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)

1. 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.

2. 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.

3. 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 witness said that at the time he took the reading of 81 kilometres per hour in relation to the respondent’s vehicle, that vehicle was 229.9 metres from his position.

4. The prosecution relied on the certificate I mentioned, together with the presumption provided by s 175(3)(ba) Road Traffic Act 1961, to the effect that the traffic speed analyser was accurate.  It was not suggested the certificate was not admissible.  The presumption has the effect that the instrument is presumed to be accurate in the absence of proof to the contrary.  I set out the provision.

   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;

5. The respondent gave evidence in his defence and called his wife;  she was a passenger in the vehicle at the relevant time.  Both gave evidence that the vehicle was not travelling as fast as 81 kilometres per hour at that time.  The respondent himself said that shortly after leaving the roundabout he saw Senior Constable Turner and saw his flashing lights go on.  He immediately looked down at his speedometer and saw that he was travelling at 50 kilometres per hour.  He allowed the car to roll down the incline and then continued on.  He said that although he saw the police officer activate his lights and move from his position in his vehicle, it was not until the officer flagged him down that he realised that the officer was interested in his vehicle, as opposed to another one he had noticed in the vicinity.

6. The magistrate accepted that all three witnesses were attempting to give truthful and accurate evidence.  In respect of Senior Constable Turner and the prosecution case, he made this observation at [9]:

   The prosecution case in this matter is strong, there is nothing from the evidence that I have heard from Senior Constable First Class Turner to indicate that he is in any way anything other than convinced that his use of the laser gun was in accordance with the requirements of that item and that his reading of the speed on the detection device was accurate. As he said, he showed that reading to the defendant.

   No finding went any further than this one in terms of accepting that the device was operated and read correctly.  The magistrate noted the difficulty confronting the defendant in overcoming the statutory presumption.  However, he observed that the defendant was just as adamant in his evidence and his wife’s evidence gave him some support.  The magistrate referred to the fact that the disparity in the recorded speed, compared with the speed attested to by the respondent and his wife, was great.  That being so, it would be hard for the respondent and his wife to be mistaken.  The magistrate was not prepared to find that they were mistaken or lying.  He went on to say that he was not in a position to know whether the explanation for the differing evidence could be a mistake made by one or more of the witnesses, or an error related to the use of the device.  He was not convinced beyond reasonable doubt that the offence was committed.

7. The appellant argues that the magistrate’s reasoning indicates an error of approach.  It is asserted that in circumstances where the competing versions were finely balanced, a correct application of the statutory presumption should have resulted in a finding of guilt.

8. In my view, the appellant’s position is not strictly correct.  The onus was on the defendant to prove on the balance of probabilities the contrary of what the certificate asserted if he so chose:  Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 116. However, the defence did not attempt specifically to quarrel with the accuracy of the device. Rather the defence hypothesis was that there was some sort of operator error, possibly due to the presence of a white motor car in the near vicinity, attested to by the respondent and his wife.

9. As I read the magistrate’s ex tempore reasons, while giving full weight to the statutory presumption, he was yet not satisfied that the prosecution had proved that the device was operated and read correctly and that the reading achieved related to the speed of the respondent’s vehicle.  He made no finding to that effect. On that reading, the magistrate was correct to dismiss the charge.

10. Therefore, my order is that the appeal is dismissed.