Police v Henderson
[2018] SASC 98
•19 July 2018
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 175(3)(ba), referred to.
Police v Hanton [2018] SASC 96, applied.
Police v Miller [2018] SASC 97; Police v Butcher (No 2) [2016] SASC 130, discussed.
Taylor v Hayes (1990) 53 SASR 282, considered.
POLICE v HENDERSON
[2018] SASC 98Magistrates Appeal: Criminal
PEEK J. Appeal against findings of speeding.
INTRODUCTION
The appellant was charged on complaint with driving a motor vehicle at a speed over the applicable speed limit. The charges appears thus:
1. On the 19TH day of FEBRUARY, 2016 at MURRAY BRIDGE in the said State drove a vehicle namely a MOTOR VEHICLE REGISTRATION NUMBER XSE-557 on a length of road namely SWANPORT ROAD, to which a speed limit sign applied to you pursuant to rule 21(1) of the Australian Road Rules, over the speed limit of 50 kilometres per hour as indicated on the speed limit sign which was on the said road. Rule 20 of the Australian Road Rules.
It is further alleged you were driving at a speed of about 76 kilometres per hour.
This is a summary offence.
2. On the 19TH day of FEBRUARY, 2016 at MURRAY BRIDGE in the said State being the holder of a provisional licence contravened a condition of the licence by driving a motor vehicle registration number XSE557 on a road namely SWANPORT ROAD at a speed exceeding by 10 kilometres an hour or more a speed limit that applied under the Road Traffic Act, 1961 or the Motor Vehicles Act 1959.
Section 81A(9) of the Motor Vehicles Act 1959.
It is further alleged that the speed of the said motor vehicle was about 76 kilometres per hour.
This is a summary offence.
The complaint was laid on 24 May 2016 but the trial did not commence until 28 February 2017; the trial was completed that day and judgment was reserved. On 28 April 2017, the Magistrate delivered judgment and found the charges proven. His Honour later dealt with penalty as to which there is no appeal.
The appellant’s ground of appeal
The appellant’s sole ground of appeal was that: “The verdict is unsatisfactory and not supported by the evidence”.
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)) which 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;
Three sets of reasons are being concurrently delivered
These reasons (Henderson) should be read in conjunction with two other sets of reasons (being concurrently delivered) which deal with the same point: Police v Hanton[1] (Hanton) and Police v Miller[2] (Miller), which are appeals that came before me in the Magistrate appeals session in May 2018.
[1] [2018] SASC 96.
[2] [2018] SASC 97.
Henderson, on the other hand, is an earlier appeal that came before me in the July 2017 Magistrates appeals session. The appellant filed a full written submission and, in response, the respondent filed a written submission (the respondent’s first written submission) which conceded the appeal on the basis that the case was on all fours with the decision of Stanley J in Police v Butcher (No 2)[3] (Butcher (No 2)). The above two written submissions satisfied me that the ground of appeal was made out and I was therefore prepared to accede to the joint request to allow the appeal as a conceded appeal which would normally mean that a published judgment would not be required.
[3] [2016] SASC 130.
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.
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 trial 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 Miller and Hanton came before me in May 2018. They disclosed the following matters.
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 RTA s 175(3)(ba) certificate and the only witness called by the prosecution was the constable who used the traffic speed analyser (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 RTA 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.[4]
[4] As noted above, in Hanton the defence tendered a number of documents. 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. These reasons should be read in conjunction with the two other sets of reasons in Hanton and Miller (being concurrently delivered with Henderson). To avoid undue repetition and (hopefully) for the sake of clarity, the major historical and conceptual analyses are dealt with in Hanton. To the extent necessary, these matters are incorporated by reference here and in Miller.
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.
PARTS 1 TO 5 OF THIS JUDGMENT
The following portions of the judgment in Hanton are wholly incorporated by reference herein:
PART 1: THE STRICT BOUNDARIES OF RTA S 175(3)(ba)
PART 2: THE IMPORTANCE OF THE “STATUTORY TEST”
PART 3: THE SENIOR POLICE OFFICER’S TASK
PART 4: THE NATURE OF THE DEFENDANT’S ONUS OF PROOF
PART 5: S 175(3)(ba) DOES NOT APPLY TO SKILL IN MEASURING SPEED
PART 6: THE TRIAL OF MR HENDERSON
The trial commenced on 28 February 2017. The prosecutor was assistant police prosecutor Smith (APP Smith) and the appellant was represented by Ms Stanley, his solicitor. At the outset, the prosecutor tendered its only exhibit, exhibit P1: a certificate furnished by superintendent Blandford (Blandford) dated 1 November 2016:
TO BE COMPLETED BY A SENIOR OFFICER (OF OR ABOVE THE RANK OF INSPECTOR) I, [JAMES ADRIAN BLANDFORD]
(Officer of Police Full Name)
certify that:
Ultralyte 100 LR Laser Gun serial number: UXO26938
(LIDAR Device) (LIDAR Serial Number)
was tested on 19/02/2016 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]______ ____[Supt]___ __[25298]__ on _[1/11/16]__
(Signature of Officer of Police) (Rank) (ID) (Date)The evidence of senior constable first class Patching
The only witness called by the prosecution was senior constable first class Patching (Patching). He was an experienced officer and stated:
QSenior Constable Patching can you tell me how many years have you got as a police officer?
A20.
QAnd what is your current role?
ACurrently attached to the Murray Mallee Highway patrol at Murray Bridge police station.
QHow long have you been working in highway patrol?
ASince 2010.
Patching’s evidence-in-chief concerning the five step test plus calibration check procedure was as follows:
QNow this particular Lidar that you were using on that day, did you conduct any tests in relation to it?
AYou do. It is calibrated scientifically once a year.
OBJECTION: MS STANLEY OBJECTS
HIS HONOUR: Sorry what was the question?
XN
QWhat tests do you perform?
AWe do a range test at the commencement and at the end of the shift.
HIS HONOUR
QJust so I want to get this clear – it is a range test – at the beginning of the shift?
ABeginning and the end of the shift yes.
XN
QDid you conduct any other tests in relation to this Lidar?
AWell prior to those tests you run through a series of things that we do. You make sure there is no damage, the actual unit was within calibration of the other date that I was previously mentioning. The calibration seals, the two of them, they are still intact and if not it is void and you send it back and it does a self-test, you turn it on and it comes up with a pass or a fail and then you do a zero velocity test which is scientifically marked distance at the police station and a scope alignment test to make sure that the scope and the laser are in alignment with each other.
Patching later in effect repeated his evidence thus:
QCan you just confirm all the tests you have done as per the document there?
AWe do a visual test. Once again that relates to whether it is in calibration, whether there is any damage, whether the seals are in tact. You do a self-test, you turn it on. It does a self-test, it tells you pass or fail. You do a display test, it tells you the same thing and then you do a zero alignment test to make sure that the view finder, for want of a better word, and the actual Lidar are in alignment and then you do a fix distance zero velocity test and that measures that distance that is up there at the back of the police station.
QAnd you have mentioned pass or fail, in relation to all those tests you have mentioned what were the results?
APass.
He also gave the further evidence:
QHow do you know they were performing correctly? Is there anything to indicate on there?
AWell it tells you pass or fail. The scope alignment test and the fix distance zero velocity test aren’t passes and fails on the display. The scope alignment test is an audible tone and the fixed distance zero velocity test is obviously the measured distance of point marked on the ground to the nominated distance point.
QAnd in relation to the afternoon testing did they all pass or fail?
AThey all passed.
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:
XXN
QYou 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 HONOUR
QSo what is that – a fixed?
AFixed zero velocity test – it is a measure of distance.
XXN
QDid 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 OBJECTS
APP 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 OVERRULED
MS STANLEY: I am just asking the witness what the test results show. I am not asking for the scientific background behind it.
XXN
QGiven 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.
XXN
QWell 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 OBJECTS
APP 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
The prosecutor emphasised that Patching’s training did not extend beyond the regular use of the TSA in speed detection and the conducting of the five step test plus calibration check procedure. Patching in no way claimed to be qualified to give expert evidence concerning the science based principles upon which the TSA relied.
Patching stated (in the cross-examination reproduced above) that the TSA “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.”
While Patching appeared to believe that the TSA had some form of limit of error of “plus two minus three”, that is no more than a stated belief that the TSA is designed to have that limit of error; and such knowledge would be readily gleaned from seeing a limit of error being referred to in a manual or a calibration certificate. Of course, he was correct in thinking that in measuring a distance of 20 metres correctly the TSA appeared to be within that limit of error but there was a complete dearth of evidence as to how an ability to carry out that exercise could lead to a valid estimate of its limit of error when measuring the speed of a motor vehicle as at the time of the performance of the required statutory test. Patching did not claim to understand (indeed he eschewed any knowledge as to) how it was that an accurate zero fixed velocity test could be claimed to show anything more than that the TSA could accurately measure a distance of 20 metres leading up to a stationery object.
The evidence of superintendent Blandford
During examination-in-chief, Blandford gave the following evidence:
QCan you point to where in the field test results it shows that the device was accurate within a limit of error not exceeding plus two or minus three kilometres per hour?
AIt is not in the field test.
QWhere is it?
AIt is in the calibration certificate.
QCan I get you to have a look at the calibration certificate, D1, what date does that show testing as being done?
AThe date of the test was 12 March 2015.
QAnd do you know what the date of the tests conducted by Senior Constable Patching were?
AAccording to page 2 of the certificate of accuracy of the traffic speed analyser was 19 February 2016.
QDo you remember what date that Mr Henderson is alleged to have exceeded the speed limit on?
AIt is my understanding it was 19 February 2016 which is verified by the expiation notice.
QSo do you agree that the calibration report doesn’t refer to testing that was done on the date of the alleged offence?
AThe calibration certificate is a 12 month certificate and the calibration was done within 12 months of the offence date.
QCan you just repeat – you said the calibration certificate is a 12 month certificate?
A12 month certificate and the offence date occurred within that 12 month period.
QSo when you certified that the speed gun was accurate within a limit of error not exceeding plus two or minus three kilometres an hour, do you agree that your evidence is that you relied on the information contained in the calibration report?
AOf course.
….
QDo you agree that the testing of the device for the purposes of the calibration report was not done on the day of the testing by Senior Constable Patching?
OBJECTION: APP SMITH OBJECTS
DISCUSSION
OBJECTION OVERRULED
AI rely on the calibration certificate which is a 12 month certificate which demonstrates or which purports or which verifies the ultralyte laser was accurate on the day of the testing in March 2015 and that certificate carries through for a 12 month period. I was also shown a field test book that demonstrated that the officer, at the beginning of the shift and at the end of the shift, had gone through a testing regime to make sure that the laser was operating correctly and I also was shown the expiation notice and all three documents showed the same serial number for the same laser that was calibrated and given a certificate of calibration and was accurate at the time and as such I was satisfied with the evidence presented to me that that laser was operating correctly, was operating correctly and I signed the certificate as per 175 of the Road Traffic Act.
QYou signed that certificate on the basis that it was operating correctly?
AI signed that certificate that the evidence provided to me demonstrated that the laser was calibrated, that it had been field tested and there was evidence presented to me that it was accurate and hence the certificate was signed.
(Emphasis added)
The defence case
The defence tendered a calibration report for the subject TSA dated 12 March 2015. The defendant did not give evidence.
PART 7: THE MAGISTRATE’S REASONS AND THE APPEAL
I turn to consider the Magistrate’s reasons and the resolution of the appeal.
The Magistrate’s analysis of the evidence of superintendent Blandford
The Magistrate stated:
26. Supt. Blandford completed the checklist as to all required tests having been carried out. He was entitled to sign Exhibit P1 based on information provided to him.
27. As Her Honour Justice Kelly states in Police v Wyatt [2016] SASC 17 at paragraph 15, “It is clear that the presumption on s. 175(3)(ba) is not displaced simply by raising a question as to whether the tests performed were capable of showing the accuracy of the speed gun. It must be positively proven on the balance of probabilities that the test did not show the speed gun to be accurate.”
28. The presumption is not displaced in this case by answers given by the police witnesses to technical questions outside their knowledge. There was no requirement, for example, for Snr. Constable Patching to perform actual tests on the speed device as to whether it was within an accuracy of +2 or -3 km/h. Testing performed by him is stated in Exhibit D4.
29. Exhibit D1 specifies accuracy of the device consistent with the relevant specifications described therein.
30. Supt. Blandford was clear and concise in explaining his responsibilities and duties in signing Exhibit P1. He stated:
I rely on the calibration certificate which is a 12 month certificate which demonstrates or which purports or which verifies the Ultralyte laser was accurate on the day of the testing in March 2015 and that certificate carries through for a 12 month period. I was also shown a field test book that demonstrated that the officer, at the beginning of the shift and at the end of the shift, had gone through a testing regime to make sure that the laser was operating correctly and I also was shown the expiation notice and all three documents showed the same serial number for the same laser that was calibrated and given a certificate of calibration and was accurate at the time and as such I was satisfied with the evidence presented to me that that laser was operating correctly, was operating correctly and I signed the certificate as per 175 of the Road Traffic Act.
31. Justice Kelly also states in Police v Wyatt at paragraph 23 that, “A certificate under s. 175(3)(ba) of the RTA might be inadmissible or excluded if it is bad on its face, or if there is some other basis for excluding it in the exercise of a discretion.”
32. There is no basis established for me to exclude it.
33. The Superintendent was entitled to sign the Certificate based on information before him.
Submissions by the parties
As noted above, the appellant filed a full summary of argument. In response, the respondent filed the respondent’s first written submission which conceded the appeal on the basis that the case was on all fours with the decision of Stanley J in Butcher (No 2).[5]It was (in full) as follows:
1.The Appellant’s summary of argument accurately sets out the charges, the trial and the verdict.
2.The issue arising on this appeal is whether the Appellant established “proof to the contrary” of the facts certified in exhibit P1 (the Certificate of Accuracy of Traffic Speed Analyser – Lidar Device) for the purposes of Road Traffic Act 1961 s175(3)(ba).
3.The Appellant led evidence about the production of exhibit P1, which is the same as the agreed facts (numbered 4, 5 and 6) in Police v Butcher [2016] SASC 130 at [6].
4.Accordingly, on the basis of Butcher, the Appellant provided “proof to the contrary” of the facts certified in exhibit P1.
5.For these reasons, the Respondent concedes the single ground of the Notice of Appeal filed on 17 May 2017.
[5] [2016] SASC 130.
Following the hearing on 20 July 2017 (when I granted leave to the respondent to forward further written submissions if so advised), the respondent shortly thereafter filed a second written submission (the second written submission) which relevantly was as follows:
1. These submissions are directed to the question of whether any reasons for orders made on 20 July 2017 ought to deal with a general question (not arising on this appeal): whether the Lidar testing used by SAPOL in this matter is ever capable of supporting a certificate under s175(3)(ba) of the Road Traffic Act 1961 (RTA).
This appeal
2.The issue arising on this appeal was whether the Appellant established “proof to the contrary” of the facts certified in exhibit P1 (the Certificate of Accuracy of Traffic Speed Analyser – Lidar Device) for the purposes of RTA s175(3)(ba).
3.By summary of argument dated 17 July 2017, the Respondent conceded the single ground of the Notice of Appeal filed on 17 May 2017.
4.On 20 July 2017, this Honourable Court made orders by consent allowing the appeal, setting aside the findings of guilt and convictions and awarding costs fixed at the agreed amount.
The evidence
5. The Magistrate in this matter received the following evidence:
(1) SC Patching tested the Lidar on the morning of 19 February 2016 by undertaking a visual test, a self-test, a display test, a zero alignment test, and a fixed distance zero velocity test: Tx 6 L7, L29-38 and Tx 7 L1-3.
(2) The zero fixed velocity test did not show a result in terms of kilometres per hour: Tx 15 L13-15.
(3) Exhibit P1 – a PD477 certificate, certifying that the Ultralyte 100 LR Laser Speed Gun serial number UX026938 was tested on 19/02/2016 and was shown by the test to be accurate to within a 3 limit of error not exceeding plus 2 or minus 3 kilometres an hour.
(4) Exhibit D1 – Calibration Report Certificate number J25090 dated 12 March 2015.
(5) The field test results did not show that the device was accurate within a limit of error not exceeding plus two or minus three kilometres an hour: Tx 23L19-L23.
(6) The accuracy of the device within a limit of error not exceeding plus two or minus 3 kilometres an hour was contained in the calibration certificate: Tx 23 L19-25.
(7) If Superintendent Blandford did not have a copy of the calibration report he would not have signed the certificate of accuracy: Tx 24 L24-L29.
6.On the basis of that uncontradicted evidence, the certificate in this matter suffered the vice described in Police v Young (2012) 114 SASR 509 at [30]:
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.
7. The case is factually similar to Police v Butcher [2016] SASC 130.
8.In this case the averment in exhibit P1 regarding the extent of the accuracy was not sourced from the testing undertaken by SC Patching. Accordingly, the defendant provided “proof to the contrary” of the facts certified in exhibit P1 and the Court could not be satisfied beyond reasonable doubt that the defendant had committed the offences charged.
9.The evidence adduced on the topic of the field tests undertaken in this matter was deficient. The evidence regarding the field tests’ capacity to accurately test the device’s speed detection capabilities (including the facts identified in paragraphs 5(2) and (5) above) is capable of further explanation which was not led in the trial.
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.
Fifthly, if the defendant wishes to contest the permissible certified fact, his or her onus is to prove the converse of the permissible certified fact; in other words, that on the whole of the evidence before the Court (tendered by both the prosecution and the 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.
It was for the above reasons (considered in greater depth in Hanton) that I made the orders herein on 20 July 2017.
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