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.
Continue reading Police v SHAH
Sign in free to access the full text
- AGLC
- Police v SHAH [2025] SASC 47
- Case
- [2025] SASC 47
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
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].