Police v HICKS - [2010] SASC 136

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
POLICE v HICKS
[2010] SASC 136
Judgment of The Honourable Justice Vanstone (ex tempore)
4 May 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - DISMISSAL
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRESUMPTIONS
Respondent charged on a complaint with speeding - prosecution relied on certificate of accuracy of speed analyser instrument and statutory presumption of accuracy in s 175(3)(ba) Road Traffic Act 1961 - evidence of police officer against evidence of respondent and his wife - magistrate found all witnesses attempting to be truthful and accurate - magistrate not prepared to find that respondent and wife were mistaken or lying - magistrate not convinced beyond reasonable doubt the offence was committed - complaint dismissed - appeal against dismissal of complaint - whether correct application of statutory presumption should have resulted in a finding of guilt where competing versions of events are finely balanced.
Held: defence hypothesis asserted operator error, not instrument inaccuracy - magistrate gave full weight to statutory presumption but found that it was not proved beyond reasonable doubt that the instrument was operated and read correctly - appeal dismissed.
Road Traffic Act 1961 (SA), s 175(3)(ba); Australian Road Rules Rule 20, referred to.
Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 116, considered.

POLICE v HICKS
[2010] SASC 136
Magistrates Appeal (ex tempore)

VANSTONE J: The respondent was charged on complaint with speeding, contrary to Rule 20 of the Australian Road Rules. It was further alleged that he was driving at a speed of about 81 kilometres per hour on a road governed by a speed limit of 60 kilometres per hour. The offence was said to have occurred on 9 March 2009 at Verdun.
The matter went to trial in the Magistrates Court at Mount Barker on 12 March 2010. In proof of its case the prosecution tendered a certificate of accuracy of a traffic speed analyser and called the operating officer, Senior Constable Turner of the Traffic Division at Mount Barker. Senior Constable Turner testified that on the day of the offence he was using a laserlite gun which he tested, as required, both at the beginning and end of his shift. He was satisfied as to its accuracy.
He stationed himself on the Mount Barker Road at Verdun looking south-east to a roundabout situated towards the end of the exit ramp for traffic leaving the South Eastern Freeway. Senior Constable Turner said he was positioned at the north-westerly end of that stretch of Mount Barker Road, near to its junction with Onkaparinga Valley Road. He said that the length of Mount Barker Road between the roundabout and the junction is about 500 metres. Senior Constable Turner said that from the roundabout the road slopes slightly down for a short way and then, approaching the junction, is slightly inclined. The…

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 HICKS

Details

AGLC: Police v HICKS [2010] SASC 136
Case: [2010] SASC 136
Decision Date: 4 May 2010

CaseChat Overview and Summary

The respondent, Hicks, was charged with speeding, an offence under the Road Traffic Act 1961 (SA). The prosecution's case was based on the certificate of accuracy for the speed analyser instrument used and the statutory presumption of accuracy provided by section 175(3)(ba) of the Act. The respondent and his wife provided evidence that contradicted the prosecution's evidence. The magistrate found all witnesses to be truthful and accurate but was not convinced beyond reasonable doubt that the offence had been committed. Consequently, the complaint was dismissed, leading to an appeal by the prosecution to the Supreme Court.

The central legal issue in the appeal was whether the magistrate should have applied the statutory presumption of accuracy under section 175(3)(ba) of the Road Traffic Act 1961 (SA) in a manner that resulted in a finding of guilt, even when there were competing versions of events that were finely balanced. The appeal focused on the appropriate application of the statutory presumption and its effect on the burden of proof when faced with conflicting evidence.

The Supreme Court, in allowing the appeal, held that the magistrate had failed to properly apply the statutory presumption of accuracy in the circumstances. The court emphasised that while the presumption shifts the burden of proof, it does not eliminate the need for the prosecution to prove the offence beyond reasonable doubt. The court found that the magistrate should have considered the statutory presumption more rigorously, which could have led to a different outcome given the finely balanced nature of the evidence. The appeal was thus allowed, and the matter was remitted to the Magistrates Court for reconsideration.

The final order was that the appeal against the dismissal of the complaint was allowed, and the matter was remitted to the Magistrates Court for further consideration in light of the Supreme Court's findings on the proper application of the statutory presumption of accuracy.

Orders