Police v Hanton

Case [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…

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Police v Hanton [2018] SASC 96
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[2018] SASC 96
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CaseChat Overview and Summary

In Police v Hanton, the appellant was convicted of driving offenses and appealed the decision. The central issue before the court was whether the statutory test required by the Road Traffic Act (RTA) s 175(3)(ba) was properly administered to demonstrate the accuracy of the Traffic Signal Analyser (TSA). The court had to determine if the statutory test was correctly performed and whether the prosecution's presumption was applicable. The court found that the statutory test was not properly conducted, as it failed to show the TSA's accuracy to the specified extent indicated in the certificate. This finding meant that the prosecution could not rely on the statutory presumption, and the evidence presented was insufficient to support the charges.

The court's reasoning was based on the statutory requirement for a transparent and proximate test to demonstrate the TSA's accuracy. The internal procedures of the South Australian Police (SAPOL) could not substitute for the statutory test. The court emphasized that the statutory test must be conducted near the time of the driving incident and must clearly show the TSA's accuracy to the extent specified. The calibration check, although permissible, could not replace the statutory test. The court also noted that the prosecution's tactical decisions, such as not calling certain expert witnesses, were relevant to the determination of the appropriate remedy.

In conclusion, the court found that the statutory test was not correctly administered, and thus, the prosecution's presumption did not apply. Given the tactical decisions made by the prosecution, the court determined that a re-trial would not be appropriate. Instead, the complaint should be dismissed with no order for a re-trial. The critical takeaway was that the statutory test must be independently verifiable and distinct from any internal procedures or additional tests conducted by SAPOL.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J
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.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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.