Police v SHAH

Case [2025] SASC 47

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal)

POLICE v SHAH

[2025] SASC 47

Judgment of the Honourable Justice Gray (ex tempore)

1 April 2025

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - RECKLESS DRIVING

The respondent pleaded not guilty in the Magistrates Court to one count of driving a motor vehicle at an extreme speed. In the event of an acquittal of that charge, the prosecution argued that the respondent should be found guilty of the alternative charge of driving a vehicle recklessly or at a speed or in a manner which is dangerous. The Magistrate found the respondent not guilty of both charges. 

The appellant appeals against the acquittal of the respondent of the alternative charge on two grounds:

1.That the learned Magistrate erred in acquitting the respondent of the alternative charge, (being an offence against section 46 of the Road Traffic Act 1961) on the basis that the respondent had discharged the onus of establishing proof to the contrary of a fact asserted by the evidentiary certificate marked as Exhibit P1.

2.That the learned Magistrate reasons are inadequate in that the reasons do not adequately explain how the Magistrate reached the conclusion that the evidence presented by the respondent constituted proof to the contrary of a fact asserted by the evidentiary certificate marked as Exhibit P1.

Held, dismissing the appeal:

1.Evidence to the contrary was established in respect of the matters certified in clause 2 of Exhibit P1 (at [45], [48]). It was open to the Magistrate based upon the evidence provided by the defence to make a finding on the balance of probabilities that Exhibit D1 constituted “evidence to the contrary” to the matters certified in clause 3 of Exhibit P1, and that was the correct finding on the evidence (at [57], [58]).

2.The learned Magistrate correctly applied the ratio of Coleman v Police [2024] SASC 30, and the learned Magistrates reasons were adequate (at [70]-[72]).

Criminal Law Consolidation Act 1935 (SA) s 19ADA; Magistrates Act 1983 (SA) s 42; Motor Vehicles Act 1959 (SA) s 140; Road Traffic Act 1961 (SA) s 46, s 47BA, s 47K, s 79B, s 175; Road Traffic (Miscellaneous) Regulations 2014 (SA) r 32, r 33; Road Traffic (Road Rules-Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) r 68, referred to.

Allison v Police [2005] SASC 447; C, GM v Police (No. 2) [2008] SASC 45; Coleman v Police [2024] SASCA 30; Fox v Percy (2003) 214 CLR 118; Police v Baker [2015] SASC 110; Police v Butcher (2014) 119 SASR 509; Police v Cadd (1997) 69 SASR 150; Public Service Board of NSW v Osmond (1986) 159 CLR 656; Robinson Helicopter co Inc v McDermott (2016) 90 ALJR 679; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Rowland v Police (2001) 79 SASR 569; Wainohu v NSW (2011) 243 CLR 181, applied.

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AGLC
Police v SHAH [2025] SASC 47
Case
[2025] SASC 47
Decision Date

CaseChat Overview and Summary

In the case of Police v Shah, the appellant, the Police, appeals against a decision of the Magistrates Court of South Australia. The respondent was charged with reckless driving under section 46 of the Road Traffic Act 1974 (SA) ('RTA'), after being detected by a speed camera travelling at 123 kilometres per hour in a 60 kilometre per hour speed zone. The respondent was acquitted of the offence, and the Police now appeal the decision on two grounds.

The first ground of appeal is that the learned Magistrate erred in acquitting the respondent of the offence on the basis that the respondent had discharged the onus of establishing proof to the contrary of a fact asserted by the evidentiary certificate marked as Exhibit P1. The second ground of appeal is that the learned Magistrate’s reasons are inadequate. The evidentiary certificate in question certified that the requirements of the RTA and the Road Traffic (Miscellaneous) Regulations 2014 (SA) ('RT Regulations') as to the operation and testing of photographic detection devices were complied with in connection with the use of the speed camera during the period in question. The Police submit that there was no evidence of non-compliance with the relevant testing requirements, and that the Disposition Sheets contained a typographical error indicating that the testing could not have been performed on the camera as it was not located at an intersection, marked foot crossing or level crossing.

The appeal was dismissed. The learned Magistrate found that the speed camera was an approved photographic detection device for the purposes of the offence, and that the requirements of the RTA and the RT Regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of the camera. The Court held that the Disposition Sheets and other evidence did not establish on balance of probabilities that the camera had not been tested in accordance with the requirements of regulation 33 of the RT Regulations. The Police had not provided any positive evidence of non-compliance with the testing requirements, and there was no evidence of any specific deficiency or non-compliance in relation to the testing of the camera. The Court held that the learned Magistrate’s reasons were adequate, and that the appeal should be dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant appeals on two grounds. The first is that the learned Magistrate erred in acquitting the respondent of the alternative count,[6] on the basis that the respondent had discharged the onus of establishing proof to the contrary of a fact asserted by the evidentiary certificate marked as Exhibit P1. The second ground of appeal is that the learned Magistrate’s reasons are inadequate.[7] [6] Being the offence against s 46 of the RTA.[7] See Notice of Appeal (FDN 1).The evidence at trial and finding of the learned Magistrate The prosecution case was that the speed of the respondent’s vehicle was detected and determined to be 123 kilometres per hour by a static camera. The prosecution case was that the length of the road in question was at the time of the offence a section of road on which there was a speed limit of 60 kilometres per hour.[8] This camera was known as ‘Camera 285’. It was also part of the prosecution case that Camera 285 was not located at an intersection, marked foot crossing or level crossing, but rather on a section of uninterrupted road.[9] The key issue in dispute in the trial was whether the prosecution had proved that the respondent’s vehicle was travelling at the alleged speed of about 123 kilometres per hour.[8] This allegation was said to have been proved by the provisions of regulation 68(a) of the Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) (‘RT Ancillary Regulations’). Although the respondent contended at trial that there was proof to the contrary of this fact, the learned Magistrate having considered the affidavit and oral evidence of Traffic and Investigations Officer Robert Henty, who was the only witness to be called by the prosecution, held based on that evidence and other documentary evidence that the proof to the contrary had not been established.[9] Appellant’s Submissions at [7]. The prosecution relied on photographs of the respondent’s vehicle taken by Camera 285, identifying the speed of the vehicle at the time along with five evidentiary certificates being Exhibits P1, P2, P2(1), P3 and P3(1). The issue arising on the appeal concerns the factual findings made by the learned Magistrate concerning Exhibit P1. Exhibit P1 was a certificate issued by Inspector Jaimi Burns on 10 September 2024 which certified three matters pursuant to s 79B(10)(b) and (c) of the RTA: 1.That Camera 285, being a “REDFLEXred-speed HDX system manufactured by Redflex Traffic Systems Pty Ltd, linked to and used in conjunction with an induction loop vehicle detector … that formed part of a traffic speed analyser used at Frederick Road, ROYAL PARK (location code 158) between 12.01am and 11.59pm on 17 June 2023 was a photographic detection device as approved under regulation 29 of the Road Traffic (Miscellaneous) Regulations 2014” (‘RT Regulations’). 2.The requirements of the RTA and “the regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of” Camera 285 during the period referred to in clause 1”; and 3.That Camera 285 “was designed and set to operate in accordance with a specified system as set out in regulation 33” of the RT Regulations during the period referred to in clause 1.

Decision

Reasons for decision

GRAY J
I dismiss Ground 2 of the Appeal.Conclusion The appeal is dismissed. I will hear the parties as to costs

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

In relation to clause 1, the learned Magistrate found that Camera 285 was an approved photographic device for the purposes of an offence against s 46.[45] That finding is not challenged on the appeal.[45] Exhibit A1 at 72. Judgment of Magistrate Davis dated 19 December 2024 at [45]. This being the matter certified in clause 1 of Exhibit P1.Clause 2 – operation and testing Clause 2 of Exhibit P1 certified that that the requirements of the RTA and the RT Regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of Camera 285 during the period referred to in clause 1. As was accepted in oral argument by counsel appearing for the appellant, that is a reference to regulation 33. That is clause 2 of Exhibit P1 certified that the photographic detection device, Camera 285, had been tested in accordance with the requirements of regulations. The regulation that is referred to is by implication regulation 33. The question raised by this appeal is a factual one, did the Disposition Sheet and other evidence, establish on balance of probabilities to the contrary of that asserted in clause 2. That is, did the Disposition Sheet (Exhibit D1) and other evidence establish on balance of probabilities that the photographic detection device, Camera 285, had not been tested in accordance with the requirements of regulation 33. The appellant contends that: [46]Clause 2 of Exhibit P1 certified that the requirements of the RTA and the RT Regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of Camera 285 during the period between 12.01am and 11.59pm on 17 June 2023. Proof to the contrary of this fact required some positive evidence which established that a specific requirement relating to the operation and testing of photographic detection devices under a provision of the RTA or the RT Regulations which applied to Camera 285 at the relevant time had not been complied with.[46] Appellant’s Submissions at [25]. The appellant asserts there was simply no evidence of this nature before the learned Magistrate. The appellant also states that there was “no evidence of any specific deficiency or non-compliance in relation to the testing of Camera 285.”[47][47] Ibid at [27]. The appellant relies in support of this submission upon no person who had actually been involved in testing Camera 285 being called to give evidence, that is neither S Craig nor M Gundlach had been called.[48] The appellant states that there was no oral evidence as to what tests were performed, how they were performed and how/why they complied (or did not comply) with any legislative requirement.[49] [48] Ibid.[49] Ibid. The appellant further relies upon the fact that it was not possible for the testing required under regulation 32 to be performed on Camera 285 as this testing required the camera to be located at an intersection, marked foot crossing or level crossing which strongly indicated that there was simply a typographical error contained within the Disposition Sheets.[50] [50] Ibid at [28.1].