Police v Hanton - [2018] SASC 96

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v HANTON
[2018] SASC 96
Judgment of The Honourable Justice Peek
19 July 2018
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
EVIDENCE - PROOF - FACILITATING PROOF - MATTERS RELATING TO MACHINES, PROCESSES AND OTHER DEVICES
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - PRESUMPTIONS - AS TO SCIENTIFIC INSTRUMENTS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
The appellant was charged with one count of driving at a speed dangerous to the public, contrary to section 46 of the Road Traffic Act 1961 (RTA), and one count of exceeding the speed limit by 45 kilometres an hour or more, contrary to s 45A(1). At trial, the prosecution tendered a “certificate” pursuant to s 175(3)(ba), in which detective inspector Dunstone purported to certify that the traffic speed analyser named therein (the TSA) was “tested on 19/07/2017 and was shown by the test to be accurate within a limit of error not exceeding plus 2 or minus 3 kilometres per hour”. The prosecution called senior constable Piercy who completed a “five step test” on the day of the alleged speeding and furnished the results of that test, together with a “calibration check”, to Inspector Dunstone.
Inspector Dunstone attended on subpoena and was called by the defence. He gave evidence that the basis upon which he issued the certificate was the results of senior constable Piercy’s testing together with the calibration check and that the extent of accuracy of “plus 2 or minus 3 kilometres per hour” specified in the certificate arose from the calibration check rather than the “five step test”.
The Magistrate found both charges proven.
Discussion of the nature and use of manufacturer’s instructions and Australian Standards.
Held per Peek J (allowing the appeal):
(1) The only permissible certifiable fact under RTA s 175(3)(ba) is that the statutory test showed that the TSA unit was accurate to a particular extent of accuracy at the time of the test, which extent of accuracy is to be stated in the certificate.
(2) The onus on a defendant who wishes to contest the permissible certified fact is to prove that, on the whole of the evidence before the Court, the purported statutory test failed to show the particular extent of accuracy specified in the certificate. The defendant does not have to prove that the TSA was not accurate to the particular extent of accuracy stated in the certificate, or that it was generally inaccurate.
(3) The defendant succeeded in discharging his onus of proof and proving that, on all of the evidence before the Court, the “five step test” performed by the constable (together with a “calibration check”) failed to show that the TSA was accurate at the time the test was conducted to the extent of “plus 2 or minus 3 kilometres per hour” as stated on the certificate.
(4) Accordingly, the prosecution could not rely on the presumption in s 175(3)(ba), and the evidence was otherwise incapable of proving either charge beyond reasonable doubt. The complaint must therefore be dismissed.
(5) In the alternative, the Magistrate erred in his approach to the proper construction of RTA s 175(3)(ba) and the findings of guilt are to be set aside. In the circumstances, it is inappropriate to order a re-trial.
Road Traffic Act 1961 (SA) s 175(3), s 175(3)(ba); Road Traffic Act 1934 SA s 157, referred to.
Police v Miller [2018] SASC 97; Police v Henderson [2018] SASC 98; Police v Young (2012) 114 SASR 567; Police v Butcher (No 2) [2016] SASC 130; Police v Dinovitser [2016] SASC 77; Police v Hicks [2010] SASC 136; Such v Police [2011] SASCFC 4; Police v Wyatt [2016] SASC 17; Police v Butcher (No 1) (2014) 119 SASR 509; Willis v Endall [2011] WASC 45, discussed.
Charlton v Rogers; Ex parte Charlton (Charlton) (1985) 82 FLR 40; Gallagher v Cendak [1988] VR 731; Law Society (SA) v Tom (1974) 8 SASR 517; Police v Eiffe (2007) 98 SASR 79; Pereth v Linnane (1983) 33 SASR 442; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Ellul v Fraser (1981) 28 SASR 300; Pearce v The Queen (1998) 194 CLR 610; RSPCA v Rogers [2016] SASC 18; Taylor v Hayes (1990) 53 SASR 282, considered.

POLICE v HANTON
[2018] SASC 96
Magistrates Appeal: Criminal
PEEK J. Appeal against findings of speeding.
TABLE OF CONTENTS
Introduction................................................................................................................................ 3
The appellant’s grounds of appeal................................................................................................. 3
Three sets of reasons are being concurrently delivered................................................................... 3
Nomenclature.................................................................................................................... 6

Overview of this Judgment ....................................................................................................... 6
Part 1: The Strict Boundaries of RTA s 175(3)(ba) ............................................................. 10
Averment and certificate provisions ............................................................................................ 10
The only permissible certifiable fact ............................................................................................. 14

Part 2: The Importance of the “Statutory Test”................................................................... 15
The function of the statutory test is to show the extent of accuracy................................................ 15
The statutory test must show that the TSA was accurate to a particular extent............................... 17
External and internal testing of complex devices........................................................................... 18
The legislative history of RTA s 175(3)(ba).................................................................................. 19
SAPOL’s internal procedures cannot impinge upon the statutory test............................................ 22
Problems presented by the “five step test plus calibration check” procedure................................. 24

Part 3: The Senior Police Officer’s Task............................................................................... 25
The required state of mind of the certifying senior police officer.................................................... 26
The decision of a senior police officer whether or not to issue a certificate..................................... 28

Part 4: The Nature of the Defendant’s Onus of Proof.......................................................... 29
The meaning of the words “shown by the test” in RTA s 175(3)(ba)............................................. 29
The correct formulation of the question is counter-intuitive............................................................ 30
“Proof to the contrary” in the form of a spectrum......................................................................... 32
Previous cases where the senior police officer was not called at trial............................................. 34
Previous cases where the senior police officer was called at trial................................................... 35

Part 5: Section 175(3)(ba) Does Not Apply to Skill in Measuring Speed............................ 40
Part 6: The Trial of Mr Hanton.............................................................................................. 43
The commencement of the trial.................................................................................................... 43
Alternative Charges........................................................................................................ 45

The course of the trial.................................................................................................................. 46
The evidence of Senior Constable Piercy........................................................................ 46
The evidence of Detective Inspector Dunstone............................................................... 48

Part 7: The Magistrate’s Reasons and the Appeal.............................................................. 50
Part 8: Manufacturer’s Instructions and Australian Standards .......................................... 52
Manufacturer’s Instructions ........................................................................................................ 53
Standards Australia International Ltd and Australian Standards.................................................... 55
AS 4691.1-2003: “Laser-based speed detection devices/Part 1..................................... 56
AS 4691.2-2003: “Laser-based speed detection devices/Part 2..................................... 59

The view of the Magistrate concerning AS 4691.2-2003............................................................. 59
The correct construction of AS 4691.2-2003.............................................................................. 61

Part 9: A Final Word - Some Options Open to SAPOL........................................................ 63
Conclusion and Disposition..................................................................................................... 65
Schedule: Australian Standard 4691.2-2003............................................................................... 67
INTRODUCTION

The appellant was charged on complaint with the following offences:
1. On the 19^th day of July 2017 at Greenwith in the said State, drove a vehicle namely a Kawasaki motor bike registration number S27BAJ on a road namely Green Valley Drive at a speed which was dangerous to any person.
Section 46 of the Road Traffic Act 1961.
This is a summary offence
2. On the 19^th day of July 2017 at Greenwith in the said State, drove a vehicle namely a Kawasaki motor bike registration number S27 BAJ on a road namely Green Valley Drive whilst exceeding the speed limit by 45 kilometres an hour or more.
Section 45A(1) of the Road Traffic Act 1961.
This is a summary offence.
It is further alleged that the speed limit on that road was 60 kilometres an hour and you were travelling at a speed of about 126 kilometres an hour.
The complaint was laid on 6 September 2017 but the trial did not commence until 13 February 2018; the trial was completed that day and judgment was reserved. On 20 March 2018, the Magistrate delivered judgment and found both charges proven. His Honour then adjourned the matter of penalty pending the outcome of an appeal against those findings.
This case raises an important point concerning the correct construction and application of s 175(3)(ba) of the Road Traffic Act 1961 (RTA s 175(3)(ba)).
The grounds of appeal
The amended grounds of appeal are:
1.The verdicts are unsatisfactory and not supported by the evidence.
2.Neither count 1 nor count 2 was proven beyond reasonable doubt.
3.The Magistrate erred in finding both counts 1 and 2 proven in circumstances where they were charged as alternative counts.
Argument of the appeal was not closely constrained to those grounds.
Three sets of reasons are being concurrently delivered
These reasons (Hanton) should be read in conjunction with two other sets of reasons (being concurrently delivered) which deal with the same point: Police v Miller[1] (Miller) and Police v Henderson[2] (Henderson). Hanton and Miller are appeals that came before me in the Magistrate appeals session in May 2018.
[1] [2018] SASC 97.
[2] [2018] SASC 98.
Henderson, on the other hand, is an earlier appeal that came before me in the July 2017 session. As is discussed more fully in Henderson, the appellant there filed a full summary of argument and, in response, the respondent filed a summary of argument which conceded the appeal on the basis that the defendant had discharged his onus of proof under RTA s 175(3)(ba) and that the case was on all fours with the decision of Stanley J in Police v Butcher (No 2) (Butcher (No 2)).[3]The two outlines satisfied me that the ground of appeal was made out and I was therefore prepared to allow the appeal as a conceded appeal which would normally mean that a full judgment would not be required. However, there was some cause for concern in that although Butcher (No 2) had been handed down on 17 August 2016, about 11 months previously, it appeared as at the date of the conceded appeal in Henderson on 20 July 2017 that the police speed detection regime was proceeding as if there was no concern at all. Part of the dialogue in Henderson on 20 July 2017 was as follows:
HIS HONOUR: … if I think that it is a situation where it’s going to be virtually a bean- counter type situation, if you know what I mean, that the police are going to continue to run the same system and just accept the odd setback in terms of a not guilty trial because the cost of that is less than fixing the system, then I might find it to be my duty to write a definitive judgment on the matter.
MS DOECKE: Yes, I see your Honour’s point. There is a question of evidence that was not led in the court below that goes to the broader principle, so in cross-examination in the court below the appellant led evidence which was the same as the agreed facts in Butcher; there was no rebuttal evidence led and I have sought instructions but haven’t confirmed those instructions regarding the nature of rebuttal evidence, of a technical nature, that can verify the accuracy of the zero fixed velocity test, which is undertaken and relied upon in relation to these ... That broader question is one that police have received advice about and which they are able to - and I understand will act upon - but there’s not a sufficient evidential basis at this point for your Honour to say this process is invalid and incapable of providing the factual basis necessary to make the certificate pursuant to s.175.
On the agreed facts in Butcher No.2 and on the cross-examination in this matter, it is apparent that these certificates relied upon a zero fixed velocity test together with a calibration certificate, and the limits of accuracy put the two parts of the averment, as your Honour put it in Young together impermissibly, using two sources to essentially aver two separate facts which was not permissible on the basis of Young.
There is no technical evidence before this court, and I have sought instructions but haven’t received those instructions yet, about how that zero fixed velocity test works and its capabilities.
[3] [2016] SASC 130.
On the basis of these assurances, I allowed the appeal in Henderson and made the following orders on 20 July 2017:
1.   The appeal is allowed.
2.   The findings of guilt and convictions are set aside.
3.   The respondent is to pay the appellant’s costs and disbursements of the trail and of this appeal in the agreed amount of $3729 inclusive of GST.
4.   Reasons may be given by the Court at a later date. Counsel for the respondent may within 7 days file and serve further written submissions.
There the matter reposed until, as a matter of serendipity, the appeals in Police v Miller[4] (Miller) and Police v Hanton[5] (Hanton) came before me in the Magistrate appeals session in May 2018. They disclosed the following matters.
[4] [2018] SASC 97.
[5] [2018] SASC 96.
On 14 February 2018, about seven months after making the above orders in Henderson, the trial of Mr Miller commenced (being about one and a half years after judgment had been given in Butcher (No 2)).At Mr Miller’s trial, the only exhibit tendered by the prosecution was a s 175(3)(ba) certificate and the only witness called by the prosecution was the constable who used the TSA on the subject occasion; the defence called the certifying senior police officer.
Further, on 13 February 2018, again about seven months after making the above orders in Henderson, the trial of Mr Hanton commenced (again being about one and a half years after judgment had been given in Butcher (No 2)).At Mr Hanton’s trial, the prosecution tendered a s 175(3)(ba) certificate and a calibration report. As in Miller, the only witness called by the prosecution was the constable who used the device on the subject occasion. The defence called the certifying senior police officer and tendered a number of documents.[6]
[6] Exhibit D2 was Australian Standard AS 4691.1-2003 and, that having been admitted, the prosecutor requested that the defence also tender AS 4691.2-2003 which was then tendered and received as exhibit D3.
Thus, in both Miller and Hanton the evidentiary matrix presented by the prosecution at trial was very similar to that in both Butcher (No 2) and Henderson; and the prosecution did not lead any “technical evidence … about how that zero fixed velocity test works and its capabilities” alluded to by the prosecutor in the dialogue in Henderson reproduced above. It is in those circumstances that I consider it appropriate to now deliver reasons for allowing the appeal in Henderson on 20 July 2017.
To avoid undue repetition and (hopefully) for the sake of clarity, the major historical and conceptual analyses will be dealt with here in Hanton. To the extent necessary, these matters are incorporated by reference in each of the separate judgments in Miller and Henderson.[7]
[7] It should also be noted that the case of Hanton has a number of additional issues concerning expert evidence that do not arise in either Miller or Henderson and those issues will be dealt with here in Hanton alone.
Nomenclature
The following abbreviations are used below:

Five step test plus calibration check procedure

A procedure used by SAPOL in purported compliance with the statutory test

RTA

Road Traffic Act 1961

SAPOL

South Australian Police

TSA

Traffic speed analyser

TSA unit

The particular traffic speed analyser unit used (as distinct from a TSA make and model)

The permissible certifiable fact

The certifiable fact referred to in s RTA s 175(3)(ba) “that the TSA was shown by the statutory test to be accurate to a particular indicated extent.”

The statutory test

“The test” referred to in s RTA s 175(3)(ba) that a specified traffic speed analyser had been tested on a specified day and was shown by “the test” to be accurate to a particular extent.

OVERVIEW OF THIS JUDGMENT

Section 175(3)(ba) of the Road Traffic Act 1961 relevantly provides:
S 175(3) In proceedings for an offence against this Act—
…
(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;
At the outset of the trial, the prosecutor tendered, and the court received as exhibit P1: a certificate furnished by detective inspector Peter Dunstone dated 22 September 2017 referable to a “test” on 19 July 2017. It appears as follows:

TO BE COMPLETED BY A SENIOR OFFICER (OF OR ABOVE THE RANK OF INSPECTOR)

I,   [PETER JAMES DUNSTONE]

(Officer of Police Full Name)

certify that:

Laser Technology Inc. LTI20/20 TruSpeed Laser       serial number: TS007709

  (LIDAR Device)  (LIDAR Serial Number)

was tested on     19/07/2017          and was shown by the test to be accurate within a limit of error
                   (dd/mm/yyyy)

not exceeding plus 2 or minus 3 kilometres per hour.

_      [SIGNED]______            _[D/INSP]___    __[31271]__      on      [22/9/2017]__
(Signature of Officer of Police)    (Rank)                (ID)  (Date)

The conceptual analysis and discussion in this judgment may be summarised briefly as follows.
Part 1: The strict boundaries of s 175(3)(ba)
The boundaries of s 175(3)(ba) must be strictly adhered to.SAPOL has no obligation to obtain or use a RTA s 175(3)(ba) certificate in a speeding prosecution; they are quite able to prove such a charge without resorting to that procedure. However, if SAPOL do wish to obtain the significant advantages of that procedure (and thereby subject the defendant to the significant disadvantage of a reversal of the onus of proof), there must be strict adherence to the requirements and limits of RTA s 175(3)(ba). The only permissible certifiable fact under RTA s 175(3)(ba) is that the statutory test showed a particular extent of accuracy, which extent of accuracy is to be stated in the certificate by the certifier; the permissible certifiable fact is to be clearly distinguished from a more general assertion that “the TSA was accurate to a particular extent”.
Part 2: The critical importance of “the statutory test”
RTA s 175(3)(ba) requires as the central subject of a certificate, that a specified TSA unit had been tested on a specified day and was shown by the test to be accurate to a particular stated extent; this test is referred to herein as “the statutory test”. The function of the statutory test is to show the extent of accuracy the TSA unit actually has at the time of that statutory test as distinct from what might be asserted or purportedly specified by: design specifications, manufacturer’s instructions or Australian Standards; neither the requirements of the statutory test nor its central importance can be impinged upon by such matters or by SAPOL’s actions in adopting various internal procedures.
There is a significant distinction between external testing[8] and internal testing[9] of a complex measuring device. A problem that has arisen, perhaps incrementally, is that SAPOL have (in purported compliance with the statutory test), erected a system whereby the result of the last “calibration test” of a TSA unit (if it occurred within the previous 12 months) will be taken to be the current extent of accuracy of that unit, provided that the rudimentary test (which may be referred to as the “five step test plus calibration check” procedure) is “passed”. What has been lost sight of is that RTA s 175(3)(ba) requires that first, the statutory test be performed proximate to the measurement of the speed the subject of a charge and second, that the statutory test must itself show that the TSA unit is then accurate to a particular stated extent.
[8] External testing occurs when one tests the accuracy of a device by reference to an external standard that can be seen to be trustworthy.
[9] Internal testing occurs when the device be tested for accuracy purports to wholly or partly administer the test itself.
Part 3: The senior police officer’s task
I express the following views solely on the basis of principles of statutory interpretation of the Road Traffic Act 1961 and not by reference to remedies in the nature of judicial review. RTA s 175(3)(ba) grants to a narrow class of persons a power, the exercise of which very seriously affects both the rights of a defendant to a criminal charge and the usual course of a common law trial. While the way in which that power is to be exercised is not spelt out, neither is the way in which many and various other statutory powers are to be exercised by many and various other officials. As a matter of statutory interpretation, the common law touchstone in such cases is that the power must be exercised reasonably. In order to furnish a RTA s 175(3)(ba) certificate, the senior police officer must believe on reasonable grounds that “the statutory test” showed that the TSA unit was, at the relevant time, accurate to a particular specific extent; and he or she must be able to specify that particular extent of accuracy. These requirements must be clearly distinguished from merely being of a general belief that the TSA is accurate, whatever might be the basis of such a belief.
Part 4: The nature and extent of the defendant’s onus of proof
The onus of a defendant who wishes to contest the permissible certified fact is to prove the converse of the permissible certified fact; namely, on the whole of the evidence before the court tendered by both prosecution and defence, the purported statutory test failed to show the particular extent of accuracy specified in the certificate. Importantly, the defendant does not have a different and wider onus to prove that the TSA unit was not accurate to the particular extent of accuracy specified in the certificate or that it was generally inaccurate.
Part 5: The RTA s 175(3)(ba) presumption does not apply to a police officer’s skill in measuring speed
This Court has always recognised a fundamental distinction between the inherent accuracy of the TSA unit to which the certificate refers (on the one hand) and the skill with which the police officer used that TSA unit on the relevant occasion (on the other hand), in that the presumption enlivened by a RTA s 175(3)(ba) certificate only applies to the former.
Part 6: The trial of Mr Hanton
The course of the trial and the evidence received are summarised.
Part 7: The Magistrate’s reasons and the appeal to this Court
It is concluded that first, the defendant succeeded in discharging his onus of proof under RTA s 175(3)(ba) and that, in the present circumstances, neither charge was proven beyond reasonable doubt; and second, that the Magistrate erred in his approach to the above matters and to the matters of Australian Standards and manufacturer’s instructions. Each alternative pathway in this case leads to the conclusion that the appeal should be allowed and the complaint should be dismissed with no order for a re-trial.
Part 8: Manufacturer’s instructions and Australian Standards
There are a number of possible objections to the use of manufacturer’s instructions or Australian Standards in various situations without accompanying explanatory expert evidence. Neither of the two witnesses senior constable Piercey or detective inspector Dunstone possessed qualifications, either formal or acquired by experience, to give evidence concerning the scientific methodology, workings or degree of accuracy of the TSA; as it happened, neither were asked to venture any such opinion. Australian Standards were received as exhibit D2 and D3 late in the trial without there being any witness who could have assisted in interpreting those documents; despite that, the Magistrate sought to interpret AS 4691.2-2003 in a way that supported his Honour’s theory of the prosecution case. I disagree with his Honour’s interpretation for reasons to be given.
I now turn to a consideration of the above matters in detail.
PART 1: THE STRICT BOUNDARIES OF RTA S 175(3)(ba)
The boundaries of RTA s 175(3)(ba) must be strictly adhered to. SAPOL has no obligation to obtain or use a RTA s 175(3)(ba) certificate in a speeding prosecution; they are quite able to prove such a charge without resorting to that procedure. However, if SAPOL do wish to obtain the significant advantages of that procedure (and thereby subject the defendant to the significant disadvantage of a reversal of the onus of proof), there must be strict adherence to the requirements and limits of RTA s 175(3)(ba).
Averment and certificate provisions
Legislative modification of the common law requirements concerning onus of proof in criminal proceedings is not a recent development. For present purposes, it is enough to notice three such legislative creatures (to which I will refer compendiously as “averment and certificate provisions”).[10] The first is a legislative endowment of certain specified written allegations and/or averments in a charging document (such as a complaint, information or indictment) with the effect of erecting a presumption concerning those specific facts (an averment procedure).[11] An example is furnished by RTA s 175(1).[12]
[10] Although the history of these creatures may be traced separately, their effect is largely the same, as has been the approach of the courts to them. Therefore, although perhaps not historically pure, I will refer to all forms of words endowed by legislative provision with an ability to erect some type of factual presumption, whether appearing in a charge instrument (and whether as part of an element of the offence charged or as a further “freestanding” averment of a matter desired to be proven by the prosecution) or in a certificate, as “averment and certificate provisions”.
[11] In a broader context, in Brady v Thornton (1947) 75 CLR 140, 145, Latham CJ observed that:
“‘Averment’ must here be understood as meaning allegation contained in the information, complaint, declaration or claim as the case may be.”
[12] An allegation in a complaint of any of the particular matters specified in s 175(1).
A second such creature is a power bestowed upon a specified class of persons to assert a prescribed assertion of fact in a notice which, on production to a court, may have the effect of erecting a presumption concerning the prescribed assertion of fact (a notice procedure). An example of a notice procedure is furnished by RTA s 175(3)(ab) and (ac).
A third such creature is a power bestowed upon a specified class of persons to certify a prescribed assertion of fact in a certificate which, on production to a court, may have the effect of erecting a presumption concerning the prescribed assertion of fact (a certificate procedure). An example of a certificate procedure is furnished by s 175(3)(ba), the subject of the present case.
The common law courts have made very clear that averment and certificate provisions are to be strictly construed and strictly complied with. Thus in an oft cited article in the Australian Law Journal, Mr William Paul stated:[13]
The well-known and long established general rule at common law relating to the proof of criminal charges is, of course, that prima facie the accused person is presumed to be innocent, and that it lies upon the prosecutor to prove his charge beyond reasonable doubt. Another rule, diametrically opposed to that of the common law, is said to prevail in Continental codes of criminal practice, under which the accused person is, in effect, on his trial, presumed to be guilty, and must prove his innocence as best he can. See Stephen’s Criminal Law of England pp 162-168, 4300491.
The time-honoured common law rule has, however, of late fallen on evil days, and grievous inroads have been made on its integrity by many Commonwealth Acts which enact that in the proof of offences against the Act the averment of the prosecutor shall be deemed to be proved in the absence of proof to the contrary.
[13] (1940) 14 ALJ 4, 4. Mr Paul was a frequent contributor to the Australian Law Journal and the author of Justices of the Peace (Law Book Co, 1^st ed, 1936).
In similar vein, Mr Kevin Anderson (later Anderson J of the Victorian Supreme Court) observed in a later number of that same journal:[14]
A development of what Higgins, J, in Baxter v Ah Way (1909) (10 CLR 212 at p 216) describes as “apparently subversive of the first principles of justice” has made its appearance in a substantial and increasing number of enactments, particularly those of the Commonwealth Parliament. This disturber of first principles is the “averment section”. Though, as Higgins, J, points out, experience has found such an expedient to be necessary in consequence of the peculiar difficulty of proving offences against the Customs (and, he could have added, other) Acts, the courts, especially the High Court of Australia, have looked with scant favour upon the handiwork of the draftsman who has sought to extinguish “the beacon light of British Criminal Law”, the rule that every element of a criminal charge must be strictly proved. [Footnotes omitted.]
[14] (1945) 19 ALJ 102, 102.
The learned author there later observed:
It is evident from the form of the averment provisions that this type of evidence in criminal cases can easily lead to abuse. ...
“Perhaps the modern types of legislation which have been mentioned and which tend towards the abrogation of those principles,” said Davidson, J, in Ex parte Gerard and Co Pty Ltd; Re Craig (1944) (44 SR (NSW) 371 at pp 380-1), referring to the presumption of innocence in criminal cases, “may be pointed to by future legal historians as a first stage in a retrogression to the past when government departments found it too tedious to procure evidence of the guilt of persons charged with crimes.” “No matter what the charge or where the trial,” said Viscount Sankey, LC, in Woolmington v Director of Public Prosecutions (1935) AC 462 at pp 481-2), “the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.” It should be equally preserved by the vigilance of Australian courts. The High Court, which has provided “a firm bulwark against such heresies,” has found many occasions on which to reject as bad attempts to use the averment section, and will carefully scrutinise the provision in whatever form it appears.
More recently, Professor Brown in his work Documentary Evidence in Australia observed in relation to statutory certificates:[15]
In efforts to streamline various parts of the legal process, legislatures have passed many statutes that give special evidentiary weight to certificates from certain office-holders about matters within their competence. These certification provisions are usually applicable to criminal proceedings, and are designed to ease the gaining of convictions. It is not, in the author’s view, a legitimate use of the law of evidence to achieve such ulterior purposes, and the courts have some scope for rendering such certificates of minimal real value if they consider the proper functions of the criminal law and the courts are being obstructed.
[15] R A Brown, Documentary Evidence in Australia (The Law Book Company Limited, 1988) 73.
It is against the above background that it is stated in Cross on Evidence[16] that an “averment must be drawn with precision and clarity because otherwise it will have no evidentiary effect.” In similar vein, Derrington J observed in Charlton v Rogers; Ex parte Charlton (Charlton) that:[17]
The use of averments in this way is a powerful weapon which is given to the prosecution and accordingly must be exercised with due precision. This does not mean that it will be defeated by excessive or artificial scrutiny, but on substantive points a proper standard of accuracy is essential, in default of which the averment will fail.
[16] J D Heydon, LexisNexis Butterworths, Cross on Evidence, vol 1 (at service 166) [7105].
[17] (1985) 82 FLR 40, 41.
In Gallagher v Cendak, Vincent J reviewed the law in the context of averments which deem a prima facie case (a context much less serious than the present which involves an actual reversal of the onus of proof in relation to an important matter). His Honour stated:[18]
[18] [1988] VR 731, 739.
Nonetheless, averments do constitute prima facie evidence of the matters alleged within them, and accordingly there are repeated warnings throughout the authorities emphasising the care with which they must be approached.
In R v Hush, at pp 500-1 it was held that: “... the facts and circumstances constituting the offence ... should be stated fully and with precision”, while in Ex Parte O’Sullivan; Re Craig [1944] NSW St Rp 28; (1944) 44 SR (NSW) 291, Jordan CJ said, at p 299, that: -
“The function of an information is to aver, that is, to allege, against the accused matters which, as alleged, constitute an offence. ... That which the accused may reasonably require by way of particulars is the measure of what may with propriety be included in the averment of the information in addition to the allegation of the offence. It is not permissible to stuff an averment with a statement of detailed facts which it is hoped to prove in evidence”, and later, at p 303, when dealing with a mixed question of fact and law: “... I think that, except in cases where the disengagement of the law from the facts can be clearly and easily accomplished, the safe course, especially in cases tried with a jury, is to place no reliance upon mixed averments, lest a slip in doing so should invalidate a conviction which could otherwise be supported.”
Davidson J gave a strong warning, in relation to their use in Ex parte Ryan; Re Johnston (1942) 60 WN (NSW) 106, at pp 109-10: -
Unfortunately the practice is developing of attempting by a dimly concealed device to throw upon accused persons the burden of proving their innocence, when there is apt to be difficulty in establishing guilt in certain classes of offences in respect of which convictions are earnestly desired. ... The simple expedient is therefore adopted to transforming a description of such conduct into presumptive guilt of a criminal offence merely by making a charge in an information in carefully framed language.
The following year, his Honour again made some strong comments in the case of Ex parte Gerard and Co Pty Ltd; Re Craig [1944] NSW St Rp 30; (1944) 44 SR (NSW) 370, at pp 380-1: - “Perhaps the modern types of legislation which have been mentioned and which tend toward the abrogation of those principles (referring to the presumption of innocence) may be pointed to by future legal historians as a first state in a retrogression to the past when government departments found it too tedious to procure evidence of the guilt of persons charged with crimes.”
Vincent J referred to Derrington J’s statement in Charlton and continued:
With great respect to each of the learned Judges whose views have been set out above, in my opinion they are entirely correct in requiring that averments be drawn with care and precision and that the Courts should remain sensitive to the possibility of injustice arising from their use. It must not be forgotten that although they are ascribed the status of prima facie evidence, averments are none the less mere allegations. Their employment can create a risk that a conviction may be recorded against an individual where there is actually no evidence adduced against the alleged offender other than the making of such an allegation.
… The convenience which averments bring to prosecuting authorities needs to be carefully balanced against the possible unfairness of their use to a defendant and the risk that there may be, whatever the authorities may say, a de facto reversal of the onus of proof.
The decision of Bright J in Law Society (SA) v Tom is a good example of a strict approach to a certificate taken by this Court. There, the Law Society purported to rely on an evidentiary provision and a purported certificate by its chief executive officer. His Honour stated:[19]
I start with a view that those who rely on certificates issued on statutory authority as evidentiary short cuts should strictly conform to the statutory requirements. Some slight departure may not cause the certificate to cease to be a “statutory certificate”. But where the certificate quotes a wrong authorization, includes matter which is outside the authorization and omits matter which is fundamental to the authorization, all of which apply to the present certificate, then in my view it loses its statutory authority. It simply is not a certificate authorized by sub-s (5). I therefore agree with the learned Special Magistrate that it is a nullity. (Emphasis added)
[19] (1974) 8 SASR 517, 523-524.

Vanstone J more recently stated in Police v Eiffe:[20]
Speaking generally, I would have expected that where a provision casts an evidentiary burden on a defendant — provided certain preconditions are met — it would be appropriate to interpret those preconditions fairly strictly. See, for example, R v Hush; Ex parte Devanny(1932) 48 CLR 487 at 500; Jambajimba v Svikart (1984) 71 FLR 287 at 291ff; Ex parte O'Sullivan; Re Craig (1944) 44 SR (NSW) 291 at 300 per Jordan CJ. It should not be difficult for the draftsman to adequately describe the motor vehicle allegedly used.
[20] (2007) 98 SASR 79, 85.
And in Police v Young, it was stated:[21]
[27] Having regard to the grave effect upon a defendant of the effective reversal of the onus of proof consequent upon the use of the certificate procedure, it is vital to delineate precisely the boundaries of what the prosecution may, and may not, certify (thus enlivening that effective reversal) and to insist upon strict observation of those boundaries.
[21] (2012) 114 SASR 567, 576.
The only permissible certifiable fact
It follows from the strict approach to a reversal of the onus of proof provision, that the only permissible certifiable fact in a RTA s 175(3)(ba) certificate is “that a specified TSA had been tested on a specified day and was shown by the test to be accurate to the extent indicated in the document”. This approach is now well accepted. In Police v Young it was stated:[22]
[22] (2012) 114 SASR 567. This decision has been consistently followed in South Australia and is accepted as correct by counsel for the respondent in each of Hanton, Henderson and Miller.
[27]    Having regard to the grave effect upon a defendant of the effective reversal of the onus of proof consequent upon the use of the certificate procedure, it is vital to delineate precisely the boundaries of what the prosecution may, and may not, certify (thus enlivening that effective reversal) and to insist upon strict observation of those boundaries.
[28]    Section 175(3)(ba) must be read quite carefully. I strongly emphasise that the certificate procedure does not enable the prosecution to certify any fact that it might wish to. The prosecution is not enabled to simply certify at what speed the subject vehicle was travelling at a particular time and nor is it enabled to certify as to the accuracy of the relevant device in a vacuum.
[29]    Rather, the prosecution is enabled, and only enabled, to certify the fact which is delineated in s 175(3)(ba) and which I will refer to as “the permissible certifiable fact”, namely:
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
[30]    At the risk of labouring the point, what the prosecution is not able to do is to make two free-standing, or independent, averments, namely:
1.     the specified traffic speed analyser was tested on a specified day;
2.     the specified traffic speed analyser was accurate to the extent indicated in the certificate.
[31]    The vice of such a purported “certificate” in that form would be that it would tend to convey the (wrong) impression that if the first assertion that the traffic speed analyser was tested on a specified day was successfully challenged by a defendant (for example, by compelling evidence that no testing had in fact occurred on that day), that would still leave operative the second independent averment (that the traffic speed analyser was accurate).
[32]    Of course, the true effect of the certificate procedure is that the prosecution is only entitled to aver the permissible certifiable fact as set out above, “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”. Thus, in the example referred to above of compelling evidence establishing that no testing had in fact occurred, the certificate procedure would ipso facto fail because accuracy had not been demonstrated by that non-existent testing.   (Emphasis added)
In Butcher (No 2), Stanley J upheld on appeal a dismissal of the complaint by a Magistrate. His Honour followed Young and stated:[23]
In this regard it is important to recognise that the persuasive onus the respondent bore at trial was not to prove that the speed gun was not accurate to the extent indicated in the certificate but that the test conducted by Senior Constable Goldsmith on 14 September 2012 did not show that the speed gun was accurate to that extent. The evidence before the magistrate was sufficient for him so to find. (Emphasis added)
[23] [2016] SASC 130.
PART 2: THE IMPORTANCE OF THE “STATUTORY TEST”
RTA s 175(3)(ba) requires as the central subject of a certificate, that a specified TSA unit had been tested on a specified day and was shown by the test to be accurate to a particular stated extent; this test is referred to herein as “the statutory test”. The function of the statutory test is to show the extent of accuracy the TSA unit actually has at the time of that statutory test as distinct from what might be asserted or purportedly specified by: design specifications, manufacturer’s instructions or Australian Standards; neither the requirements of the statutory test nor its central importance can be impinged upon by such matters or by SAPOL’s actions in adopting various internal procedures.
The fact that a particular TSA unit tested may be used to measure the speed of multiple vehicles, and potentially may lead to charges concerning apparent excessive speed by such vehicles, emphasises and confirms the need for the statutory test to be properly carried out.[24] Considered in this way, it can be seen that RTA s 175(3)(ba) starts with, and primarily focuses upon, the statutory test. It is not directly concerned with a particular speeding prosecution.
[24] RTA s 175(3)(ba)(i) and (ii) require that the required proximity in time of the statutory test and the subject driving must be close; in all cases other than a TSA mounted in a fixed housing, the required proximity is a period of one day immediately following the day of testing (which period applies to the handheld TSA used here). For a TSA mounted in a fixed housing the required proximity is a period of 27 days immediately following the day of testing.
The statutory test must show the TSA unit’s actual extent of accuracy
The statutory test is concerned only with showing the extent of accuracy the TSA unit actually has at the time of that statutory test. It is important to note two matters here.
First, a RTA s 175(3)(ba) certificate does not specify a minimum level of accuracy that must be generally attained by TSAs; rather, the statutory test simply shows the actual extent of accuracy of the particular TSA unit when tested on a particular day.
The second, and related, important matter to note is that the actual extent of accuracy of a particular unit of a particular make and model TSA on a particular day as shown by the statutory test (on the one hand), and an extent of accuracy claimed or purportedly specified for that make and model of TSA by its manufacturer or by Australian Standards or by SAPOL (on the other hand) may be two quite different things. The primacy of the statutory test may not be impinged upon by things such as manufacturer’s claims and instructions or by Australian Standards or by actions taken by SAPOL in adopting various internal procedures.
The mode of expression of the statutory test
Since the statutory test is simply a test to show the extent of accuracy of the particular TSA unit at the time of its test on a particular day, the result of the statutory test does not necessarily have to be expressed in terms of a “margin’ or “limit” of error; or in terms of plus X or minus Y kilometres per hour (although it may be expressed in such terms). For example, if the testing is done by the TSA unit measuring the speed of a police car (with a properly calibrated speedometer), the certifying senior police officer may sufficiently state “the extent of accuracy” in the certificate by referring to the two respective indicated speeds of the TSA unit and the speedometer of the police car respectively; there are many cases over the years in which the certificate will be found to be expressed in these terms. A recent example is Police v Dinovitser[25] where the certificate stated that the TSA unit: “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.”
[25] [2016] SASC 77.
Obviously, absolute accuracy of a TSA is not required; any deviation from a claim of 100 per cent accuracy is to admit some level of inaccuracy. Thus in the central decision in Pereth v Linnane,[26] the RTA s 175(3)(b) certificate averred that “… when the speedometer on the vehicle was registering 60km/h and 100km/h respectively, the actual speed of the vehicle was 57km/h and 98km/h respectively.” It was argued that the police speedometer was inaccurate and the certificate had no evidential value without further evidence as to how the information on it should be interpreted. Cox J rejected this argument and stated:
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 100km/h, was exceeding the speed limit in a 60km/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]
[26] (1983) 33 SASR 442.
In similar vein, it was more recently observed in Police v Dinovitser:[27]
[34] In order to understand how the courts approach such a situation, it is first necessary to note, as was stressed in Police v Young,[28] 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.
…
[44] … a valid s 175 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.
[27] [2016] SASC 77.
[28] (2012) 114 SASR 567, 576-577 [27]-[34].
The statutory test must show that the TSA unit was accurate to a particular specified extent
But what the legislation has always required is that the statutory test must in fact show that at the time of the test the particular TSA unit was accurate to a particular specified extent (which extent must be stated on the face of the certificate).
The precise meaning of the word “show” in the present context is considered in further detail below. However, the present important point is that, until recent times, the tests used by SAPOL have revealed exactly how the statutory test was carried out and exactly what the result was. And the Magistrate has thereby been able to adjudicate as to whether the particular charge was proven beyond reasonable doubt having regard to the parameters of accuracy (or inaccuracy) of the particular TSA unit in the context of the whole of the evidence before the court.
External and internal testing of complex devices
There is a clear and important distinction between external and internal testing of complex measuring devices. External testing occurs when one tests the accuracy of a device by reference to an external standard that can be seen to be trustworthy. Thus, for many years, SAPOL has complied with the statutory test requirement in RTA s 175(3)(ba) by using the well-known and accepted process of testing the TSA by measuring the speed of a police car fitted with a calibrated speedometer, the certifier stating the extent of accuracy in the certificate by reference to the indicated speeds of the TSA and the speedometer of the police car. There is nothing in this judgment, or any other judgment, that prevents SAPOL from continuing that practice.
Internal testing occurs when one purports to test the accuracy of a device by reference to a so called internal testing procedure whereby the machine to be tested wholly or partly administers the test itself. Of course, a certain amount of humour can be seen in this latter situation, but mere ironic reference to the questionable value of such a “safeguard” (or to “Computer Says No”[29]) is really not enough, particularly when the thing being measured (excessive speed) constitutes the subject matter of a criminal offence, as to which the onus of proof is being reversed. As we stumble towards a world ruled by computers, where intelligence is primarily “artificial”, we should perhaps recall previous intelligent discussions of problems very similar to those we now face.
[29] Little Britain circa 2005. Perhaps this reference is dated already.
The need for transparency in this area is hardly new; it has been stressed throughout the history of this legislation. On 16 September 1964, during the advent of “radar” speed detection (a forerunner of “Lidar” speed detection), the Honourable Sir Arthur Rymill, consistently with the expressed views of a number of his fellow legislative councillors, stressed the distinction between a machine being externally tested (against a calibrated speedometer in a police vehicle) and the strange (if not amusing) spectacle of a purported internal test being carried out by the very machine sought to be tested:[30]
The Hon Sir ARTHUR RYMILL: The Minister has apparently indicated that he is going to move that progress be reported. I would like him to consider whether this clause should provide for the method of testing the machine to be included in the certificate. The clause stipulates that the certificate shall state that it has been tested. We are entering a scientific realm that I know very little about, but I do know there are several methods by which the machine can be tested and some may be more accurate than others. For instance, if the machine were tested against a police car with a speedometer that had been tested that would be fairly conclusive, but if tested against its own calibrator that might not be satisfactory as it could be out of calibration as well as the article being calibrated. I hope I am not out of date in this matter, but I share to some degree the concern expressed whether this machine can accurately determine the speed of a vehicle.
It is one thing to have a speedometer and be able to test it with a mechanical device, but it is quite another thing to have a scientific machine that the ordinary man in the street does not understand at all, and to have that machine testify against that man. It would be impossible for him to prove the machine wrong. That is why I fear even this prima facie evidence, because prima facie means that if you cannot controvert the evidence it will stand against you. In such a case I feel the scales would be weighted against the ordinary man in the street in having an electronic device that he does not understand put up against him with the assumption that it is right without his knowing anything about it.
(Emphasis added)
[30] South Australia, Parliamentary Debates, Legislative Council, 16 September 1964, 724.
To put those remarks in context, it is well to have a closer look at the legislative history of RTA s 175(3)(ba).
The legislative history of RTA s 175(3)(ba)
Prior to the enactment of the Road Traffic Act 1961, there existed the Road Traffic Act 1934 (the 1934 Act). When the 1934 Act commenced there was not any provision in any way similar to the present s 175(3)(ba). However, in 1938 the following sub-s was inserted within s 157:[31]
(3)An apparently genuine document produced by the prosecution and purporting to be signed by the Commissioner of Police or the Superintendent or any Inspector of Police and to certify that any stop watch or speedometer specified therein had been tested and found correct on any date specified therein shall be prima facie evidence that that stop watch or speedometer was correct on each of the fourteen days following that date.
[31] By operation of the Road Traffic Act Amendment Act 1938.
The 1934 Act was repealed by the Road Traffic Act 1961. Section 157(3) of the 1934 Act was re-enacted in similar terms as s 175(3):
(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 a superintendent or an inspector of police, and purporting to certify that any stop-watch or speedometer specified therein had been tested on a day mentioned therein and was shown by the test to be accurate to the extent indicated in the document, shall be prima facie evidence of the facts certified and that the stop-watch or speedometer certified was accurate to the said extent on each of the fourteen days following the day of the test.
At the time of the enactment of the Road Traffic Act 1961, there was no certificate provision relating to “electronic traffic speed analysers”. However, in 1964 there came before Parliament a bill entitled the Road Traffic Amendment Bill (General), clause 28 of which proposed the enactment of a new sub-s to be inserted in s 175(3) thus:
(ba)a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or by a superintendent or an inspector of police, and purporting to certify that any electronic traffic speed analyser specified therein had been on a day mentioned therein and was shown by the test to be accurate to the extent indicated in the document, shall be prima facie evidence of the facts certified and that the electronic traffic speed analyser was accurate to that extent on the day in which it was so tested; and
The Parliamentary debates show a good deal of concern concerning the new “electronic traffic speed analysers” (“radar”) and the testing of such machines. Topics discussed included the necessary frequency of testing; the question of in situ testing at the speed detection site; and particularly the nature of the testing to be adopted. This last matter included a good deal of discussion of the important distinction between “external” testing of a device (by comparison to a source external to the device being tested) and “internal” testing of a device (testing by using a function inside the very device to be tested); indeed what I regard as a healthy distrust of internal testing led to the Government consenting to a further amendment of the Bill making plain that external testing was to take place contemporaneously with speed detections.

Thus, in the Legislative Council on 16 September 1964, the Honourable Sir Arthur Rymill, stressed the distinction between a machine being externally tested (against a calibrated speedometer in a police vehicle) and a purported internal test generated by the machine itself and made the remarks reproduced above.[32] On the following day, 17 September 1964, he continued:
… The clause has been inserted to make the machine indication positive evidence of a breach, unless the defendant can disprove it. Members want the machine to be more regularly tested by the calibration test, and also to have each day the more accurate test by the police car.That is what the maker recommends, but it is not what the clause says.
(Emphasis added)
[32] South Australia, Parliamentary Debates, Legislative Council, 16 September 1964, 724.
A little later, further dialogue culminated in the passage of the amendment:
The Hon R C DeGARIS: This amendment states that any electronic traffic speed analyser must be tested on the day it is used. Is that test the same as a calibration test or does the calibration test differ from the test referred to in this amendment?
The Hon N L JUDE:     The main test is a test between a police car with a tested speedometer and the machine. If the speedometer of the car agrees with the reading on the meter of the machine, the machine is accepted as operating satisfactorily. The calibration test is a test of an internal circuit which checks the machine internally, as in the case of a crystal locked transceiver set which, if it is not locked on the correct wave length, does not work. The police test, done before the checking of the traffic takes place, is carried out by means of a police car passing through the beam.
…
The Hon Sir ARTHUR RYMILL:     The Minister spoke of an in-built test of the machine and an external test with a motor car. I point out that this amendment refers merely to “test”; it does not say “external test”. A test is a test if it is in any way testing the accuracy of the machine. I imagine that a calibration test is a test of the accuracy of the machine. I suggest that, if we used the phrase “externally tested”, the Minister might get over his difficulties.The amendment would then read: … any electronic traffic speed analyser specified therein had been externally tested on a day mentioned …
That is all that is needed.
The Hon Sir FRANK PERRY: I agree with the Minister’s statement about checking the machine. … While we have every sympathy with the Government in its attempt to enforce the law, we must have some regard for the motorist who may be charged and convicted on evidence of this sort. We are asking the courts to accept this as satisfactory evidence. This provision should be modified. … A motorist who may be penalized for an offence on this evidence needs to be satisfied that everything is done to ensure that his conviction is justified and that he has not been charged with an offence he has not committed.
…
The Hon N L JUDE:     I have listened with some interest to the continual expression of doubt. We do not want to get into a legal controversy but Sir Frank Perry suggests that the verbiage could be simplified and made more explicit. The Parliamentary Draftsman has suggested that we might add the words “by comparison with an accurate speedometer” after the words “purporting to certify that any electronic traffic speed analyser specified therein had been tested”. If that will satisfy honourable members, I am prepared to add those words to the amendment.
The Hon Sir ARTHUR RYMILL:     I am prepared to vote for the clause if it contains that amendment.
The Hon Sir FRANK PERRY: That satisfies me.
The Hon N L JUDE:     I ask leave to amend the amendment as follows:
After “tested” first occurring to insert “by comparison with an accurate speedometer”.
Leave granted; amendment as amended carried.   (Emphasis added)
And so it was that s 175(3)(ba) came to provide as follows (with the aforesaid amendment emboldened):[33]
(ba)a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or by a superintendent or an inspector of police, and purporting to certify that any electronic traffic speed analyser specified therein had been tested by comparison with an accurate speedometer on a day mentioned therein and was shown by the test to be accurate to the extent indicated in the document, shall be prima facie evidence of the facts certified and that the electronic traffic speed analyser was accurate to that extent on the day in which it was so tested; and (Emphasis added)
[33] Road Traffic Amendment Act 1964 (No 2).
Section 175(3)(ba) has since been amended.[34] I note that in 1981, the words “by comparison with an accurate speedometer” were deleted, but only on the basis that Parliament was assured that external testing by reference to a calibrated speedometer was continuing. During the second reading speech it was said by the Honourable K T Griffin, the then Attorney-General:[35]
Its principal object is to amend one of the evidentiary provisions of the Act that relates to the accuracy of traffic speed analysers (that is, radar equipment). Radar equipment is tested against a speedometer that is accurate to an extent certified in a separate certificate.To say, therefore, as the section in question presently provides, that the equipment is tested against an “accurate” speedometer is incorrect and has caused unwarranted difficulties in some prosecutions for speeding offences. (Emphasis added)
[34] In 1973, by s 14(f) of the Road Traffic Amendment Act 1973 the words “shall, in the absence of proof to the contrary, be proof” were substituted for the previous provision “shall be prima facie evidence”. In 1979, by s 25 of the Road Traffic Act Amendment Act 1979, the following words were added at the end of s 175(3)(ba): “… 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 analyser was tested or the circumstances of the measurement different in any other respect from the circumstances of the test”.
In 1984, by Schedule 5 of the Statute Law Revision Act 1984, the words “any electronic traffic speed analyser specified therein had been tested on a day mentioned therein” were struck out and replaced with the words: “a specified traffic speed analyser had been tested on a specified day”.
In 1999, by the Road Traffic (Proof of Accuracy of Devices) Amendment Act 1999, the required time proximity provision was changed slightly to include not just the day on which the speed analyser was tested, but also “on the day following that day”.
In 2003, by the Statutes Amendment (Road Safety Reforms) Act 2003, s 175(3)(ba) was repealed and replaced with the sub-section in its present form as reproduced at paragraph [15] above.
[35] Section 2 of the Road Traffic Amendment Act 1981. See South Australia, Parliamentary Debates, Legislative Council, 4 March 1981, 3457.
SAPOL’s internal procedures cannot impinge upon the statutory test
A problem that has arisen, perhaps incrementally, is that SAPOL have (in purported compliance with the statutory test), attempted to erect a system whereby the result of the last “calibration test” of a TSA unit (if it occurred within the previous 12 months) will be taken to be the current extent of accuracy of that unit, provided that the rudimentary test (which may be referred to as the five step test plus calibration check procedure) is “passed”. What has been lost sight of is that RTA s 175(3)(ba) requires that first, the statutory test be performed proximate to the measurement of the speed the subject of a charge and second, that the statutory test must itself show that the TSA unit is then accurate to a particular stated extent.
The five step test plus calibration check procedure is described in similar terms in each of the three cases of Hanton, Henderson and Miller presently under consideration and in a number of previous cases. Thus in Hanton, senior constable Piercy in his evidence-in-chief, after stating that the TSA unit was within calibration date, described his “testing” of the TSA unit on 19 July 2017 thus:
HIS HONOUR
QWhen you go through that test what do you do?
ASo the first test is a visual test to ensure that it’s in working order. There are two labels on either side of the lidar, if they have been removed, or if they’re damaged that invalidates the lidar. They were in perfect working order on the day. The second test is a self-test which tests the internal circuitry of the lidar. Very simply you can either pull the trigger or turn the power button on and if an error code comes up on the LCD screen the instrument would have to be defected. On this occasion there were no errors. The third one is the display test. There are two displays on the lidar. There is the in scope which is the bit that you physically look through and on the front there is an LCD. You need to – again, there is a button on the back of the lidar you need to press and that will show up the segments in your in scope and your LCD if there are any anomalies or anything is missing it needs to be defected because that could give a false reading. Then there is –
XN
QNo defects?
ANo, no.
HIS HONOUR
QThe fourth test.
AScope alignment test, which in lay terms is to see whether the crosshairs in the scope are lined up with the beam itself and to test that you pick a fixed object, minimum of 70m away, preferably a stobie pole or a vertical object and looking through the scope you will move it across the object and if there’s a change in pitch when the crosshairs move across that object it means that the laser or the beam is aligned. So that’s the fourth test that we do.
XN
QDid that test pass?
AYep.
QThe fifth is the fixed distance zero velocity test which ensures that the instrument is calculating measurement, distance and time accurately and a – over a 20m length – it is conducted over a 20m length, a disc on a fixed object you align the beam, pull the trigger and it will give you a reading and there were no anomalies in the reading that were received from that test either.
HIS HONOUR
QAs an operator all the procedural tests that you’ve been trained to do, appeared to show to you that the instrument was functioning as you were instructed it should function?
AYes.
QRight.
XN
QDid you note the results of those tests anywhere?
AYes.
QWhat did you note?
AIn our field test book.
QDid you indicate that all those tests had passed?
AYes.[36]
[36] See further discussion of Piercy’s evidence below.
However, in none of the cases, including Hanton, has there been expert evidence called to explain how it is that “passing” the five step test plus calibration check procedure can show the TSA “to be accurate to the extent indicated in the document” as is required by the statutory test in RTA s 175(3)(ba).
Problems presented by the “five step test plus calibration check” procedure
The main problems that arise may be explored by first considering the five step test and then considering the additional matter of the calibration check.
The five step test is almost entirely an internal check generated by the TSA itself; the only introduction of an external standard is the measuring of a 20 metre distance leading to a fixed stationery object and requiring the TSA to give a correct measurement of the distance to the fixed object (20 metres) and a correct measurement of its speed (0 kilometres per hour).
The critical point is, as stated above, that the statutory test must not be impinged upon by SAPOL’s internal procedures. The adoption by SAPOL of internal procedures such as the five step test plus calibration check procedure must not be considered, in any way, to be a substitute for the required statutory test in RTA s 175(3)(ba). The statutory test must be transparent; the question of whether it does in fact show the TSA to be accurate to the extent indicated in the document must be able to be adjudicated upon by a court. While the defendant has the onus to prove that the statutory test failed to show that the TSA was shown by the test to be accurate to the extent indicated in the document, if the defendant does discharge that onus, the prosecution loses the presumption.
The calibration check
The calibration check refers to a procedure adopted by SAPOL that a calibration report on each TSA be done annually.[37] However, RTA s 175(3)(ba) does not require that a TSA be subjected annually to a particular additional test as to its accuracy (whether such a test be styled as a “calibration report” or otherwise). While it is obviously permissible for SAPOL to require such a procedure to be carried out in addition to the statutory test, such a procedure cannot be considered, in any way, to be a substitute for the required statutory test in RTA s 175(3)(ba).
[37] Such requirement may, of course, be derived from manufacturer’s instructions or Australian Standards but this is not presently relevant to the question of the satisfaction of the statutory test.
It has been said in evidence by police officers on a number of occasions that the calibration check aspect of the five step test plus calibration check procedure is restricted to a simple check that a calibration test has been performed within a period of one year prior to the subject driving. However, in all of the cases “the extent of accuracy” that is entered on the RTA s 175(3)(ba) certificate is exactly the same as that stated on the calibration report. It will be seen here in Hanton below, and in both Henderson and Miller, that the Magistrate (in the absence of any explanation before him as to how the five step test can supposedly show the TSA to be accurate to the extent indicated in the document) has in effect permitted the calibration report to discharge the function of the statutory test.
This is plainly impermissible. Only the statutory test, a test that must be administered proximate to the subject driving, can discharge that function; a “calibration test” (which may be performed up to a year from the subject driving) cannot take the place of the required statutory test.
PART 3: THE SENIOR POLICE OFFICER’S TASK
The senior police officer must actively consider whether “the statutory test” did in fact show that the TSA unit was, at the relevant time, accurate to a particular specific extent; and he or she must be able to specify that particular extent of accuracy that is thereby shown by the statutory test. These requirements must be clearly distinguished from merely being of a general belief that the TSA is accurate, whatever might be the basis of such a belief.
The terms of s 175(3)(ba) are not satisfied simply by the giving of a written notice. The meaning of the word “certify” is important. The Shorter Oxford English Dictionary defines “certify” thus:
Certify ... 1. To make (a thing) certain; to guarantee as certain; to give certain information of. 2. To declare or attest by a formal or legal certificate 1461. 3. To make (a person) certain (of); to assure; to give (a person) legal or formal attestation (of) ME. 4. intr. To testify to, vouch for 1625. (Emphasis added)
Further, the use of the pluperfect tense “had been” in s 175(3)(ba), as well as the subsequent use of the past tense “was” is also important. It emphasises that the senior police officer is obliged to consider whether the statutory test made at a time proximate to the actual testing process did in fact show that the TSA unit was then accurate to a particular specific extent; and the senior police officer must be able to specify in the certificate the particular extent of accuracy that was so shown.
Thus, a certifying senior police officer must conscientiously comply with a solemn and important process of certification to the courts of South Australia[38] in circumstances where the certificate, if issued, may have the effect of in itself proving a central aspect of a prosecution case beyond reasonable doubt. I emphasise that it is not suggested that the certifying senior police officer must be an expert before he or she is able to assess relevant information and give one of the three possible answers referred to below; rather, a senior police officer will be taken to be familiar with accepting serious responsibilities and assessing information so as to reach a required state of mind.
[38] Most such certificates will be used in the Magistrates Court, but they will continue to be relied upon by the prosecution should the matter proceed by way of appeal to the Higher Courts. Further, such certificates are not infrequently used in trials in the Higher Court’s in relation to charges such as cause death by dangerous driving.
The required state of mind of the certifying senior police officer
RTA s 175(3)(ba) grants to a narrow class of persons a power, the exercise of which very seriously affects both the rights of a defendant to a criminal charge and the usual course of a common law trial. While the way in which that power is to be exercised is not spelt out, neither is the way in which many and various other statutory powers are to be exercised by many and various other officials. As a matter of statutory interpretation, the common law touchstone in such cases is that the power must be exercised reasonably.
I make these comments solely on the basis of principles of statutory interpretation of the Road Traffic Act 1961 and for the reason that in interpreting the aspects of RTA s 175(3)(ba) that are directly in issue here it is at the least helpful to be able to present an holistic interpretation of the whole of that provision. In particular, I make clear that I do not here address remedies in the nature of judicial review. No such remedy was sought prior to, or contemporaneously with, the trial of the complaint in the Magistrates Court; and nor was it attempted to challenge collaterally the validity of the RTA s 175(3)(ba) certificate at that trial, or on this appeal. It is unnecessary for me to refer to the difficulties that such attempts may, or would, have faced and I will not be venturing into such thorny thickets.
With that disclaimer at the forefront, I simply observe that the applicable principles of statutory interpretation and the common law approach to appeals of the present type (with which matters I am concerned) are not far apart from the principles applicable to administrative law. Relatively recent assistance along those lines is furnished by the High Court decision in Minister for Immigration and Citizenship v Li where Hayne, Kiefel and Bell JJ stated:[39]
[63]    Because s 363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is not derived only from s 357A(3), but also from a presumption of the law. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.
[64]    A standard of reasonableness in the exercise of a discretionary power given by statute had been required by the law long before the first statement of “Wednesbury unreasonableness” in Associated Provincial Picture Houses Ltd v Wednesbury Corporation. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002, McHugh and Gummow JJ instanced the 1891 decision of Sharp v Wakefield.In Re Refugee Review Tribunal; Ex parte Aala, Gaudron and Gummow JJ said that the requirement of reasonableness represents the development of legal thought which began before federation and accommodates s 75(v) to that development.
[65]    In Sharp v Wakefield, it was said that when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by “according to law”. It is to be legal and regular, not arbitrary, vague and fanciful. The discretion must be “exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself”. It is pointed out in Wade and Forsyth that the legal conception of discretion dates from at least the 16th century. In Sharp v Wakefield, Lord Halsbury LC had referred to Rooke’s Caseof 1598, in which it was stated that the discretion of commissioners of sewers “ought to be limited and bound with the rule of reason and law”.
…
[67]    In Klein v Domus Pty Ltd, Dixon CJ said that where discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority,requires nothing less. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.
[39] (2013) 249 CLR 332, 362.

Since the manufacturer’s instructions were not before the Magistrate and are not before this Court, the matter is left up in the air. However, if as urged by both the Magistrate and the respondent’s counsel, one were to rely on an application of AS 4691.1-2003 and AS 4691.2-2003 (as distinct from the manufacturer’s instructions) to the present case, then I consider that the correct conclusion, on the limited material that is before me in this case, would be that the Standards taken alone tend to indicate that no proper test for accuracy was carried out by Piercy.
PART 9: A FINAL WORD
It is appropriate to add that this judgment does not preclude SAPOL attempting to obtain the advantages of the RTA s 175(3)(ba) procedure in a number of ways. One obvious way is to carry out the statutory test by using the traditional method of testing the TSA against a police car speedometer (calibrated by external testing). SAPOL may consider that external testing of a hand held TSA by using a police car is cumbersome in that it requires (as it always has) two persons to perform it (one to operate the TSA and the other to drive the police car) and takes a bit longer than the five step plus calibration check procedure. However, these are matters of convenience, not legal issues.
However, if SAPOL wishes to attempt to rely on a purported five step plus calibration check procedure, and if it is possible to call detailed expert evidence to prove that the five step plus calibration check procedure does in fact “show that the traffic speed analyser is accurate to a particular specified extent”, then the calling of such evidence might not be as arduous as initially seems. If an expert[91] were to swear a detailed affidavit explaining how the five step plus calibration check procedure does in fact “show that the [particular make and model] traffic speed analyser is accurate to a particular specified extent”, such an affidavit (“lidar speed measurement expert affidavit”) might be used in several ways.
[91] Such an expert might well be an expert associated with the manufacturer of the traffic speed analyser in question, but it is not necessary that that be so.
First, in the context of a particular application to a senior police officer for a RTA s 175(3)(ba) certificate. If a copy of the sworn lidar speed measurement expert affidavit (in addition to the usual materials) were supplied to the senior police officer (and is carefully read and understood by him or her), the combination of all of the supplied material might establish a senior police officer’s belief on reasonable grounds justifying him or her in issuing the certificate. While copies of the same sworn lidar speed measurement expert affidavit might be used over a period of time in similar applications for RTA s 175(3)(ba) certificates regarding the same make and model of TSA, it would be necessary for an updated affidavit to be obtained should there be any significant change to the TSA the subject of the affidavit.
A second way in which a lidar speed measurement expert affidavit might be used is in connexion with trials (and pre-trial proceedings) which may involve the use of a RTA s 175(3)(ba) certificate. The Magistrate Court Rules 1992 and the Magistrate Court Consolidated Practice Directions deal inter alia with mutual disclosure and pre-trial conferences; and the possible tender of expert evidence at trial is quintessentially a matter for early mutual disclosure and full discussion at a pre-trial conference.
It is likely that if and when it is first sought to tender the content of a lidar speed measurement expert affidavit at a contested trial, lengthy oral evidence may be required.[92] However, as time goes by, the admissibility or inadmissibility of such evidence may become clear; and, if the evidence is admissible, it may be that cross-examination may come to be relatively rare and limited to particular discrete topics. It is not necessary to offer any further comment.
[92] It may well be that this could proceed by way of tendering the affidavit (subject to various defence objections) and hearing cross-examination rather than requiring both oral examination-in-chief and cross-examination.
CONCLUSION AND DISPOSITION
In conclusion, the Magistrate was required to have regard to the whole of the evidence in the case in order to determine whether the defendant had proven on the balance of probabilities that the purported statutory test failed to show the particular extent of accuracy of the TSA as specified on the certificate.
This Court is in the same position as the Magistrate to consider the materials that were before his Honour and to come to a conclusion as to whether either of the charges was proven. Questions of credibility of witnesses do not here arise.[93] I find, on a consideration of all of the evidence, that the appellant proved on the balance of probabilities that, although senior constable Piercy purported to “test” the specified TSA on 2 January 2017, that “test” failed to show that the TSA was accurate to the extent specified in the certificate.
[93] See Taylor v Hayes (1990) 53 SASR 282.
That being so, the prosecution should not have had the benefit of the presumption on either of the charges. During the hearing of the appeal, counsel for the respondent (correctly) conceded that if it is found that the prosecution cannot avail itself of the RTA s 175(3)(ba) presumption, then the other evidence of observations by Piercy cannot support a finding of guilt beyond reasonable doubt on either charge in the circumstances here. The result is that the complaint should be dismissed with no order for a re-trial.
In the alternative to the above line of reasoning, I find that the Magistrate erred in a number of important respects in his approach to, and analysis of, RTA s 175(3)(ba) and its present application. Those errors in themselves require that the findings of guilt on both counts be set aside. Again, the concession in the previous paragraph applies. However, this mode of determination leads to a consideration of the discretion to dismiss the complaint or to order a re-trial on the complaint.
This is not a case in which it would be appropriate to order a re-trial on either count. Before the trial commenced on 13 February 2018, the prosecution were aware that there was going to be a challenge to the application of the RTA s 175(3)(ba) presumption and that detective inspector Dunstone was to be subpoenaed by the defence to give evidence. At a pre-trial hearing on 6 June 2017 (at which Ms Stanley and APP Bradfield attended), Magistrate Smart granted permission for a summons on file to issue, returnable 12 January 2018, and permission to the parties to inspect and copy.[94] A pre-trial conference (at which Ms Stanley and APP Bradfield attended) was held before Magistrate Sprod on 6 December 2017 and the case was set down for trial. The prosecution were also aware from other litigation in the matters of Butcher (No 2) and Henderson that this general challenge extended beyond the Hanton case. The prosecution made a number of tactical decisions, including a refusal to call inspector Dunstone as a prosecution witness, so as to gain the advantage of being able to cross-examine him and of denying that ability to the defence. Most importantly, the prosecution declined to call any expert evidence of the type referred to by prosecution counsel on the hearing of the appeal in Henderson.
[94] It is unclear whether the subpoena for the attendance of detective inspector Dunstone at the trial was also issued then or on another occasion.
It would be unduly oppressive to order a re-trial having regard to all of the above matters and the following further matters:
-It would be unfair in all of the circumstances to allow the prosecution, having made the above choices, to have another chance to prosecute the appellant and possibly take a different tactical approach.
-While the alleged speed was high, the charge was driving at a speed (rather than manner) dangerous; there was nothing dangerous about the manner of driving. The driving was midweek, around the middle of the day and traffic was light. The area was semi-rural. The weather was dry and overcast. The condition of the motor bike was not faulted. No actual danger (as distinct from potential danger) was caused to any particular member of the public.
-The charges even now are quite stale; by the time of a re-trial, the charges would by then have hung over the appellant for an inordinate period of time with their associated features of worry, inconvenience and an interference with his personal and business affairs.[95]
-In both Butcher (No 2) and Henderson no submission was put by the prosecution that, the appeal having been allowed, there should be an order for a re-trial and no such order was made in either case.
[95] Whisprunn PL v Dixon (2003) 77 ALJR 1598, [51].
Accordingly, by reference to each of the alternative pathways referred to above,[96] the appropriate disposition is that the complaint be dismissed with no order for a re-trial to be made on either count.
[96] See Taylor v Hayes (1990) 53 SASR 282.
Disposition of the appeal
For the reasons above, I allow the appeal. I make the following orders:
1.     The appeal is allowed.
2.     The findings of guilt on count 1 and count 2 are set aside.
3.     The complaint is dismissed.
I will hear the parties as to costs of the trial and the appeal.
SCHEDULE ONE
Australian Standard 4691.2-2003
Laser-based speed detection devices
Part 2: Operational procedures
PREFACE
This Standard was prepared by Standards Australia Committee CS-098, Laser Speed Detection, following a request by a supplier of these devices for a performance specification and operating procedures for laser-based speed detection devices. The request has resulted in the preparation of a two part series of Standards. Part 1 covers definitions and device requirements predominantly for assistance to manufacturers and this Part (Part 2) covers operational procedures for users of these devices.
This Standard does not purport to be an exhaustive set of requirements for the metrological aspects of speed measurements by laser. The establishment of such requirements falls within the area of responsibility of the National Standards Commission (NSC) rather than Standards Australia.
This Standard has been prepared to take into account the state of the art of laser-based speed detection in Australia at the time of publication.
This Standard is not intended to inhibit further advances in laser-based speed detection technology. The Committee will consider amending the Standard to include suitable requirements for new types of equipment as they become available.
The term ‘normative’ has been used in this Standard to define the application of the appendix to which it applies. A ‘normative’ appendix is an integral part of a Standard.
SECTION 1   SCOPE AND GENERAL
1.1     SCOPE
This Standard specifies operational procedures for laser-based devices which are used to measure the speed of targets for law enforcement or scientific measurement using the lidar principle. This Standard includes devices linked to an image capture system.
1.2     OBJECTIVE
The objective of this Standard is to provide users of laser-based speed detection devices with requirements and recommendations covering the operation of these devices and the training of operators in order to ensure uniformity of practice.
SECTION 2: OPERATIONAL PROCEDURES
2.1     OPERATOR
For the purpose of law enforcement, the operator of the laser-based speed detection device shall be trained in accordance with Appendix A and authorized in the use of these devices to measure the speed of objects.
Records of persons authorized to use laser-based devices to measure the speed of objects shall be maintained.
The authorization of an operator shall lapse if the operator has not used a laser-based speed detection device for more than 12 months. Such an operator may be reauthorized following an adequate period of retraining.
NOTES:
1The authorizing body is the body with the responsibility for enforcing laws relating to target speed at the location where the laser-based device is to be used.
2Lidar measurements taken by persons other than authorized operators may not be considered to be valid unless such persons are under training and are being directly supervised by an authorized operator.
Operators using these devices for other purposes should seek similar training.
2.2     EQUIPMENT CERTIFICATION
2.2.1 Testing authority
Each testing authority shall be an organization or company recognized as being competent to carry out electronic testing in accordance with this Standard.
NOTE: Selection of a testing authority that holds National Association of Testing Authorities (NATA) accreditation and can provide assurance that testing equipment has current calibrations traceable to standards of physical measurement in accordance with the National Measurement Act is recommended.
2.2.2 Frequency of testing
The laser-based device shall not be used unless it has been tested and certified by a testing authority as meeting the requirements set out in Clause 2.2.3 and been sealed by the testing authority within the past 12 months.
2.2.3 Testing procedure
The testing procedure shall ascertain that—
(a)the optical output power of the device is within the specification provided by the manufacturer of the device;
(b)the device is correctly calibrated in accordance with the manufacturer’s instructions;
(c)speed measurements with an accuracy of +2, −3 km/h or +1, −2 km, as appropriate, are determinable using the simulator method in AS 4691.1; and
(d)range measurements with an accuracy of +0.3, −0.4 m or +1, −2 ft for both the short range and long range tests are determinable using either the simulator or physical method in AS 4691.1.
2.2.4 Sealing
The testing authority shall seal the laser-based device only if the device satisfied the testing carried out in Clause 2.2.3.
The seals shall be applied in such a manner as to effectively prevent interference with the speed computing circuitry of the device without breaking the seal. The testing authority shall keep records of all devices sealed, including—
(a)identification of each device;
(b)the date on which the tests were conducted; and
(c)the manner in which the device was sealed.
2.2.5 Certification
The testing authority shall issue a certificate only if the device has—
(a)satisfied the test requirements of Clause 2.2.3; and
(b)been sealed as prescribed in Clause 2.2.4.
2.3 OPERATIONAL CHECKS
Before the device is taken out to a measurement site, the following parameters shall be checked:
(a)     Physical check
The device shall be inspected and not used until any physical damage which may affect its operation has been assessed. All seals shall be intact and the certification shall be current.
(b)     Internal circuit
The operator shall monitor the device as it performs its internal circuit test (see AS 4691.1) and interpret the result in accordance with the manufacturer’s instructions.
(c)     Display
The operator shall conduct a display test and ensure all segments and features of the display are working before using the device.
(d)     Sight alignment
The operator shall perform a sight alignment check to verify the vertical and horizontal alignment of the sight with the laser.
NOTE: This may be achieved through use of—
(i)a special test feature, if one is fitted, which employs an audible tone which changes pitch when the aiming point of the sighting device is panned across a specific narrow target in both horizontal and vertical planes; or
(ii)changes between the audible tones specified in AS 4691.1 when the device is panned across a specific narrow target in both horizontal and vertical planes.
(e)     Range check
A range measurement taken to a suitable target over a known distance clear of obstructions shall be within the required accuracy as stated in AS 4691.1.
2.4     SITE SELECTION
2.4.1 General
When selecting a site for the use of a laser-based device in the stationary mode, the factors listed in Clauses 2.4.2 and 2.4.3 shall be taken into account.
2.4.2 Detection area
The operator shall take into account the detection area and the fact that the speed of any moving object within the detection area could be being measured at any given time.
NOTE: The detection area varies with different makes of laser-based devices.
2.4.3 Traffic density
The operator shall take into account the traffic density at the site at the time of measurement to ensure that targets can be clearly identified.
2.4.4 Alignment
For speed measurements, the operator should ensure that the beam of the laser-based device is as close as practical to being directly in line with the direction of travel of the target to minimize the cosine angle effect.
NOTE: The operator should be aware of the fact that, if the laser beam is not aligned with the direction of travel of the target, the speed measured by the device can be less than the true speed of the target. This is referred to as the ‘cosine angle effect’ because the measured speed is equal to the true speed multiplied by the cosine of the angle between the beam and the direction of travel of the target and hence cannot be higher than the true speed.
2.5     FIELD TESTING
2.5.1 General
The accuracy of the laser-based speed detection device shall be tested in accordance with the manufacturer’s instructions at the commencement and end of operation.
2.5.2 Required accuracy
When tested, the required speed accuracy as set out in Clause 2.2.3(c) or range accuracy as set out in Clause 2.2.3(d) shall be met.
If the accuracy of the device is not within the required accuracy, then—
(a)the device shall not be used until it has been rendered capable of producing the required accuracy, recertified and resealed in accordance with Clause 2.2; and
(b)all readings taken since the device was last tested in accordance with Clause 2.5.1 shall be deemed to be invalid.
APPENDIX A
OPERATOR TRAINING
(Normative)
A1     SCOPE
This Appendix specifies the elements to be included in the training program for laser-based speed detection device operators. It is recognized that the proper use of laser-based devices relies on the skill and training of the operator.
A2     THEORY
A2.1 General
The theory elements set out in Paragraphs A2.2 to A2.4 shall be included in the program, which shall be delivered by a qualified instructor.
NOTE: The qualified instructor should have both operational and instructional knowledge specific to laser-based speed detection devices.
A2.2 Laser (lidar) principles
The basic principles of laser-based speed detection shall be explained and their application to the device which the operator will be using shall be pointed out. This shall include the following points:
(a)    The principles of laser pulse emission and collection of the reflected energy as applicable to speed detection.
(b)    Effective range and width of the detection area.
(c)    Cosine angle effect.
(d)    Causes of interference.
(e)    Factors affecting target identification.
(f)     Differences between speed and distance modes.
(g)    Limitations of laser-based speed detection, eg sweep effect, panning.
(h)    Effects of relative size, shape, finish and distance of targets.
(i)   Laser safety.
(j)   Relevant legislation and Australian Standards.
A2.3 Set-up and field test procedures
The procedures to be followed when setting up the device and the method of testing the accuracy of the device shall be explained. The maximum allowable period between accuracy tests (see Clause 2.5.1) and the procedure to be followed if the device fails the test shall be set out.
A2.4 Site selection
The factors involved in the selection of a site at which to operate the laser-based device shall be explained (see Clause 2.4).
A3     PRACTICAL TRAINING
Practical training in the operation of laser-based devices shall be carried out at typical sites under the supervision of a qualified instructor.
A4     EXAMINATION
At the completion of the training program, candidates shall complete a written examination on the theory elements of laser-based speed detection device operation and satisfy an examiner by practical demonstration that they have achieved an acceptable level of proficiency in the use of laser-based speed detection equipment.
A5     ACCREDITATION
Accreditation shall only be granted to those candidates who achieve satisfactory results in both the written examination and practical assessment.
A6     REACCREDITATION
The accreditation of an operator shall lapse if the operator has not used a laser-based speed detection device for more than 12 months. Such an operator may be reaccredited following an adequate period of retraining.
A7     FURTHER TRAINING
When a new type of laser-based speed detection device is introduced into operation, each operator who will be using it shall be trained to use the new device.
APPENDIX B
[Omitted – not presently relevant.]

Five step test plus calibration check procedure	A procedure used by SAPOL in purported compliance with the statutory test
RTA	Road Traffic Act 1961
SAPOL	South Australian Police
TSA	Traffic speed analyser
TSA unit	The particular traffic speed analyser unit used (as distinct from a TSA make and model)
The permissible certifiable fact	The certifiable fact referred to in s RTA s 175(3)(ba) “that the TSA was shown by the statutory test to be accurate to a particular indicated extent.”
The statutory test	“The test” referred to in s RTA s 175(3)(ba) that a specified traffic speed analyser had been tested on a specified day and was shown by “the test” to be accurate to a particular extent.