reading an actual speed of 80 kilometres per hour as 84 kilometres per hour, a Magistrate might well be doubtful that a reading of 86 kilometres per hour must necessarily be treated as proof beyond reasonable doubt of a speed of 82 kilometres per hour, or as a speed of more than 80 kilometres per hour, and may therefore determine to acquit the defendant. As Cox J so well put the matter in Pereth v Linnane,[21] “an error in a police speedometer of, say, 5 percent might not matter very much when it was being used to prove that a motorist, allegedly followed at 100 kilometres per hour, was exceeding the speed limit in a 60 kilometre per hour zone, but it might well be otherwise if the speed alleged against the motorist was only slightly higher than the permitted speed. All these are questions of judgment and common sense”.[22]
[20] (2012) 114 SASR 567.
[21] (1983) 33 SASR 442, 446-447.
[22] (Emphasis added).
The third scenario is that a driver is prosecuted on the basis of a reading from that same machine of 100 kilometres per hour. Again, the Magistrate needs to be satisfied of the guilt of the defendant beyond reasonable doubt but, depending on all of the facts and evidence, a Magistrate may conclude that a driver speed exceeding 80 kilometres per hour is established beyond reasonable doubt by the police speedometer reading of 100 kilometres per hour notwithstanding the 5 percent deviation in the certificate.
Conclusion
In the present case, the prosecution process of a chain of measuring devices was very far from elegant. One might be somewhat surprised at being prosecuted on the present basis which was:
·the Omega vehicle (the speedometer of which was over-reading its own speed of 77 kilometres per hour as 80 kilometres per hour) was driven through a traffic speed analyser at a speed indicated by the Omega’s speedometer as 80 kilometres per hour
·a reading of 78 kilometres per hour was obtained from the traffic speed analyser
·the traffic speed analyser reading of 78 kilometres per hour was compared with a “corrected” speed for the Omega of 77 kilometres per hour
·it was concluded that the traffic speed analyser gave an over-reading of 78 kilometres per hour when the actual speed was 77 kilometres per hour
However, I have concluded that this process, clumsy as it was, did not, as a matter of law, invalidate the certificates such as to render them inadmissible. I further conclude that, while as indicated above, this clumsy process might prevent satisfaction beyond reasonable doubt if the alleged speed was quite close to the maximum permitted speed, this is very much a matter of degree.

The maximum permitted speed was 90 kilometres per hour with the police device indicating a driver speed of 104 kilometres per hour. I “see no reason to think that the Magistrate did not make an appropriate allowance for the relatively small error” in the speedometer of the police car and in the photographic detection device.[23] I consider that, in all the facts and circumstances here, the Magistrate acted in accordance with the binding authorities in finding beyond reasonable doubt that the charge was made out.
[23] Cf Pereth v Linnane (1983) 33 SASR 442, 447 (Cox J).
It is, of course, quite possible that the actual driver speed, while over 90 kilometres per hour, was somewhat less than a speed of 104 kilometres per hour. However, the speed referred to in the complaint was “about 104 kilometres per hour” and, again, there is no reason to think that the Magistrate did not make an appropriate allowance for the relatively small error when assessing penalty.
The appeal is dismissed.