Police v Owen - [2007] SASC 446

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
POLICE v OWEN
[2007] SASC 446
Judgment of The Honourable Chief Justice Doyle (ex tempore)
7 December 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal by Police against decision of Magistrate - Magistrate dismissed charge of exceeding speed limit - whether Magistrate erred in concluding it was a reasonable possibility that mobile radar failed to record speed accurately.
Held: Appellant failed to show that Magistrate's doubt about reliability of speed reading not reasonable - appeal dismissed.

POLICE v OWEN
[2007] SASC 446
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): This is an appeal by Police against a decision by a Magistrate dismissing a charge. The charge was that Ms Owen drove a motor vehicle at 125 km/h on a road on which the applicable speed limit was 110 km/h.
The Magistrate said that the evidence left him with a reasonable doubt about the reliability of the speed recorded by a portable traffic speed analyser, commonly called a mobile radar. The speed recorded by the mobile radar was the basis of the prosecution case.
The issue on appeal is whether the Magistrate erred in finding that the evidence left him with a reasonable doubt, that is, whether the Magistrate erred in concluding that it was a reasonable possibility that the mobile radar had not accurately recorded the speed of the motor car driven by Ms Owen.
The facts can be stated briefly.
Senior Constable Turner was an experienced police officer and is experienced in using a mobile radar. On 26 September 2005 he was in a stationary police car on Long Valley Road near Wistow. He had a mobile radar unit. There is no reason to doubt that the mobile radar had been tested and was working correctly
He saw a black BMW approaching him and formed the opinion that it might be exceeding the speed limit. He activated the mobile radar. He recorded the speed of the motor car as 125 km/h. There was no indication to him that the mobile radar was not operating properly. The black BMW went past him. After waiting for another car to pass he did a U-turn and set-off after the BMW. In due course he stopped it.
Ms Owen was driving the BMW. Senior Constable Turner agreed that when stopped she denied that she was speeding and asked to look at the speed recorded on the mobile radar.
Ms Owen gave evidence. She said that she saw the police car some distance ahead of her and checked the speed of her car at that time. The speed was 110 km/h.
The defence case, put in cross-examination of Senior Constable Turner and through Ms Owen’s evidence, is this. She claimed that the stretch of road where she encountered the police car and where the speed must have been recorded was about one kilometre south of the position identified by Senior Constable Turner. She also denied that she was driving above 110 km/h.
Of itself the dispute about the location of the incident might seem of no moment. The photographs that Ms Owen took, apparently the day after the incident, of the stretch of road where she said the incident occurred, showed a metallic guard rail on each side of the road and, as best I can tell from the exhibit, along most of that stretch of the road.
The significance of this was that Senior Constable Turner agreed in evidence that he would not have used the mobile radar on that stretch of road because of the potential for interference from the metallic guard rail. So, in that way, the place where the incident occurred became a relevant issue. It was relevant because at that place there was a potential source of interference with the accuracy of the mobile radar, raising the possibility of an erroneous reading.
Senior Constable Turner and Ms Owen were the only witnesses. The Magistrate found that Senior Constable Turner was a satisfactory witness. He said at para [38]:
As a completely generalised statement, I think that the evidence of the police officer is correct and is cogent but I am left with a doubt which his evidence cannot resolve at this distance, precisely where this incident took place.
In his evidence Senior Constable Turner was adamant that the reading was taken where he said it was taken. He was able to identify the stretch of road by reference to photographs put to him in cross-examination. He said that after stopping Ms Owen he drove back to the place where he had recorded her speed to enable him to measure the distance travelled. He confirmed from marks at the side of the road that that was where he had done the U-turn. He was equally adamant that the mobile radar gave no indication that it was affected by interference when he recorded Ms Owen’s speed. His evidence reads convincingly.
But Ms Owen was equally adamant about the location of the incident. The Magistrate found no reason to doubt that she was truthful. He said at para [40] that there was nothing in her demeanour to suggest she was not telling the truth. She relied to some extent on the fact that she had returned to the scene the following day and had taken photographs. The photographs were tendered in evidence.
But the Magistrate had sharply conflicting evidence about the location. There was no reason to doubt either witness. Of itself the location was not essential to the prosecution case, but the conversation by Senior Constable Turner that there was a potential source of interference at the location identified by Ms Owen made the location a relevant fact. The presence of a source of interference provides some support for the defendant’s case which was primarily that the mobile radar must have malfunctioned.
The Magistrate had to weigh up the conflicting evidence, his impressions of the two witnesses and also the evidence from Senior Constable Turner that, in any event, there was no indication that the radar was not working properly. The location of the incident was not, contrary to what the Magistrate said at para [33], of fundamental importance. It was open to the Magistrate to find that the mobile radar reading was accurate even if it was made where Ms Owen said it was made. But if the Magistrate thought it was a reasonable possibility that the reading was made on the stretch of road identified by Ms Owen, there was then a possible basis for a doubt as to the reliability of the reading.
The Magistrate provided detailed reasons. He considered the matter carefully. Apart from wrongly treating the location as being of fundamental importance there is no apparent error in his approach to the issue. His conclusion at paras [41]-[42] was that he was left with a doubt that the evidence could not resolve. He went on to refer to “a lingering doubt”. He said he had to give the benefit of the doubt to Ms Owen.
In my opinion it was open to the Magistrate to conclude that he could not be confident of the place where the reading was recorded. I cannot say that he had to be satisfied beyond reasonable doubt on that point. If he had a doubt about that it was open to him to be left with a reasonable doubt as to the reliability of the reading. This could be either because of interference or perhaps, and somewhat less likely, because of the presence of another vehicle, a matter that was canvassed in the Magistrate’s reasons. Indeed that is the real issue.
In my opinion it cannot be said that it was not open to him to have a reasonable doubt about the reliability of the reading, that doubt arising from him accepting that there was a reasonable possibility that the reading was taken in a place where there was potential for interference or where another vehicle was present.
In submissions, Mr Lesses made every point that there is to be made. His submissions are persuasive. It is one thing to say that the Magistrate’s conclusion is surprising. I must say I do find the conclusion surprising. The evidence of Senior Constable Turner is persuasive. But, for the reasons I have indicated, I am not able to say that the conclusion that he reached was not open to him on the evidence. I am not able to say that there was no basis upon which the Magistrate could have had a reasonable doubt. Accordingly, I dismiss the appeal.
I order:
1 That the appeal be dismissed.
2 That the appellant pay the respondent’s costs fixed at $150.