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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v FLAVEL

Details

AGLC: Police v FLAVEL [2013] SASC 166
Case: [2013] SASC 166
Decision Date: 1 November 2013

CaseChat Overview and Summary

In Police v Flavel, the matter came before the Supreme Court of South Australia on appeal by the Police against the decision of a Magistrate who dismissed a complaint against the respondent for exceeding the prescribed speed limit. The Magistrate dismissed the complaint after excluding a photograph taken by a photographic detection device on the basis that the prosecution had not proven the provenance of the photograph. The Police appealed this decision, contending that the photograph should have been admitted into evidence as it met the preconditions set out in the relevant statute.

The legal issue before the court was whether the Magistrate erred in excluding the photograph as evidence, and if so, whether this error led to the incorrect dismissal of the complaint. Specifically, the court had to determine whether the prosecution had adequately proven the provenance of the photograph and if the photograph met the requirements of the statute. The court also had to assess whether the exclusion of the photograph led to an incorrect outcome in the proceedings.

The court found that the evidence presented, including a certificate of operation and testing of the detection device, along with the annotations on the photograph, provided a clear inference that the photograph related to the detection device on the specified occasion. The court held that the photograph should have been admitted into evidence as it met the statutory preconditions. Consequently, the court concluded that the Magistrate had erred in refusing to admit the photograph and in dismissing the complaint. The appeal was allowed, and the matter was remitted to the Magistrates Court for a rehearing before a different Magistrate.

The court's decision clarified that the photograph, when coupled with the certification and annotations, was sufficient to establish the provenance of the photograph and to meet the requirements of the statute. The court's ruling emphasised the importance of adhering to statutory preconditions for the admissibility of photographic evidence in traffic law offences. The final order was that the appeal was allowed, the decision of the Magistrate was set aside, and the matter was remitted to the Magistrates Court for a rehearing.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

I set out exhibit P4 in full:CERTIFICATE OF OPERATION AND TESTING OF APPROVED PHOTOGRAPHIC DETECTION DEVICESection 79B(10)(b) and (c) Road Traffic Act 1961I 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 11th day of August 2012 and 1335 hours on the 11th 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: TowardsSpeed Limit: 50km/h Vehicle Speed: 63km/h Range: NearLocation 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.