Police v Miller

Case [2018] SASC 97

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…

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Police v Miller [2018] SASC 97
Case
[2018] SASC 97
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CaseChat Overview and Summary

The case of Police v Miller involved the defendant being charged with speeding offences. The trial was held in the Magistrates' Court of South Australia, and the decision was subsequently appealed to a higher court. The key legal issue in the case revolved around the validity of the evidence provided by a Traffic Speed Analyser (TSA) used by the police to measure the speed of the defendant's vehicle. Specifically, the court had to determine whether the TSA was properly calibrated and tested to ensure its accuracy at the time of the incident.

The court examined the process followed by Inspector Peter Kennedy, who signed the certificate for the TSA, and the documents provided to him, including the calibration report and field test results. The court found that Inspector Kennedy did not read the entire calibration report but only noted the date and that it was within the required 12-month period. The court concluded that there was insufficient evidence to show that the TSA was accurate to the extent specified in the certificate. This meant that the presumption under the Road Traffic Act 1974 (SA) s 175(3)(ba) could not be applied.

Given the lack of proper evidence regarding the accuracy of the TSA, the court found that the prosecution had not proven the charges beyond reasonable doubt. Consequently, the appeal was upheld, and the conviction was set aside. The court also noted that the prosecution had made tactical decisions, such as not calling Inspector Kennedy as a witness, which further undermined the reliability of the evidence presented. Ultimately, the court dismissed the complaint and did not order a retrial, considering the circumstances and the lack of proper evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 OBJECTSQUESTION WITHDRAWNEXAMINATIONQDid 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 wayEXAMINATIONQJust 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 HONOURQWhen 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.EXAMINATIONQIf 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 OBJECTSOBJECTON UPHELDEXAMINATIONQYou 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)

Decision

Reasons for decision

PEEK J
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.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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