Police v OWEN - [2007] SASC 153

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
POLICE v OWEN
[2007] SASC 153
Judgment of The Honourable Justice Debelle (ex tempore)
3 May 2007
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
Respondent charged with driving in excess of speed limit – speed analyser tested on day of alleged offence – certificate of accuracy of speed analyser – whether on proper interpretation of s 175(3)(ba) of Road Traffic Act the certificate proved the accuracy of speed analyser for measuring speed of motor vehicles on day of test – appeal allowed.
Acts Interpretation Act 1915 s 22; Road Traffic Act 1961 s 175(3)(b), s 175(3)(ba); Australian Road Rules Rule 21(1), referred to.

POLICE v OWEN
[2007] SASC 153
Magistrates Appeals: Criminal

DEBELLE J. The issue in this appeal turns on the meaning and effect of s 175(3)(ba) of the Road Traffic Act1961.
The respondent was charged in the Magistrates Court at Mount Barker with driving along a road called Long Valley Road at Wistow in excess of the speed limit indicated by a speed limit sign which applied to that road contrary to Rule 21(1) of the Australian Road Rules. The speed limit sign stated that the speed limit was 110 kilometres per hour. It was alleged that the respondent was driving at a speed of 125 kilometres per hour. The alleged offence occurred on 25 September 2005. The respondent pleaded not guilty.
The prosecution was conducted by a police prosecutor. He called one witness, Senior Constable Turner. Turner gave evidence to the effect that he had used a mobile radar traffic speed analyser to detect the speed of the respondent’s vehicle and that the speed was 125 kilometres per hour. The equipment used was called a “Kustom Mobile Radar”. For convenience, I will call it “the speed analyser”.
The prosecution applied to tender a certificate as to the accuracy of the speed analyser. The certificate stated that on 20 September 2005, the day of the alleged offending, the speed analyser had been tested and was shown to be accurate. The solicitor who appeared for the respondent objected to the use of the certificate on the ground that, on the proper interpretation of s 175(3)(ba), it did not prove the accuracy of the speed analyser for measuring the speed of motor vehicles on the day of the test. The magistrate upheld the objection. He then held that, in the absence of other evidence as to speed, the prosecutor had not proved that the respondent was exceeding the speed limit. The magistrate dismissed the complaint. The complainant appeals to this court against that decision.
There is no issue that the conditions precedent to the admissibility of the certificate had been established. The respondent’s solicitor had conceded that, as there was no proof to the contrary of the facts stated in the certificate, the certificate could be used as an aid in proof of the prosecution case of the facts as certified. The argument was that the certificate did not assist the prosecution because it operated only in respect of the day following 20 September 2005, the date on which the speed analyser had been tested. It could not, he submitted, be used to prove the speed of the respondent’s vehicle on 20 September 2005.
The argument misconceives the meaning and effect of paragraph (ba) of s 175(3). Paragraph (ba) is in these terms:
(ba)a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or by any other member of the police force 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 6 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.
When read as a whole it is plain that the certificate was evidence of the accuracy of the speed analyser on the day it was tested as well as on the day immediately following the test. That is apparent from a consideration of what paragraph (ba) states is proved by the certificate. It is 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, in the case of a traffic speed analyser that was at the time of measurement mounted in a fixed housing, during the period of six days immediately following the day of the test or in any other case the day following the day of the test.
The intent of paragraph (ba) is to avoid the need for daily tests of the speed analyser. Plainly, if the analyser has been tested and found to be accurate, it is reasonable to proceed on the footing that, when next used, it will be accurate. Paragraph (ba) deems the speed analyser to be accurate for the whole of the day on which it was tested. That is the plain meaning and effect of the clause in paragraph (ba) which reads that the certificate is proof not only of the test but also of the fact that “the traffic speed analyser was accurate to that extent on the day on which it was so tested”. There is no qualification upon the extent to which the speed analyser is deemed to be accurate for the rest of the day. It is, therefore, deemed to be accurate for all purposes which includes the measurement of the speed of motor vehicles. If a machine is accurate on the day it is tested, it is plainly accurate for all purposes. The intent of paragraph (ba) is that the speed analyser can be used for measuring the speed of a motor vehicle on the day on which it was tested and on later days as specified in subparagraphs (i) and (ii).
If paragraph (ba) had stopped at the end of the clause which reads “that the traffic speed analyser is accurate to that extent on the day on which it was so tested”, the meaning would be quite clear. It could be used for measuring the speed of motor vehicles on the day it was tested. The additional words do not alter that meaning. The purpose of the words which follow is to extend the deemed accuracy for the period specified in subparagraphs (i) and (ii) but only for the purposes of measuring the speed of the motor vehicle.
The speed analyser used on this occasion was not mounted in a fixed housing. Thus, in the particular circumstances of this case, the effect of the certificate is that the speed analyser was accurate on the day it was tested and on the following day.
Ms Fuller, who appears for the respondent, seizes on the words “for the purpose of measuring the speed of any motor vehicle”, and contends that they qualify the operation of the certificate so that it operates only for the purposes specified in subparagraphs (i) and (ii) and not on the day it was tested. The clause “for the purpose of measuring the speed of any motor vehicle” might have been placed more helpfully if it immediately followed subparagraphs (i) and (ii). If that had been so, there could have been no doubt as to the meaning of paragraph (ba). However, the fact that that clause is located as it is in paragraph (ba) does not alter the meaning for the reasons I have already expressed.
The validity of these conclusions can be tested by considering the consequences of the magistrate’s decision. The speed analyser will be tested on one day and found to be accurate. However, notwithstanding that it is accurate on that day, it cannot be used that day to measure the speed of motor vehicles. It will be necessary to wait until the following day. The proposition has only to be stated to demonstrate its absurdity. Ms Fuller sought to demonstrate that the proposition is not absurd by postulating circumstances which might explain why the speed analyser could only be used the following day. With all respect to her argument, she was speculating as to those reasons. None of the reasons she proffered give rise to a reason why the speed analyser could not be used on the day on which it was tested for the purposes of measuring the speed of motor vehicles.
Ms Fuller also pointed to the terms of s 175(3)(b). That provision states that if tested the kind of stop watch to which that provision refers is accurate on the day of the test and on other days. Subparagraph (b) also includes the expression “for the purpose of measuring the speed of any motor vehicle” but locates it after subparagraphs (i) and (ii) which, as I have mentioned earlier, would have been the preferred location for the same clause in paragraph (ba). There is no material difference between these two provisions. Indeed, a comparison of the two, indicates that the clear intent of paragraph (ba) is that the speed analyser can be used for measuring the speed of a motor vehicle both on the day it was tested and, in the particular circumstances of this case, on the day following.
The purpose of paragraph (ba) is manifest. It is an aid to proving the speed of motor vehicles by the use of speed analysers and to avoid the need to call witnesses to establish the accuracy of the speed analyser used on each occasion when an alleged offence is committed. I have adopted a construction of paragraph (ba) which not only accords with the meaning of the words used in that paragraph but also promotes the purposes of the Act and is, therefore, to be preferred: see s 22 of the Acts Interpretation Act 1915.
I have not found it necessary to refer to the Second Reading Speech. It was relied on by the appellant. Reference to the Second Reading Speech only serves to confirm the conclusion I have reached.
For these reasons, the meaning and effect of paragraph (ba) is that the certificate is proof of the accuracy of the speed analyser for measuring the speed of motor vehicles both on the day of the test and on either the following six days or the following day, depending on how the speed analyser is used.
The magistrate therefore erred in failing to admit the certificate into evidence and in failing to rely on it. The appeal will therefore be allowed. There will be an order setting aside the order of the magistrate dismissing the complaint. The complaint will be remitted to the magistrate for further hearing and determination.
The orders will therefore be:
1. Appeal allowed.
2. The respondent pay the appellant’s costs fixed in the sum of $150.
3. Set aside the order dismissing the complaint.
4. Remit the complaint to the magistrate for further hearing and determination.