Police v FLAVEL - [2013] SASC 166

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v FLAVEL
[2013] SASC 166
Judgment of The Honourable Justice David
1 November 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS
Police appeal against the dismissal of a complaint – the respondent was charged on complaint that he was the owner of a motor vehicle which had been detected by a photographic detection device as exceeding the applicable speed limit – the Magistrate excluded photographic evidence of the alleged offence, purportedly taken by a photographic detection device, on the basis that the prosecution had failed to prove the provenance of the photograph – as a consequence, the Magistrate dismissed the complaint on the basis that there was no evidence of the commission of the offence charged.
Whether the Magistrate erred in refusing to admit into evidence a photograph the prosecution sought to tender as a photograph taken by a photographic detection device.
Held: Appeal allowed – the Magistrate erred in refusing to allow the tender of the photograph – at a prima facie level, it could be inferred that the photograph was taken by a particular photographic detection device on a specified occasion – consequently, the Magistrate’s decision to dismiss the claim was in error – matter remitted to Magistrates Court for rehearing.
Road Traffic Act 1961 (SA) s 79B, s 175; Australian Road Rules r 20; Motor Vehicles Act 1959 (SA) s 140; Road Traffic (Miscellaneous) Regulations 1999 (SA), referred to.
Police v Bulgin (2010) 269 LSJS 438, considered.

POLICE v FLAVEL
[2013] SASC 166
Magistrates Appeal: Criminal

DAVID J: The respondent was charged on complaint that he was the owner of a motor vehicle which had been detected by a photographic detection device (commonly referred to as a “speed camera”) on 11 August 2012 as exceeding the applicable speed limit, contrary to s 79B(2) of the Road Traffic Act 1961 (SA) (“the Act”) and r 20 of the Australian Road Rules. The detection device identified the respondent’s vehicle travelling along Gulfview Road at Christies Beach at a speed of 63 km/h, when the default speed limit was 50 km/h.
The respondent filed a Notice of Objection in relation to the complaint and elected to be prosecuted. At a trial before a Magistrate, the respondent pleaded not guilty.
At the trial on 23 July 2013, the Magistrate dismissed the complaint at the end of the prosecution case on the basis that there was no evidence of the commission of the offence charged. This conclusion of the Magistrate was a consequence of his exclusion of photographic evidence of the alleged offence, purportedly taken by a photographic detection device. The basis of the refusal was that the prosecution had failed to prove the “provenance” of the photograph it sought to tender.
The Police now appeal against the dismissal of the complaint, contending that the Magistrate erred in law in refusing to admit into evidence a photograph which, on its face, demonstrated that it had been taken by a specific photographic detection device.
The respondent appeared in person both at trial and on the appeal.
Trial
At the trial, the prosecution tendered a number of documents said to establish the offending conduct. Those documents may be described as follows:
·An extract from the Register of Motor Vehicles as at 11 August 2012 showing that the respondent was the registered owner of the relevant vehicle, pursuant to s 140 of the Motor Vehicles Act 1959 (SA) (“exhibit P1”).
·A Certificate of Issue of Expiation Notice by Post pursuant to s 79B(9) of the Act (“exhibit P2”).
·The respondent’s Notice of Election for Prosecution, including an attached letter from the respondent (“exhibit P3”).
·A Certificate of Operation and Testing of Approved Photographic Detection Device dated 1 March 2013 and signed by the Chief Inspector of Police purporting to certify the matters specified in s 79B(10)(b) and (c) of the Act in relation to the detection device used at Gulfview Road, Christies Beach on 11 August 2012 (“exhibit P4”).
·A Certificate of Accuracy of Traffic Speed Analyser dated 1 March 2013 and signed by the Chief Inspector of Police, pursuant to s 175(3)(ba) of the Act (“exhibit P5”).
·A Certificate of Accuracy of Speedometer dated 1 March 2013 and signed by the Chief Inspector of Police, pursuant to s 175(3)(b) of the Act (“exhibit P6”).
The prosecution sought to tender a photograph of the respondent’s vehicle purportedly taken by detection device 513 on 11 August 2012. In order to do so, the prosecution endeavoured to invoke the statutory aids to proof contained in s 79B(10) of the Act. Section 79B(10) relevantly provides:
In proceedings for an offence against this section or proceedings for a prescribed offence—
(a)a photograph or series of photographs produced by the prosecution will be admitted in evidence if—
(i)    the photograph or each of the photographs was produced from an exposure taken, or electronic record made, by a photographic detection device; and
(ii)     the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with that use of the device,
and a denotation as to date, time and location that appears as part of such a photograph will be accepted as proof, in the absence of proof to the contrary, of the date, time and location at which the exposure was taken or the electronic record made by the photographic detection device; and
(b)a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or any other police officer of or above the rank of inspector, and purporting to certify—
(i)    that a specified device used at a specified location during a specified period was a photographic detection device; and
(ii)     that the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of that device during that period,
will be accepted as proof, in the absence of proof to the contrary, of the facts so certified; and
(c)where it is also certified in a document of a kind referred to in paragraph (b) that the device was designed and set to operate according to a specified system during that period, it will be presumed, in the absence of proof to the contrary, that the device was designed and set to operate according to that system during that period and did, in fact, so operate.
Section 79B(10) relates to proceedings for an offence against both s 79B itself, and a “prescribed offence”. The Road Traffic (Miscellaneous) Regulations 1999 (SA) provide that a contravention of r 20 of the Australian Road Rules is a “prescribed offence”.
Section 79B(10)(a) provides for the admission into evidence of a photograph taken by a photographic detection device. If a court is satisfied of the requisite criteria contained in the subsection, namely that the photograph was produced from a detection device and there was compliance with the Act and associated Regulations, it must admit the photograph into evidence.
Subparagraph (b) of s 79B(10) facilitates proof of the two matters the prosecution must prove under subparagraph (a) in order for a photograph to be admitted into evidence.[1] A certificate signed by a senior police officer which purports to certify that a specific device used at a particular location during a specified time period was a photographic detection device, and that there was compliance with the Act as to the operation and testing of the detection device, is to be accepted, in the absence of proof to the contrary, as proof of the facts certified.
[1] Police v Bulgin (2010) 269 LSJS 438.
Initially, the prosecution were of the view that the photograph said to be produced by detection device 513 could simply be tendered pursuant so s 79B(10) of the Act, without the need to call as witness the individual who operated detection device 513 at the relevant time to prove that the photograph was in fact taken by that particular device. However, the Magistrate formed the view that it was for the prosecution first to prove that the photograph they wished to tender was a photograph produced by detection device 513, and then the certificates tendered could work to enliven the various aids to proof contained in sub-section (10)(b).
The prosecution sought to rely on exhibit P4, together with the aid to proof in s 79B(10)(b) and with particular regard to the notation on the photograph they wished to tender, to prove that the photograph was taken by a photographic detection device. The photograph was signed by the Chief Inspector of Police, with the notations at the top of the photograph denoting the time and date the photograph was taken, the speed of the vehicle in the photograph, a location code and the device identification number. Exhibit P4 effectively certified that detection device 513 was operating as a speed detection device on Gulfview Road, Christies Beach on 11 August 2012. The prosecution submitted that exhibit P4, in combination with the notations on the photograph, proved that the photograph was taken by detection device 513. In the course of argument, the prosecution referred to White J’s decision in Police v Bulgin.[2] This case dealt with the admissibility of certificates tendered under ss 79B(10) and 175(3) of the Act. His Honour observed:[3]
If there is no proof to the contrary of the facts certified by the senior police officer in the s 79B(10)(b) certificate, the certificate is to be accepted as proof of the matters referred to in placita (i) and (ii) of s 79B(10)(a). This means that the photograph of the defendant’s vehicle is to be admitted into evidence. Once admitted into evidence, that photograph is to be considered along with any other evidence adduced in the case. In the absence of any evidence from a defendant, whether or not the charge is proved will depend upon what can be taken to be proved by the photograph and the other evidence adduced by the prosecution.
[2] (2010) 269 LSJS 438.
[3] (2010) 269 LSJS 438 at 447.
Due to the operation of s 79B(10)(b), the prosecution thought it unnecessary to call a witness to provide evidence that the photograph was in fact taken by speed detection device 513. The Magistrate rejected this argument.
The Magistrate considered that there was nothing on the face of the photograph, in the absence of oral evidence as to its provenance, which proved that it was in fact taken by a photographic detection device. As exhibit P4 makes no reference to the specific photograph the prosecution sought to tender, the Magistrate found that there was no link between that photograph and exhibit P4. Subsection 79B(10)(a) was not satisfied. Consequently, it was necessary for the prosecution to prove the provenance of the photograph independently of exhibit P4. Without oral evidence on this matter, the prosecution was unable to do so. Accordingly, the prosecution made an application to adjourn the trial for the purpose of calling a witness, in particular the camera operator of photographic detection device 513, to prove that the photograph was produced by that detection device.
The respondent opposed the application for an adjournment, contending that the trial had previously been adjourned and such delays caused him significant distress. The Magistrate refused the prosecution’s application and provided brief reasons for his ruling. The appellant abandoned its grounds of appeal in relation to the Magistrate’s refusal of the application for an adjournment.
Appeal
On appeal, counsel for the Police contends that the Magistrate erred in law in dismissing the complaint as that dismissal was the result of an erroneous refusal to admit into evidence the photograph purportedly taken by photographic detection device 513.
The appellant submits that the combined effect of exhibit P4 and the photograph, which the Magistrate excluded from evidence, proves that the photograph was taken by a particular photographic detection device. Thus, in the absence of proof to the contrary, the photograph was admissible under ss 79B(10)(a)(i) and (ii) of the Act.
The respondent argues that, as the matter was in dispute, oral evidence should have been called and the ruling of the Magistrate not to allow the photograph to be tendered, and consequently that there was no case to answer, was correct.
I set out exhibit P4 in full:
CERTIFICATE OF OPERATION AND TESTING OF APPROVED PHOTOGRAPHIC DETECTION DEVICE
Section 79B(10)(b) and (c) Road Traffic Act 1961
I certify –
1That the Traffic Speed Analyser (REDFLEXradarcam mobile digital camera system) used in conjunction with Camera No 513 which was linked to or formed part of such Traffic Speed Analyser used at Gulfview Road, Christies Beach (location code 00898) between 1130 hours on the 11^th day of August 2012 and 1335 hours on the 11^th day of August 2012 was a photographic detection device as approved under Regulation 14 of the Road Traffic (Miscellaneous) Regulations 1999.
2That the requirements of the Road Traffic Act 1961 and the Road Traffic (Miscellaneous) Regulations 1999 as to the operation and testing of photographic detection devices were complied with in connection with the use of the device referred to in clause 1 of this certificate during the period referred to in that clause.
3That the device referred to in clause 1 was designed and set to operate in accordance with the following system:
(a)     when the device registers a vehicle as proceeding at a speed equal to or greater than a speed set on the device, an exposure is taken of that vehicle from the front or from the rear.
(b)     At the top of the exposure the following information is recorded in a datablock:
(1)Date:              date of detection
(2)Time:             time of detection in 24 hour clock
(3)Direction:        the detected vehicle’s direction of travel relative to the device
(4)Speed Limit:     Area speed limit
(5)Vehicle Speed:   Speed of detected vehicle
(6)Range:            the antenna range of the device
(7)Location Code: numerical code and description of the location. Location is described above and in Certificate of Operation and Testing of Approved Photographic Detection Device produced pursuant to Section 79B(10)(b) and (c) Road Traffic Act;
(8)Operator Id:     the camera operator’s unique identifier
(9)Device Id:        Code identifying the Camera
(10)Frame:            Number of photograph
(c)     where a photograph is produced from the exposure, the vehicle whose speed is registered by the device, or part of that vehicle, appears in the portion of the photograph that corresponds to the portion indicated in the diagram in this certificate.
I also set out the annotations at the top of the photograph which was sought to be tendered:[4]
Date: 11/08/2012         Time: 12:03:45 CAST           Direction: Towards
Speed Limit: 50km/h    Vehicle Speed: 63km/h         Range: Near
Location Code: 00898    Operator Id: 74876               Device Id: 513    Frame: 3
[4]    Annexed to the affidavit of Cara Louise Bailey sworn on 1 October 2013.
When one marries the information from exhibit P4 and those annotations on the photograph, a clear inference can be drawn that the vehicle depicted in that photograph related to the details contained in exhibit P4. The photograph should have been received in evidence because, on the material presented, the preconditions set out in s 79B(10)(a) will have been made out.
I find the Magistrate has erred in refusing the tender of the photograph and consequently has erred in dismissing the complaint.
Exhibits P5 and P6 relate to the accuracy of the photographic detection device which allegedly captured the respondent’s vehicle on 11 August 2012, namely, detection device number 513. Exhibit P4 certifies the operation and testing of detection device 513 in accordance with the Act. It also explains the meaning of the data block located at the top of any exposure taken by the detection device.
Conclusion
I find that the decision of the Magistrate to reject the tender of the photograph was incorrect.
I allow the appeal. I remit the matter to the Magistrates Court for a rehearing before a different Magistrate.