Police v Henderson - [2018] SASC 98

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v HENDERSON
[2018] SASC 98
Reasons for Decision of The Honourable Justice Peek
19 July 2018
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - PRESUMPTIONS - AS TO SCIENTIFIC INSTRUMENTS
EVIDENCE - PROOF - FACILITATING PROOF - MATTERS RELATING TO MACHINES, PROCESSES AND OTHER DEVICES
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
The appellant was charged with driving a motor vehicle over the applicable speed limit contrary to rule 20 of the Australian Road Rules, and contravening a condition of his provisional licence contrary to s 81A(9) of the Motor Vehicles Act 1959.
At trial, the prosecution called senior constable Patching who completed a “five step test” of the speed traffic analyser (TSA) on the day of the alleged speeding and furnished the results, together with a “calibration check”, to superintendent Blandford. The prosecution tendered a “certificate” pursuant to RTA s 175(3)(ba), in which superintendent Blandford purported to certify that the TSA was “tested on 19/02/2016 and was shown by the test to be accurate within a limit of error not exceeding plus 2 or minus 3 kilometres per hour”. Superintendent Blandford attended on subpoena and was called by the defence. He gave evidence that the limit of error of “plus 2 or minus 3 kilometres” specified in the certificate arose from the calibration check. The defendant tendered a calibration report for the subject TSA dated 12 March 2015.
The Magistrate found both charges proven.
On 20 July 2017, orders were made by consent of the respondent allowing the appeal and dismissing the complaint, with the Court to supply reasons later if thought appropriate.
Held per Peek J:
(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, on all of the evidence before the Court, that 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, on all of the evidence before the Court, that the “five step test” performed by the constable (together with a “calibration check”) failed to show that the TSA was then accurate 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.
Road Traffic Act 1961 (SA) s…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Police v Henderson

Details

AGLC: Police v Henderson [2018] SASC 98
Case: [2018] SASC 98
Decision Date: 19 July 2018

CaseChat Overview and Summary

In the case of Police v Henderson, the defendant, Henderson, was charged with speeding offences under the Road Traffic Act 1990 (SA). The primary dispute centred on the accuracy of the speed detection device used by the police, a Traffic Speed Analyser (TSA). The matter was heard in the Magistrates Court of South Australia, where Henderson argued that the TSA used to measure his speed was not sufficiently accurate as required by the statutory provisions.

The legal issues before the court included the interpretation of Road Traffic Act 1990 (SA) section 175(3)(ba), which sets out the requirements for the accuracy of TSA devices, and the burden of proof regarding the accuracy of such devices. Specifically, the court had to determine whether the statutory test for accuracy was properly conducted and if the certificate of accuracy was correctly issued. Additionally, the court needed to consider the weight and sufficiency of the evidence presented by both parties, particularly in relation to the technical aspects of the TSA device.

The court found that the defendant had successfully discharged his burden of proof under section 175(3)(ba) by demonstrating that the TSA device was not accurate within the prescribed limits. The court noted that the magistrate had erred in his analysis of the statutory requirements, failing to appreciate the strict adherence needed to the statutory test provisions. The court highlighted the distinction between external testing, which involves a reliable external standard, and internal testing, which relies on the device itself for accuracy verification. The court concluded that the TSA device's accuracy had not been properly verified through the statutory test, leading to the conclusion that the certificate of accuracy was invalid.

As a result, the court quashed the convictions against Henderson on the grounds that the evidence regarding the accuracy of the TSA device was insufficient to meet the statutory requirements. The court's decision underscores the importance of strict compliance with statutory testing procedures and the need for clear and accurate certification of TSA devices.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In cross-examination it became clear that the prosecution took the firm position that although Patching had been a police officer for some 20 years, and had been working in highway patrol for the last eight years, he should not be asked technical questions about the lidar unit. Thus APP Smith submitted to the Magistrate when objecting to a defence question in cross-examination: “The officer can only give evidence of the test he does, he can’t go behind the parameters of what his testing is.” The context of that submission is the following passage in cross-examination: XXNQYou mentioned earlier that you conducted a range of tests at the beginning and end of your shift, what tests did you perform on that day that showed a result in terms of kilometres per hour?AThe zero fixed velocity test.HIS HONOURQSo what is that – a fixed?AFixed zero velocity test – it is a measure of distance. XXNQDid that test show a result in terms of kilometres per hour?ANo.QIf there were no results shown in terms of kilometres per hour is it fair that that reading didn’t show that the device was accurate within a limited error not exceeding plus two or minus three kilometres per hour?OBJECTION: APP SMITH OBJECTSAPP SMITH: That is a technical question about the Lidar. The officer can only give evidence of the test he does, he can’t go behind the parameters of what his testing is.HIS HONOUR: I imagine the officer may say I can’t answer that question because I don’t have the technical experience. I understand these questions will form the basis of some legal argument later on is that where we are heading.MS STANLEY: That’s correct, yes.OBJECTION OVERRULEDMS STANLEY: I am just asking the witness what the test results show. I am not asking for the scientific background behind it.XXNQGiven that you have said that none of the tests you did show results in terms of kilometres is it fair to say then that there were no test results that showed any of the readings were accurate within a limit of error not exceeding plus two or minus three kilometres per hour?HIS HONOUR: If you can’t answer the question please just tell us.AWell I can answer it – the answer is yes there was indication that the device was accurately operating on that day.XXNQWell that is not the question I have asked. Did any of the results of the test you conducted at the beginning and end of the shift show that the device was accurate within plus two or minus three kilometres per hour?AYes it did.QWhich test was that?AThe zero fixed velocity test.QAnd what reading did that give?AIt gave, it is over a measured distance which is 20 metres, so it is obviously given me the 20 metre distance displayed on the Lidar device and there was no speed displayed in the actual speed screen on the device which means it was within the plus two minus three.QIf there was no speed displayed don’t you agree that it is not possible that the device could have shown that it had a margin of error within plus two minus three kilometres per hour?OBJECTION: APP SMITH OBJECTSAPP SMITH: These are technical questions.HIS HONOUR: Can he answer that?AI can’t answer those questions I am sorry Your Honour.…A … I am only trained to operate Your Honour within the guidelines we are given.…QCan I ask that the witness be shown another document? I have just shown you a copy of the Australian Standard for Laser based speed detection devices. Can I ask you to turn to page 13. On page 13 – 15 if I can get you to look at pages 13 to 15, have you ever seen those pages before?ANo.QSo do you agree that you have never received training in relation to the testing to be performed in that document?ANot the scientific testing of it no. Consideration of Patching’s evidence

Decision

Reasons for decision

PEEK J

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Ratio Decidendi

Legal Principle Established

Established by: PEEK J

Counsel then proceeded to make some further more general submissions which are not presently in point.Consideration I consider that the defendant discharged his onus of proof under RTA s 175(3)(ba) and the respondent conceded that this is so. The respondent’s first written submission specifically states that the defendant had discharged his onus and, at paragraphs [3] and [4], equates the situation to that in Butcher (No 2). I agree. I also consider that that situation also equates to the situation in both Hanton and Miller. I understand it to be conceded in the respondent’s second written submission that the defects identified (correctly) at paragraphs [8] and [9] by themselves lead to the conclusion that the defendant discharged his onus of proof. Again, I agree and also consider that that conclusion applies equally to the situation in both Hanton and Miller. As to paragraphs [5] and [6], I again agree with the stated consequence in paragraph [6] and also consider that there is no valid distinction between the evidential matrix in Henderson and those in Hanton and Miller when one has regard to the correct construction of RTA s 175(3)(ba).The correct construction of RTA s 175(3)(ba). I consider that the Magistrate in Henderson seriously erred in his approach to, and analysis of, RTA s 175(3)(ba). His Honour failed to direct himself, or to appreciate, the following matters. First, 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”. Secondly, 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 is “the statutory test”. Thirdly, 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. Fourthly, there is a significant distinction between external testing[6] and internal testing[7] 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. [6] External testing occurs when one tests the accuracy of a device by reference to an external standard that can be seen to be trustworthy.[7] 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.