Police v Jordan (No 2) - [2018] SASC 52

SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal: Criminal)
POLICE v JORDAN (No 2)
[2018] SASC 52
Judgment of The Honourable Justice Lovell
30 April 2018
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - STATUTORY PROVISIONS AS TO PRIMA FACIE EVIDENCE - AS TO AVERMENTS AND ALLEGATIONS
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN BREACH OF SPECIFIC SPEED LIMITS
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - GENERAL MATTERS - NATURE AND SCOPE OF COMMONWEALTH POWERS - SEPARATION OF POWERS
Appeal against conviction and sentence – appellant convicted in the Magistrates Court of two offences; exceeding the speed limit by less than 10 kilometres per hr (km/hr) and exceeding the speed limit by between 10-19km/hr, pursuant to s 79B of the Road Traffic Act 1961. Whether reliance on the lawfulness of the averment provisions by the police prosecutor namely ss 175(1)(I) and sub-s 174A(2) of the Road Traffic Act 1961 breached the doctrine of separation of powers and Australia's obligations under the International Covenant on Civil and Political Rights (ICCPR). Whether court should consider questions of policy behind the regulation of speed limits. The appellant also sought a reduction in the number of demerit points imposed by the Magistrate.
Held:
1. The averment provisions relied upon are not bad at law and do not breach the separation of powers or the ICCPR.
2. The Magistrate did not err when sentencing the appellant.
3. Appeal dismissed.
Road Traffic Act 1961 (SA) Sections 79B, 174A and 175, referred to.
Jordan v Police [2006] SASC 205; Fox v Percy (2003) 214 CLR 118, applied.

POLICE v JORDAN (No 2)
[2018] SASC 52
LOVELL J:

Neville Jordan (the appellant) was convicted in the Magistrates Court of two speeding offences, namely: exceeding the speed limit by between 10-19 kilometres per hour (km/hr) and exceeding the speed limit by less than 10km/hr. The appellant appeals against both convictions and the appeals have been heard together. The appellant also appeals against the penalty imposed.
Background
The two offences occurred in almost identical factual circumstances. It was alleged that on 5 July 2016 a Toyota van which the appellant owned travelled along Stonehouse Avenue, Camden Park at a speed of 59km/hr. The speed limit for this portion of road is 50km/hr. 24 minutes later the appellant was detected driving along Stonehouse Avenue in the opposite direction in a Ford sedan at a speed of 61km/hr, again in a 50km/hr zone. Pursuant to s 79B of the Road Traffic Act 1961 the appellant was convicted for the first offence as the owner of the speeding vehicle and for the second offence as the driver.
The appellant was fined $50 for exceeding the speed limit by less than 10km/hr and a further $80 for exceeding the speed limit by between 10 and 19km/hr. The appellant also lost two demerit points for each offence. For the later offence the Magistrate exercised his discretion to reduce what would otherwise have been a loss of three demerit points.
General Principles
The appellant’s right of appeal against conviction arises pursuant to s 42 of the Magistrates Court Act 1991 and is by way of rehearing. It is not an appeal de novo and usually proceeds on the documents albeit with power to receive further evidence. The court hearing the appeal is required to conduct a real and independent review of the evidence put before the magistrate and come to its own conclusions.[1] The court however must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence given at trial. The court should always bear in mind that it did not hear or see the witnesses and it should not interfere with a magistrate’s findings of fact unless they are demonstrated to be wrong by “‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”.[2] As the plurality stated in Fox v Percy:[3]
[1]        Martin v Department of Transport, Energy and Infrastructure (2010) 269 LSJS; [2010] SASC 141, [38]-[39] (White J); Pol v City of Port Adelaide Enfield [2017] SASC 116, [15] (Nicholson J).
[2]    Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 687 (French CJ, Bell, Keane, Nettle and Gordon JJ).
[3]    Fox v Percy (2003) 214 CLR 118, 128 [29] (Gleeson CJ, Gummow and Kirby JJ).
In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
(Citations Omitted)
Appeal Grounds
The appellant filed a notice of appeal in relation to each conviction. The two offences were tried together. Before the Magistrate the arguments relating to conviction were generally the same. There is considerable overlap in the grounds of appeal and it is convenient to consider the appeals together. The common grounds can be summarised as follows, that:
1The Magistrates Court summonses for both offences were invalid;
2The speed limit of 50km/hr on Stonehouse Avenue is not justified;
3Sections 175(1)(i) and 174A(2) of the Road Traffic Act 1961 relied upon by the prosecution are bad at law because they offend the application of the separation of powers and the distribution of judicial power to the judiciary;
4The Magistrate should not have issued a fine due to the inaccuracy of the respondent’s speed cameras; that the existence of the same maximum penalties whether the offender is an owner or a driver infringes the principle of the separation of powers, the law of evidence and Australia’s obligations under the International Covenant on Civil and Political Rights; and the Magistrate should have exercised his discretion to not impose any demerit points; and
5Costs should not have been awarded to the prosecution due to inefficient communication, namely a failure by the police to inform the appellant, prior to the pre-trial conference, of the method of proof of the charges.
The further ground of appeal in relation to appeal SCCIV 1454 of 2017 was:
·Section 174A(2) of the Road Traffic Act 1961 is a flawed and invalid law and offends the doctrine of the separation of powers.
The further ground of appeal in relation to appeal SCCIV 1318 of 2017 was:
·Section 175 (i) of the Road Traffic Act is a flawed and invalid law and offends the doctrine of the separation of powers.
Ground 1
The appellant submits that the summonses he received from the respondent were invalid because neither of them contained an action number. The appellant conceded that he had not suffered any prejudice from a lack of an action number as he had attended a pre-trial conference for the matters.
An action number simply identifies the summons for administrative purposes. A failure to give a summons an action number cannot affect the validity of the summons. The appellant submitted himself to the jurisdiction in attending at the pre-trial conference and in conducting the trial. As the appellant conceded he suffered no prejudice in the failure to include an action number.
I dismiss this ground of appeal.
Ground 2
The appellant contended that Stonehouse Avenue should not have been made, as a matter of policy, a 50 km/hr zone. The appellant submitted that on a drive from Glen Osmond to Port Adelaide via Cross Road, the only part of the journey that is not a 60km/hr zone is Stonehouse Avenue (a little over one kilometre in length). He submitted that as the decision was “without justification” it attracted “judicial review”.
This appeal is not a judicial review hearing. Leaving that issue to one side, other than the appellant’s assertion of the policy being without justification no evidence was adduced at trial on the topic. The appellant submitted that he had given the prosecution, at trial, an opportunity to provide justification for the zone having a speed limit of 50km/h. He may have but there was no onus or duty on the prosecution to do so. They were required to present evidence to prove the elements of the offence: they did so. The appellant did not submit that the regulation was made without power. Nor was it suggested that the decision maker exceeded his or her jurisdiction or took into account extraneous factors. Nor did the appellant actually seek to review the decision; the criticism was of the policy.
Further, the appellant submitted that the failure to justify the position of why Stonehouse Avenue was a 50km/h zone meant that the fine imposed became an unlawful tax. As I have rejected the underlying premise of that argument I do not have to deal with it further.
There is no substance to this ground and I reject it.
Ground 3
At trial, in relation to both offences, the prosecution relied upon the averment provisions contained in ss 174A(2) (appeal SSCIV 454 of 2017) and 175(1)(i) (appeal SCCIV 1318 of 2017) of the Road Traffic Act 1961. These provisions allow an allegation in a complaint that a specific person was the driver (s 175(1)(i)) or owner (s 174A(2)) of a vehicle to be proof of that matter in the absence of proof to the contrary. The appellant contended that these provisions are bad at law in that it breaches the separation of powers by removing the judiciary’s power to be the finder of facts.
The respondent referred to Jordan v Police[4] where Layton J dismissed a similar argument raised by this appellant in an unrelated appeal. In Jordan the appellant argued that a similar averment provision in the Road Traffic Act 1961, relating to photographs showing red traffic light offences, was unlawful as it shifted the burden of proof onto the defendant and infringed on the separation of powers. Layton J said:[5]
[4] [2006] SASC 205.
[5] Jordan v Police [2006] SASC 205, [62]-[64].
It is well established that Parliament may legislate to prescribe rules of evidence or procedure, and to cast a burden of proof on a defendant in relation to an element of an offence, without in any way infringing upon Chapter III. In Nicholas v The Queen, Brennan CJ said that:
The practice and procedure of a court may be prescribed by the court in exercise of its implied power to do what is necessary for the exercise of its jurisdiction but subject to overriding legislative provision governing that practice or procedure … A law prescribing a rule of evidence does not impair the curial function of finding facts, applying the law or exercising any available discretion in making the judgment or order which is the end and purpose of the exercise of judicial power.
(footnotes omitted)
The Chief Justice then quoted from the decision of The Commonwealth v Melbourne Harbour Trust Commissioners, in which Knox CJ, Gavan Duffy and Starke JJ said:
A law does not usurp judicial power because it regulates the method or burden of proving facts.
Brennan CJ then went on to discuss the decision of Williamson v Ah On, and to note that:
Isaacs J pointed out a difference between a rule of evidence and a provision which, though in the form of a rule of evidence, is in truth an impairment of the curial functioning of finding the facts and hence an usurpation of judicial power. He said [at 108]:
“It is one thing to say, for instance, in an Act of Parliament, that a man found in possession of stolen goods shall be conclusively deemed to have stolen them, and quite another to say that he shall be deemed to have stolen them unless he personally proves that he got them honestly.”
…The reversal of an onus of proof affects the manner in which a court approaches the finding of facts but is not open to constitutional objection provided it prescribes a reasonable approach to the assessment of the kind of evidence to which it relates.
(Citations omitted).
These remarks are apposite to the facts of this case. I therefore find that neither ss 174A(2) nor 175(1)(i) of the Road Traffic Act 1961 breach the separation of powers doctine and that they are not bad at law.
I also find that the Magistrate correctly applied both ss 174A(2) and 175(1)(i). The appellant gave evidence at the trials. The effect of his evidence is that he did not dispute the effect of the averments. He gave evidence that there was no justification for the speed limit. He gave evidence that he could not remember whether he was driving but accepted that he may have been and produced no evidence to the contrary.[6] He did not dispute that he was the owner as alleged, nor did he dispute that the area was a 50km/hr speed zone and that the vehicles were travelling in excess of 50km/hr. The appellant conceded on appeal that there was no evidence before the court which countered the evidentiary presumptions that he was the owner of the Toyota van or that he was the driver of the Ford sedan.
[6] Transcript of trial, dated 27 October 2017, page 29 line 17 – page 30 line 3.
I therefore dismiss this ground of appeal.
Ground 4
While ground 4 addressed the question of penalty some of the arguments can be seen as relevant to conviction as well. Indeed the appellant submitted at trial, relying on many of the same arguments, that there was no case to answer. The appellant submitted ss 174A and 175(1)(i) are inconsistent with the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory, and that the Magistrate ought to have considered this when determining his penalty. The appellant submitted the averment provision contained in s 175(1)(i) and the statutory definition of ‘owner’ contained in s174A, which treats the owner and the operator of the vehicle equally in terms of penalty, violate article 14(2) of the ICCPR. Article 14(2) of the ICCPR reads, “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.”
The averment provision contained in s 175(1)(i) allows an accused the opportunity to defend themselves by providing evidence to the contrary that they were the driver or owner; it does not mandate that an accused be found guilty of the offence. It simply operates as an evidentiary aid for the prosecution.
There is no evidence to support the appellant’s submission that treating the driver and the owner of an offending vehicle as equally culpable contravenes an individual’s right to the presumption of innocence contained in article 14(2). The presumption of innocence applies. The Magistrate was aware of the standard of proof required and found the charges proved beyond a reasonable doubt.
The appellant also submitted that the following ICCPR articles were breached; article 14(3)(b) – the right to have adequate time to prepare for one’s defence, article 14(3)(e) – the right to cross examine opposing witnesses, and article 14(3)(g) – the right to not be compelled to testify against oneself or to confess. There was no evidence that, even if the articles applied, that any of them were breached. The appellant received a fair trial.
The appellant also challenged the accuracy of the testing devices. On appeal he argued this point in relation to penalty. I note at trial he argued that the prosecution could not rely on the evidentiary certificates as establishing the accuracy of the detection device. The Magistrate ruled at the close of the prosecution case on that issue. He carefully considered the arguments of the appellant and rejected them. He found he could rely on them to establish a case to answer.
When delivering judgment after hearing all of the evidence including that of the appellant the Magistrate found:
The further proof that is necessary in respect of these charges is that the vehicle on the first occasion was travelling at in the order of 59 km/h and on the second occasion that he was travelling at about 61 km/h and in respect of each of the charges, again, the certificates that were tendered by prosecution satisfy me that the speed detection device in use and referred to particularly in Exhibit P2, P5 and P4 establish when taken with the other certificates establish that the equipment was operating within the parameters that it should have been operating and that it was the vehicle referred to in each Complaints that was the vehicle detected speeding. [sic]
I have considered the evidence in the case and in particular the certificates relied upon and the finding made by the Magistrate was clearly open on the evidence. No error has been shown.
In relation to the question of penalty the principles set out in House v King[7] are applicable. The issue for me is whether the Magistrate was wrong in imposing the sentence that he did including the decision to reduce the demerit points by one. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. The exercise of a judicial discretion is not vitiated by giving a relevant matter less or more weight than the judge before whom the decision is impugned would have given it. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen:[8]
[7] (1935) 55 CLR 499; see also R v Lutze (2014) 121 SASR 144 (Vanstone and Parker JJ).
[8] [2005] HCA 25; (2005) 228 CLR 357, [25].
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
(Citations omitted).
On the question of penalty the accuracy, as I have found, of the testing device was established by way of reliance on various certificates and evidentiary aids. When sentencing the Magistrate regarded the evidence given by the appellant at the trial as an application also to reduce the demerit points that may be imposed. That was an appropriate way for the Magistrate to deal with the matter.
The Magistrate had regard to the lengthy trip to Port Adelaide and back that the appellant took on the day in question and that other than Stonehouse Avenue the trips were in 60km/hr zones.
In relation to the first offence where the appellant was found guilty of travelling at 59km/hr in a 50km/hr zone the Magistrate said:
In respect of that particular offending the circumstances of the offending including those put forward by Mr Jordan do not amount to the offence being trifling or there being other proper basis to reduce the demerit points. The speed alleged is 59. It is pretty much at the top of the range and attracts 2 demerit points. One’s knowledge or otherwise of being 50km/hr zone is not really an issue that would make it trifling or give rise to a proper basis to reduce demerit points, nor is the fact that the other roads that were travelled on have a higher speed.

The appellant was unable to point to any error in the Magistrates reasoning. The appellant submitted that the Magistrate failed to take into account the matters referred to earlier relating to ground 4 of the Appeal. The appellant submitted that because of the inaccuracy of the testing devices, the breach of the doctrine of the separation of powers, the laws of evidence and Australia’s obligations under the ICCPR, the Magistrate should not have imposed any demerit points or, in the exercise of his discretion reduced the demerit points. I have already dismissed the other arguments as bearing on the question of either conviction or penalty. In my view they are not matters the Magistrate could or should have taken into account.
I would dismiss the appeal in relation to the imposition of two demerit points for this offence.
In relation to the second offence, that is where the appellant was found to have been travelling at 61km/hr, the Magistrate took a slightly different view of the offending. He stated:
I am prepared to reduce that from 3 to 2 demerit points and the reason for that is the speed of 61 is just into the range that requires the additional demerit points. While I was prepared to rely upon the accuracy of the speed traffic analyser, whether it is able to distinguish down to 1 km/hr with complete accuracy I do not know, and I accept that essentially for that fact and that fact alone – putting aside the other issues – that it is appropriate for me to exercise that discretion and reduce the demerit points by 1 [it is clear the Magistrate meant to say “to” one].
The Magistrate in this instance did exercise his discretion and reduced the demerit points from three to two.
The appellant again submitted that because of the inaccuracy of the testing devices, the breach of the doctrine of the separation of powers, the laws of evidence and Australia’s obligations under the ICCPR that the Magistrate should not have imposed any demerit points or, in the exercise of his discretion reduced the demerit points. They are not matters the Magistrate could or should have taken into account. No error has been demonstrated in the approach of the Magistrate.
I would dismiss the appeal in relation to this offence as well.
Ground 5
The appellant submitted that prior to the pre-trial conferences in relation to the charges the police did not inform him at they intended to rely on ss 174A(2) and 175(1)(i) of the Road Traffic Act 1961as a means of proof. Thus it was submitted that the police failed to participate in a meaningful way in the pre-trial conference and therefore should be deprived of their costs.
It does not appear that this argument was put to the Magistrate before the penalties and costs were imposed. That is unfortunate as the Magistrate would have been in the best position to determine the question.
The appellant must fail on this ground. The appellant did not allege, nor did he call evidence to support the position, that had that information been provided he would have conducted the matters any differently.
I infer that the appellant became aware, at least during the prosecution opening, of the intended method of proof of the charges. The trials still proceeded. Given the issues raised by the appellant at trial, including his submissions on the applicability of the two sections mentioned, if the information had been provided earlier to the appellant it is likely to have made no difference to how he conducted the trials.
For those reasons I reject this ground of appeal.
Order
Appeal dismissed.