Police v Miller
[2018] SASC 97
•19 July 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MILLER
[2018] SASC 97
Judgment 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.
At trial, the prosecution called senior constable Milton 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 inspector Kennedy. The prosecution tendered a “certificate” pursuant to RTA s 175(3)(ba), in which inspector Kennedy purported to certify that the TSA was “tested on 2/01/2017 and was shown by the test to be accurate within a limit of error not exceeding plus 2 or minus 3 kilometres per hour”. Inspector Kennedy attended on subpoena and was called by the defence. He gave evidence that the only basis upon which he issued the certificate was the TSA “passing” senior constable Milton’s “five step test” together with the calibration check.
The Magistrate found the charge proven.
Held per Peek J (allowing the appeal):
(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 the charge beyond reasonable doubt. The complaint must therefore be dismissed.
(5) In the alternative, the Magistrate’s errors in his approach to RTA s 175(3)(ba) require the finding of guilt to be set aside and, in the circumstances, it is appropriate to dismiss the complaint.
Road Traffic Act 1961 (SA) s 175(3)(ba), referred to.
Police v Hanton [2018] SASC 96, applied.
Police v Henderson [2018] SASC 98; Police v Butcher (No 2) [2016] SASC 130; Police v Butcher (No 1) (2014) 119 SASR 509; Police v Young (2012) 114 SASR 567; Police v Tereschenko [2000] SASC 300, discussed.
Taylor v Hayes (1990) 53 SASR 282, considered.
POLICE v MILLER
[2018] SASC 97Magistrates 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 charge appears thus:
On the 2ND day of January, 2017 at WAIKERIE in the said State drove a vehicle namely a MOTOR VEHICLE REGISTRATION NUMBER YYX589 on a length of road namely STURT HIGHWAY, to which a speed limit sign applied to you pursuant to rule 21(1) of the Australian Road Rules, over the speed limit of 80 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 94 kilometres per hour.
This is a summary offence.
The complaint was laid on 11 May 2017 but the trial did not commence until 14 February 2018; it was completed that afternoon and judgment was reserved. On 8 March 2018, the Magistrate delivered judgment and found the charge proven. His Honour then heard submissions on penalty including an application for reduction of demerit points. His Honour refused that application, convicted the defendant, and fined him $300 plus costs, fees and Victims of Crime levy.
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;
The appellant’s grounds of appeal
The appellant’s grounds of appeal appear as follows:
1. The learned SM erred in finding that the Appellant had not discharged his onus to provide proof to the contrary to rebut the prima facie presumption raised by the Certificate of Accuracy of the Traffic Speed Analyser – Lidar Device (“Certificate”) tendered pursuant to s 175(3)(ba) Road Traffic Act on the balance of probabilities.
Particulars:
a.There was no evidence before the court of any testing of the Truspeed Laser (“Laser”) to the extent the Laser was shown by the test to be accurate within a limit of error not exceeding plus 2 or minus 3 on the day of the offence, 2 January 2017 by the operator, Police Officer Milton.
b.The evidence of the defence witness, Inspector Kennedy, was evidence/proof to the contrary of his certification in the Certificate that on the 24 August 2017 the Laser was accurate within a limit of error not exceeding plus 2 or minus 3 on 2 January 2017. In evidence he stated that he was not “qualified to say the Laser was accurate within a limit of error not exceeding plus 2 or minus 3”. This is proof to the contrary of what he certified in the Certificate.
c.On 28 August 2017 when Inspector Kennedy certified the Certificate, he had the “field tests” that were conducted before and after the laser duties by Police Officer Milton. All the results of the “field test” were “pass”. There was no field test with the result of plus 2 or minus 3 conducted on 2 January 2017 before Inspector Kennedy.
d.Inspector Kennedy also had the Calibration Report for the Laser dated 25 August 2016. In evidence he said he only read the Calibration Report to check that it was calibrated within the 12 month period of 2 January 2017. He did not read the body of the Calibration report.
e.As a consequence of the evidence there was proof to the contrary of the presumption raised by the Certificate. The Appellant discharged his onus to rebut the presumption raised by the Certificate on the balance of probabilities.
2. The SM erred in finding that the offence was not a trifling offence.
Particulars
a.The Appellant gave evidence on oath that he had turned left from Ian Oliver Drive to travel east on Sturt Highway Waikerie. There was no speed limit sign of 80 kph visible to the Appellant after he turned. The first sign that was visible to the Appellant was about 100 metres east from the point Police had detected his speed. This was not a deliberate offence. There was no other traffic on Sturt Highway.
b.The SM failed to take into account the extent of the accuracy of the Laser in considering the Appellant’s application for the reduction of demerit points.
c.The SM has not provided written reasons for refusing the Appellant’s application for a reduction of demerit points.
Argument of the appeal was not closely constrained to those particulars.
Three sets of reasons are being concurrently delivered
These reasons 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 Henderson[2] (Henderson). Miller and Hanton are appeals that came before me in Magistrate appeals session in May 2018. Henderson is an earlier appeal that came before me in the circumstances recounted in 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 below.
[1] [2018] SASC 96.
[2] [2018] SASC 98.
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 MILLER
The trial commenced on 14 February 2018. The prosecutor was Ms Francis, a solicitor employed or retained by SAPOL, and the appellant was represented by Mr Lloyd, his solicitor. At the outset, the prosecutor tendered the one and only exhibit received at trial, exhibit P1: a certificate furnished and signed by inspector Peter Kennedy dated 24 August 2017. It appears thus:
TO BE COMPLETED BY A SENIOR OFFICER (OF OR ABOVE THE RANK OF INSPECTOR) I, [PETER MARTIN KENNEDY]
(Officer of Police Full Name)
certify that:
Laser Technology Inc. LTI20/20 TruSpeed Laser serial number: TS008827
(LIDAR Device) (LIDAR Serial Number)
was tested on 02/01/2017 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]______ ____[INSP]___ __[33455]__ on _24 August 2017]__
(Signature of Officer of Police) (Rank) (ID) (Date)The evidence of senior constable Milton
The prosecutor then called the only prosecution witness, senior constable Milton (Milton). He first gave the following evidence concerning his familiarity with, and testing of, the LIDAR or laser speed detecting device on 2 January 2017 prior to commencing speed detection:
QAnd how are you familiar with that device?
AI’ve been trained in that device and been using that particular one for 18 months to two years.
QHave you used other devices of that kind?
APrevious to that one I used the model beforehand for approximately three years.
QAnd how often would you say that you conduct duties with a handheld laser?
AGenerally out of a week of five shifts I’d probably use that particular instrument probably three times, three days.
…
QCan you describe in some detail your use of the device in detecting vehicles on that day?
AWhat I did on that particular day was I conducted a field test on the device.
QWhere was that field test conducted?
AAt the Waikerie Police Station.
QWhen did you conduct that test?
APrior to commencing laser duties.
QCan you tell the court what that field test involves?
AThere’s five steps I did to test the device. First one was a visual inspection so I’d have a look at the device and make sure there’s no visible damage, ensure the calibration’s within date and that the security seal’s not tampered with.
QCan you tell the court what the result of that visual test was?
AIt passed.
QYou said it was a five step test?
AYep.
QWhat were the other tests you conducted?
AThe other one is a self-test so you turn the instrument on and it conducts a test within itself and it would display any errors on the screen.
QWhere are any errors displayed on the screen?
AThere’s an LCD screen on the back of the laser it displays it on there.
QIn this case what was the result?
ANo errors.
QThe next test you conducted?
AIs a display test so you turn your unit on and make sure that all the LCD display’s reading accurately and also inside the scope there’s a display in there so you make sure that one’s reading accurately as well and that one passed.
QAnd you conducted some further tests?
AYep so there’s a scope alignment test which is I put the device into a particular mode, it sends out a tone I would then pick an object that’s over 70 metres away, it’s a solid object, it’s stationary and I sweep the laser across and it changes tone both horizontally and vertically and it passed that one as well and the other one is a fixed distance zero velocity test which is a measured distance at the Waikerie Police Station so I conduct the test by turning it on and aiming it at the reflector and it gives me a reading on the back.
QCan you tell the court what that fixed distance is?
AIt’s a distance of 20 metres and obviously zero speed.
QWhat were the results of the fixed distance zero velocity test?
AIt read back to me that it was 20 metres and zero speed.
QWhat does that mean in terms of the test passing or failing?
AIt means it passed.
QCan you tell the court what result needs to be achieved for it to pass those tests?
AIt’s got a tolerance level of plus or minus 2 kilometres and plus or minus 20 centimetres.
QSo with respect to 20 metres that means a pass falls within 19.8 and 20.2 metres is that correct?
ACorrect.
QWhat does that mean with respect to the velocity test?
AThe velocity test would need to be either minus 2 or plus 2 on the speed.
QYou said the speed it recorded was zero?
ACorrect.
The relevant passage in his cross-examination appears as follows:
QJust referring to your notebook at page 50 what’s the first record you have in regard to the speed laser?
AOkay so page 50 the serial number is TS008827, it was last calibrated on 25th of the eighth 2016, the commencement of the field test date was 2 January 2017 at 17:25 or 5.25 p.m. it was conducted at the Waikerie Police Station the five tests are listed there as a pass.
QAnd you indicated a pass for the five tests?
AThat’s right.
QYep.
ANo other detail in regard to the tests.
ANo.
QNo, yes go on.
AOkay and the end of operation test was the same date being at 22:35 or 10.35 p.m. also conducted at Waikerie Police Station and the five steps were a pass.
QYes, so your testing on 2 January 2017 indicated that the device passed and nothing else?
AThat’s right.
QDid you provide a copy of that notebook page 50 to any person to issue a certificate?
AI did.
QWho did you provide that to?
AInspector Kennedy.
QDid you provide him with anything else?
AYes the certificate for the serial number of the device that I used and that was in reference to its calibration date.
QYou’ve told us the calibration date was August 25 2015?
A16.
Q16 sorry.
AYeah.
QAny other test you produced to Inspector Kennedy?
ANo just those two.
Consideration of senior constable Milton’s evidence
The prosecution did not suggest that the training of Milton extended beyond the regular use of the TSA in speed detection and the conducting of the five step test plus calibration check procedure. He in no way claimed to be qualified to give expert evidence concerning the science based principles upon which the TSA relied and nor did he claim to understand (let alone relate) how it was that the fixed distance zero 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.
Milton asserted that the TSA has “a tolerance level of plus or minus 2 kilometres and plus or minus 20 centimetres”, but that is no more than a stated belief that the TSA is designed to have that limit of error. As it happens, this was somewhat embarrassing for the prosecution which was seeking to support the quite different limit of error of “not exceeding plus 2 or minus 3 kilometres per hour” which was asserted in exhibit P1. If one were to take Milton’s evidence at face value one might proclaim that here is clear and direct “evidence to the contrary of that averred in the certificate”; but I think that would be highly disingenuous. The plain fact is that Milton was in no way qualified as an expert and, when trying to recall the limit of error on the calibration report, was simply unable to do so correctly.
Of course, Milton was correct in thinking that the TSA was able to accurately measure a distance of 20 metres. But there was a complete dearth of evidence as to what its limit of error actually was if used to measure the speed of a moving motor vehicle as at the time of the performance of the required statutory test. As explained in more detail in Hanton, s 175(3)(ba) does not specify any particular “extent of accuracy” that must be attained by a TSA; rather, the “extent of accuracy” appearing in a certificate issued pursuant to s 175(3)(ba) must be what is actually shown by the statutory test to be the TSA’s extent of accuracy as at the time of the performance of that statutory test. Put another way, the question to be considered is whether the statutory test showed or failed to show what the actual limit of error of the particular TSA unit was at the time of the statutory test as distinct from a quite different question of what limit of error that make and model of TSA should have by reference to its design specifications, manufacturer’s instructions or Australian Standards.
The evidence of inspector Peter Kennedy
Mr Lloyd called inspector Peter Kennedy (Kennedy) (who attended on subpoena). He had signed and furnished the certificate dated 24 August 2017, exhibit P1. His relevant examination-in-chief (adduced by defence counsel) was as follows:
QCan you tell the court what test you were actually given or shown to be able to produce that certificate?
AThis was the first certificate of this nature that I had completed and I had documentation presented to me by the senior constable at Waikerie Police Station which I read through, followed a process within that paperwork and completed the certificate. If I could refer to the documentation.
QYeah?
AI could tell you what was produced to me I have a copy.
QI have no objections if the prosecutor doesn’t. Can you refer to your documents and tell us the process?
AThe PD form the Police Department Form is a PD477 and there’s instructions to officers of police and I followed those and the documents that were produced to me were a copy of the expiation notice, the calibration report and the field test results of the officer, the cover I believe of the notebook style document and the internal page that related to the specified field test.
QRight if you could look at the notebook of the officer’s that was provided to you is that page 50 referring to speed detection equipment field test results calibration dated 25 August 2016 and then to tests conducted on 2 January 2017?
AYes I have that page in front of me.
QWhat did that notebook tell you about the field test?
AIt told me that the field test was conducted at 17:25 hours and that out of the five tests that were required to be conducted it passed each of those five tests at 17:25 and that was the commencement of operations. At the end of operations the field test was completed again at 22:35 hours and it passed the five components once again.
QSo on that notebook there’s no testing that indicates an accuracy of the device to any extent?
OBJECTION: MS S FRANCIS OBJECTS
QUESTION WITHDRAWN
EXAMINATION
QDid you have any other documentation for any testing on 2 January 2017?
AThat is the test that was produced to me that is the only test that I was shown that would have occurred on 2 January 2017.
QAnd there were no tests on the day after that were produced to you, 3 January 2017?
AThese documents here are the only ones that were produced to me at the time regarding the certificate.
QIf you then look at the calibration report can you tell us what date that test was for that Truspeed laser?
AThat document is dated 25/8/2016.
QDoes that calibration report tell us anything about the accuracy of that device on 25 August 2016?
AIt makes several comments within there about the accuracy of the device.
QDid you read the comments about the accuracy when you completed the certificate?
AIf I can just refer back to the officer’s instructions, the instructions I would have complied with were ‘I have sighted a copy of the calibration certificate for the instrument and am satisfied that the instrument was calibrated within the 12 months prior to the use’ so I would have gone ‘is there a certificate’ and there was and then I would have gone ‘is that calibration within 12 months prior to its use’ which it is and I would have looked no further.
QRight, so you’ve then issued the certificate based on the date of the calibration being within 12 months and the field test that showed a pass result for each test is that correct?
AI issued the certificate after following the instructions on page 3 of the PD477 step by step and each of those steps have been satisfied so I issued the certificate.
QAnd you’re quite clear you didn’t read the calibration report apart from noting the date and it was within 12 months?
HIS HONOUR: I thought he said he read the report and he noted the date, I just want to be clear on what you’re putting to him, my understanding was that he read the report you now seem to be putting to him no you didn’t read the report all you noted was the date. I don’t think that was his evidence I’m happy for you to clarify that but I want you to be fair in what you’re putting to the inspector.
MR M LLYOD: I understood it the other way
EXAMINATION
QJust in regard to the calibration report, you’ve heard His Honour’s comments, your evidence as I understand was that you looked at the calibration report saw the date 25 August 2016 saw it was within 12 months and that satisfied your requirements for the departmental procedure is that correct?
AThat is correct.
HIS HONOUR
QWhen you looked at the calibration report does that mean you read the whole report or simply looked at the date?
AI did not read the whole report I just looked at the date and the fact that the certificate was there and it was within the date period.
EXAMINATION
QIf you look at P1 you have certified in that document a degree of accuracy on reflection are you able to certify that degree of accuracy now based on what you’ve told us?
ACan you just go over that question again please.
QLooking at P1 that reflects a degree of accuracy of the laser device, you see that?
AYes.
QOn reflection on your evidence you’ve given us today are you able to certify that that laser device was accurate to the degree of plus 2 or minus 3 in relation to the documentation you saw before issuing the certificate?
AI’m struggling to answer your question definitively I think the clarity would come from me saying that I followed the departmental process, the documentation was there that was required to be there and the process told me that if these things were there I was then able to sign the certificate, past that to say what I’m certifying about the accuracy of the document I don’t feel qualified to speak on that definitively.
QAnd that is on the basis that on 2 January 2017 you had no tests other than tests that indicated pass?
OBJECTION: MS A FRANCIS OBJECTS
OBJECTON UPHELD
EXAMINATION
QYou told us the testing on 2 January 2017 were in the notebook of the police officer and they were all field tests and they were all just recorded as pass?
AThat is correct.
QThere was one other test on 2 January 2017 was there?
AI can’t answer that question but the only evidence or information produced to me was what’s contained here that shows from the officer’s notebook showing pass.
(Emphasis added)
Inspector Kennedy was then cross-examined by Ms Francis. The cross‑examination in full was as follows:
QInspector Kennedy would you have signed the certificate of accuracy if the device had not been field tested?
ANo I would not have it wouldn’t have meet the criteria.
QFurther to that would you have signed the certificate of accuracy if you had not been provided with information that indicated the device had passed the field test on that day?
AThat is also correct.
QSorry I asked would you have signed the certificate?
AI wouldn’t have signed the certificate.
QThank you?
AIf one of those tests hadn’t passed.
QIsn’t it the case that if the device passes the field test you can be confident the device is accurate to the limits of plus 2 minus 3 kilometres per hour on that day providing it had been calibrated within those limits in the preceding 12 months?
OBJECTION: MR M LLOYD OBJECTS
OBJECTION OVERRULED
QIsn’t it the case that if the device passes the field test you can be confident the device is accurate to the limits of plus 2 minus 3 kilometres per hour on that day providing it had been calibrated within those limits in the preceding 12 months?
AI don’t believe I’m qualified to make that statement.
QDo you understand what the effect of the device passing each of the field tests is?
AI couldn’t tell you in detail what each of those fields are just that evidence was produced to me that they had been conducted and passed.
HIS HONOUR
QMy understanding is you signed the certificate because you were satisfied that the field tests had been conducted by the officer, that the result of each field test both at the commencement and the expiration of the operation were passes and because of the calibration report, the date of the calibration report saying it had been calibrated within 12 months. Is it because of those factors and only because of those factors that you signed the certificate?
AThat is correct yes.
NO RE-EXAMINATION
WITNESS STANDS DOWN (Emphasis added)
Consideration of inspector Kennedy’s evidence
I do not consider that Kennedy was deliberately seeking to mislead the Court. However, from his very first answer in evidence-in-chief, it was plain that he had very little idea about the legal position concerning RTA s 175(3)(ba) or any of the scientific principles concerning the traffic speed analyser unit in question; all he did was follow an internal paper procedure. As he said:
AThis was the first certificate of this nature that I had completed and I had documentation presented to me by the senior constable at Waikerie Police Station which I read through, followed a process within that paperwork and completed the certificate. (Emphasis added)
And later in his evidence-in-chief:
QOn reflection on your evidence you’ve given us today are you able to certify that that laser device was accurate to the degree of plus 2 or minus 3 in relation to the documentation you saw before issuing the certificate?
AI’m struggling to answer your question definitively I think the clarity would come from me saying that I followed the departmental process, the documentation was there that was required to be there and the process told me that if these things were there I was then able to sign the certificate, past that to say what I’m certifying about the accuracy of the document I don’t feel qualified to speak on that definitively. (Emphasis added)
Here, after flailing about with some “Yes, Minister”[3] style of defensive jargon, Kennedy again candidly admitted that all he had done was follow a departmental process set out in an internal police document PD 447. He stated that this was that if the materials that were in fact in front of him were present (namely a report by the testing constable that the five field tests were passed and a current calibration report), then he was “able to sign the certificate”. He then proceeded to volunteer that: “past that to say what I’m certifying about the accuracy of the document I don’t feel qualified to speak on that definitively”.
[3] Circa early 1980’s.
Kennedy’s cross-examination by Ms Francis was counter-productive for the prosecution; it concluded in the following way:
QIsn’t it the case that if the device passes the field test you can be confident the device is accurate to the limits of plus 2 minus 3 kilometres per hour on that day providing it had been calibrated within those limits in the preceding 12 months?
AI don’t believe I’m qualified to make that statement.
QDo you understand what the effect of the device passing each of the field tests is?
AI couldn’t tell you in detail what each of those fields are just that evidence was produced to me that they had been conducted and passed.
HIS HONOUR
QMy understanding is you signed the certificate because you were satisfied that the field tests had been conducted by the officer, that the result of each field test both at the commencement and the expiration of the operation were passes and because of the calibration report, the date of the calibration report saying it had been calibrated within 12 months. Is it because of those factors and only because of those factors that you signed the certificate?
AThat is correct yes.
NO RE-EXAMINATION (Emphasis added)
Thus Kennedy’s evidence was plainly that he believed that SAPOL protocol was that if the TSA had “passed” the five step test plus calibration check procedure he should issue the certificate. The portions of his evidence referred to immediately above (and particularly his last answer) make plain that he issued the certificate because of the factors delineated in the Magistrate’s question, and only because of them. Kennedy had every opportunity to advance any plausible information or evidence which tended to establish that the statutory test showed a particular extent of accuracy but was quite unable to do so.
In his reasons, the Magistrate took the approach that it was “significant” that Kennedy “did not concede that the field tests and exhibit P1 did not show the device to be accurate within a limit of error not exceeding +2 or -3 kilometres per hour”. With all respect, the prosecution had refused to call Kennedy as a prosecution witness and thus denied the defendant the ability to cross-examine him. The nearest that the defence came to putting a proposition to Kennedy that “the field tests and exhibit P1 did not show the device to be accurate within a limit of error not exceeding +2 or -3 kilometres per hour” was the question objected to above thus:
QSo on that notebook there’s no testing that indicates an accuracy of the device to any extent?
OBJECTION: MS S FRANCIS OBJECTS
QUESTION WITHDRAWN
The objection was obviously legally valid, as was recognised by counsel for the defendant. However, the point is that Kennedy was the certifying senior police officer and the fact that he did not “concede” what the defence counsel obviously wished him to in the sense of saying something like “I agree with you, the TSA did not show the device to be accurate within a limit of error not exceeding +2 or -3 kilometres per hour’” is hardly a great surprise. Of greater relevance, when the correct interpretation of RTA s 175(3)(ba) is appreciated, the sum of Kennedy’s evidence does amount to a recognition of the obvious fact that the statutory test failed to show the limit of accuracy stated in the certificate.
The evidence of the defendant
The defendant gave brief evidence. He stated that he had been travelling at 80 kilometres per hour on Ian Oliver Drive, where the speed limit was 80 kilometres per hour, and was approaching the junction with the Sturt Highway where he assumed that the speed limit was 100 kilometres per hour or 110 kilometres per hour. (It is possible that he slowed down while approaching the junction with the Sturt Highway to a speed significantly under 80 kilometres per hour but he does not expressly say this in his evidence.) He stated that he turned left onto the Sturt Highway and was slowly increasing his speed through the gears; he was travelling at about 80 kilometres per hour when he saw a police car flashing lights, and he pulled over to the side of the highway. At trial, neither side placed weight on the defendant’s evidence and it is unnecessary to consider it further.
PART 7: THE MAGISTRATE’S REASONS AND THE APPEAL
In his judgment, the Magistrate first set out (at pages 1 to 3) summaries of the prosecution evidence (exhibit P1 and the evidence of Milton) and that tendered by the defence (the evidence of Kennedy and the defendant himself.). His Honour then set out (at pages 3 to 5) a “summary of prosecution submissions”. After referring to the decisions in Police v Butcher,[4] Police v Butcher (No 2)[5] and Police v Young,[6] his Honour stated:
[4] (2014) 119 SASR 509.
[5] [2016] SASC 130.
[6] (2012) 114 SASR 509.
21. In relation to the evidence of Kennedy it was submitted that his evidence did not constitute proof to the contrary so as to defeat the operation of the presumption. Kennedy relied upon a checklist and was satisfied based on the information provided to him that he could properly sign the certificate. He agreed that he signed the certificate because he was satisfied the field test was conducted, that he was satisfied that it passed all tests, and that it was calibrated within 12 months. It was apparent that the field testing conducted on the day was vital to him being satisfied that the device was accurate to within the limits of +2 and -3 kilometres an hour on that day (as certified in the certificates).
22. It was submitted that Kennedy’s uncertainty as to whether he was ‘able to certify the device was accurate to the degree of accuracy now in relation to the documents he saw before’ does not undermine the prosecution case. In all respects it was submitted Kennedy’s evidence supported that he was satisfied he could sign the certificates at the relevant time.
23. Prosecution submitted that the agreed facts before Stanley J in Butcher, specifically that the field test did not show the lidar to be accurate to the extent of +2, -3 kilometres an hour, were not agreed in this matter and therefore the reasoning of His Honour in Butcher does not apply. It was submitted that the evidence of Kennedy in this matter was quite different to the evidence which was agreed in Butcher.
24. It was therefore submitted that the evidence of Exhibit P1 together with Milton’s evidence established that:
(a) The defendant was the driver of a motor cycle YYX589 on the Sturt Highway on 2 January 2017.
(b) The Sturt Highway at the relevant section is an 80 kilometres an hour signed speed limit zone.
(c) The defendant was detected by lidar operation by Milton to be travelling at 94 kilometres an hours [sic] just before 6 p.m. on that day.
(d) The lidar used by Milton was tested on 2 January 2017 and was shown by the test to be accurate within in [sic] limit of error not exceeding +2 or -3 kilometres an hour and was accurate to that extent on 2 January 2017.
25. [This paragraph is blank]
26. It was submitted that the defendant had failed to establish on the balance of probabilities proof to the contrary the matters certified in P1. Prosecution therefore submitted that the court ought to find the charge proven.
The Magistrate, after setting out (at page 5) a “summary of defence submissions”, plainly adopted the prosecution position as he had summarised it. His Honour stated his reasons for decision at the final page 6 of the judgment under the heading “Determination” which I set out in full:
31. In my view the evidence in this case differs from that in Butcher. In my view the agreed facts in Butcher played a significant role in the ultimate outcome of that matter. No such agreed facts were before me. Kennedy’s evidence as to why he signed the certificate was clear. He did so because he was satisfied the field tests had been conducted, the device had passed all the tests and he was satisfied the device had been calibrated within 12 months. Significantly, Kennedy did not concede that the field tests and Exhibit P1 did not show the device to be accurate within a limit of error not exceeding +2 or -3 kilometres per hour. In my view any uncertainty expressed on his behalf and any concerns expressed by him as to his qualifications do not undermine the prosecution case. I am satisfied that in all respects Kennedy’s evidence supports the prosecution case. I am satisfied that in all respects Kennedy’s evidence supports the contention that he was satisfied he could properly sign the certificate at the relevant time.
32. I therefore find that the evidence of Milton and Exhibit P1 establishes that the defendant was the driver of the motor vehicle in the 80 zone and was detected by the device travelling at 94 kilometres per hour. I find the device used by Milton was tested on 2 January 2017 and was shown by the test to be accurate within the limit of error not exceeding +2 or -3 kilometres per hour and was accurate to that extent on 2 January 2017. I find that the defendant has failed to establish on the balance of probabilities proof to the contrary of the matters certified in Exhibit P1.
33.I find the charge proved.
Submissions by the parties on the appeal
Counsel for the appellant made submissions in line with the particulars of his ground of appeal as reproduced above at paragraph [4].
The respondent’s outline of argument took the following position:
3.In relation to the appeal against conviction, the respondent submits that the appellant did not adduce evidence establishing “proof to the contrary” of the facts certified in exhibit P1. In other words, the appellant failed to prove on the balance of probabilities that the device was not shown by the testing on the day to be accurate to the certified extent. As the Magistrate found, there was no concession made by any witness that the field tests did not show the device to be accurate to the certified limit of error. The appellant’s challenge was simply a challenge to the sufficiency of the evidence before the certifying officer. That cannot amount to proof to the contrary of the certified facts for the reasons outlined in Butcher (No 1).
Later counsel submitted in the same vein:
21.… The certificate establishes a statutory presumption “without regard to the facts”. Proof to the contrary cannot be demonstrated by “pointing to the absence of sufficient evidence of the facts certified before the relevant police officer”.
22.This must be correct as a matter of construction of s175(3)(ba), having regard to its evident purpose - namely, to relieve the prosecution of the onerous task of proving by reference to expert evidence, in every single one of the hundreds of disputed traffic cases, the accuracy of the device beyond a reasonable doubt. [Footnote 32 - Police v Tereschenko per Duggan J at [23]]. Adopting a purposive construction of s 175(3)(ba), this purpose would be entirely defeated if it was necessary for the certifying officer to themselves be an expert in certifying the accuracy of LIDAR devices.
With respect, counsel’s submission in paragraph [22] is unhelpful for several reasons. One is that there is no suggestion here that “it was necessary for the certifying officer to themselves be an expert in certifying the accuracy of LIDAR devices”. What is suggested is stated in Hanton thus:[7]
Thus, a certifying senior police officer must conscientiously comply with a solemn and important process of certification to the Courts of South Australia[8] in circumstances where the certificate, if issued, may have the effect of in itself proving a central aspect of a prosecution case beyond reasonable doubt. I emphasise that it is not suggested that the certifying senior police officer must be an expert before he or she is able to assess relevant information and give one of the three possible answers referred to below; rather, a senior police officer will be taken to be familiar with accepting serious responsibilities and assessing information so as to reach a required state of mind.
[7] [2018] SASC 96 [78].
[8] Most such certificates will be used in the Magistrates Court, but they will continue to be relied upon by the prosecution should the matter proceed by way of appeal to the Higher Courts. Further, such certificates are not infrequently used in trials in the Higher Court’s in relation to charges such as cause death by dangerous driving.
It should be remembered that a RTA s 175(3)(ba) certificate is only requested in a very small percentage of speeding detections; and then only when it is clear that the matter will proceed to a trial.
As to the decision in Police v Tereschenko (Tereschenko), it did not involve a device comparable to radar or lidar; rather, it was a good old fashioned “follow and time” case in which police officers asserted that on 17 October 1998 they had followed the defendant over a distance of 300 metres and that he was then travelling at no less than 120 kilometres per hour by reference to an analogue speedometer in the police vehicle.[9] Such a speedometer is of course recognised at common law as being within a class of devices the accuracy of which may be presumed.[10] The prosecution called an expert witness, Mr Silvani, who had tested the analogue speedometer on 19 October 1998 and found that at an indicated speed of 60 kilometres per hour, the vehicle was travelling at 60.9 kilometres per hour and at an indicated speed of 100 kilometres per hour, the actual speed was 100.6 kilometres per hour. The Magistrate acquitted. Duggan J allowed the prosecution appeal. The only relevance is the Magistrate’s finding that Mr Silvani’s evidence was “proof to the contrary of what was stated in the certificate”. Duggan J said:
[22] … I do not accept that Mr Silvani’s evidence amounted to proof to the contrary of what was stated in the certificate. He [the Magistrate] said the basis for this finding was that there was no evidence of the accuracy of the testing device; that there was a concession made by Mr Silvani that on the face of the certificate his tests indicated inaccuracy; and that there were variations between the speed actually recorded and the speeds referred to in the certificate.
[23] In my view, lack of evidence as to the accuracy of the testing device was an irrelevant consideration. The issue was whether the prosecution was entitled to rely on the presumption created by s 175(3)(b). The purpose of the presumption is to render unnecessary proof of such matters as the accuracy of the testing equipment.
…
[26] … As I have said, the purpose of the certificate is to establish the degree of accuracy of the speedometer. The effect of the certificate in this case is that the speedometer can be relied upon as being accurate within one kilometre per hour. In the case of the actual tests, the extent to which it was showing a different reading from the actual speed was .6 of a kilometre per hour on one occasion and .9 of a kilometre per hour on another occasion. There is nothing in the section to suggest that the person conducting the test cannot express the degree of accuracy in whole numbers. In my view it is unrealistic to view the evidence of Mr Silvani as proof to the contrary of what was certified in the document presented to the court. (Emphasis added)
[9] [2000] SASC 300.
[10] In South Australia, RTA s 175(3)(b) limits that presumption to a period of three months before and after its accuracy is tested.
Bearing in mind the present respondent’s submission, it is important to note that when Duggan J referred at paragraph [23] to the accuracy of the “testing device” and the “testing equipment”, he was not referring to the analogue speedometer (as counsel for the respondent wrongly assumes) but rather to the Magistrate’s statement that the basis for his finding was that there was no evidence of the accuracy of “the testing device” or “testing equipment” used by Mr Silvani to test that analogue speedometer. Thus, in Tereschenko, a speedometer, accepted at common law to be a reliable measuring device, was subjected to external objective testing by a qualified expert (Mr Silvani) only two days after the subject incident and was objectively demonstrated to be accurate within an entirely satisfactory range. By contrast, in the case before this Court we have a device not accepted by the common law to be a reliable measuring device, which was not subjected to external objective testing by a qualified expert at any time proximate to the subject incident and was not objectively demonstrated by the statutory test to be accurate within any range.
Indeed, this contrast is a poignant reminder of the same contrast advanced by the honourable members of the legislative council in 1964 as between demonstrable and objective external testing (as clearly occurred in Tereschenko), on the one hand and internal checking to be performed by the very unit which is supposed to be checked, on the other hand. And hence their very understandable insistence on the amendment to clause 28 in the manner described in Part 2 of the Hanton judgment.
Reverting to the respondent’s written submissions, paragraphs [3] and [21] reproduced do not correctly state the position concerning the defendant’s onus of proof. A detailed analysis of the correct position appears in Hanton.
I turn to consider whether this appeal should be allowed and, if so, what dispositional orders should be made.
The Magistrate’s analysis of Police v Butcher (No 2)
The Magistrate stated at paragraph [31] of his judgment:
In my view the evidence in this case differs from that in Butcher.[11] In my view the agreed facts in Butcher played a significant role in the ultimate outcome of that matter. No such agreed facts were before me.
[11] The Magistrate intends to refer to Police vButcher (No 2) [2016] SASC 130.
It is worth mentioning that the “agreed facts” had no status other than that they constituted the factual evidence that Quinn would have given on certain particular topics had he been called by a party and it is none to the point that the evidence of inspector Kennedy in the present case was not presented in the form of “agreed facts”. Kennedy attended and gave oral evidence on those same particular topics which evidence, on correct analysis, was to the same effect as the “agreed facts” in Butcher (No 2).
The Magistrate’s analysis of the evidence of inspector Kennedy
As noted above, the Magistrate stated:
31. Kennedy’s evidence as to why he signed the certificate was clear. He did so because he was satisfied the field tests had been conducted, the device had passed all the tests and he was satisfied the device had been calibrated within 12 months. Significantly, Kennedy did not concede that the field tests and Exhibit P1 did not show the device to be accurate within a limit of error not exceeding +2 or -3 kilometres per hour. In my view any uncertainty expressed on his behalf and any concerns expressed by him as to his qualifications do not undermine the prosecution case. I am satisfied that in all respects Kennedy’s evidence supports the prosecution case. I am satisfied that in all respects Kennedy’s evidence supports the contention that he was satisfied he could properly sign the certificate at the relevant time.
With respect, this only confirms that his Honour seriously erred in his approach to, and analysis of, RTA s 175(3)(ba). Satisfaction by the Magistrate that Kennedy “was satisfied he could properly sign the certificate at the relevant time” really is irrelevant here. The Magistrate failed to direct himself, or to appreciate, the following matters which are more fully set out in Hanton but may be summarised here as follows.
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”.
Second, 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”.
Third, 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.
Fourth, there is a significant distinction between external testing[12] and internal testing[13] 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 twelve months) will be taken to be the current extent of accuracy of that unit, provided that the rudimentary test 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.
[12] External testing occurs when one tests the accuracy of a device by reference to an external standard that can be seen to be trustworthy.
[13] 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.
Fifth, if the defendant wishes to contest the permissible certified fact, his 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.
Conclusion and disposition
On appeal, this Court is in the same position as the Magistrate to consider the materials that were before his Honour and to make a determination as to whether either of the charges were proven. Questions of credibility of witnesses do not here arise.[14] I find that, on a correct consideration of all of the evidence, the plaintiff has proven on the balance of probabilities that, although senior constable Milton purported to “test” the specified TSA unit on 2 January 2017, the specified TSA was not shown by the required statutory test on the specified day to be accurate to the extent indicated in the certificate.
[14] See Taylor v Hayes (1990) 53 SASR 282.
That being so, the prosecution should not have had the benefit of the presumption at trial. It was not suggested at trial, or on the appeal, that if it is found that the prosecution cannot avail itself of the RTA s 175(3)(ba) presumption, then the other evidence of observations by Milton could support a finding of guilt beyond reasonable doubt. The charges were not proven beyond reasonable doubt and therefore the complaint should be dismissed with no order for a re-trial.
In the alternative to the above line of reasoning, I find that the Magistrate erred in his approach to, and analysis of, critical matters and that the conviction was thereby unsatisfactory. Those errors in themselves require that the findings of guilt on both counts be set aside. This alternative mode of determination leads to a consideration of the discretion to dismiss the complaint or order a re-trial.
This is not a case in which it would be appropriate to order a re-trial on either count. Before the trial commenced on 14 February 2018, the prosecution were aware that there was going to be a challenge to the application of the RTA s 175(3)(ba) presumption and that inspector Kennedy was to be subpoenaed by the defence to give evidence. At a pre-trial conference on 11 December 2017 (at which Mr Lloyd and Ms Francis attended) the matter was unable to be resolved and was set down for trial. The prosecution were aware from other litigation in the matters of Butcher (No 2) and Henderson that this general challenge extended beyond the case of Miller. The prosecution made a number of tactical decisions, including a refusal to call inspector Kennedy as a prosecution witness, so as to gain the advantage of being able to cross-examine him and of denying that ability to the defence. Most importantly, the prosecution declined to call any expert evidence of the type referred to by prosecution counsel on the hearing of the appeal in Henderson.
It would be unduly oppressive to order a re-trial having regard to all of the above matters and the following further matters:
-It would be unfair in all of the circumstances to allow the prosecution, having made the above choices, to have another chance to prosecute the appellant and possibly take a different tactical approach.
-If the TSA were accurate to the extent stated in the certificate, an excess of 12 kilometres per hour[15] over the speed limit of 80 kilometres per hour is not trivial. However, there were objectively mitigating features in that: there was no other vehicle on the road; there was nothing that was dangerous about the manner of driving; the weather was fine; the road was a straight highway and was dry; the conditions were semi-rural; and the condition of the motor bike was not faulted.
-There were arguably subjective mitigating features in that: the defendant gave evidence (which was not disbelieved by the Magistrate) that he had been travelling at 80 kilometres per hour on Ian Oliver Drive (where the speed limit was 80 kilometres per hour) and had turned on to the Sturt Highway where he assumed (wrongly) that the speed limit was 100 kilometres per hour or 110 kilometres per hour.
-The charges even now are quite stale; by the time of a re-trial, the charges would by then have hung over the appellant for an inordinate period of time with associated features of stress and uncertainty of resolution.
-In both Butcher (No 2) and Henderson no submission was put by the prosecution that, the appeal having been allowed, there should be an order for a re-trial and no such order was made in either case.
[15] Taking the claimed limit of error in the appellants favour.
Accordingly, by reference to each of the alternative pathways referred to above,[16] the appropriate disposition is that the complaint is dismissed with no order for a re-trial to be made on either count. In the circumstances it is unnecessary to consider the appeal against sentence.
[16] See Taylor v Hayes (1990) 53 SASR 282.
Disposition of the appeal.
For the reasons stated above, I allow the appeal. I make the following orders:
1The appeal is allowed.
2The finding of guilt and the conviction (and all orders made including as to penalty, costs and Victims of Crime levy) are set aside.
3The complaint is dismissed.
4Any amounts paid by the appellant by reference to the Magistrate’s orders referred to in order 2 above be refunded to the appellant as soon as possible.
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