Police v Tereschenko No. Scgrg-00-385

POLICE v TERESCHENKO
[2000] SASC 300

Magistrates Appeal

1................ DUGGAN J....... The respondent was charged with three traffic offences. The complaint alleged that on 17 October 1998 at Golden Grove the respondent:

1...... Drove a vehicle on a road, namely, the Golden Way at a speed which was dangerous to the public, contrary to s 46 of the Road Traffic Act 1961.

Drove a vehicle, namely, a motor sedan on a road, namely, the Golden Way without due care, contrary to s 45 of the Road Traffic Act 1961.
Being the driver of a vehicle, namely, a motor sedan on a road, namely, the Golden Way diverged the said vehicle to the left without giving a signal in accordance with the Road Traffic Regulations, 1974, contrary to s 74 of the Road Traffic Act 1961.
The respondent pleaded not guilty to the first and second charges and guilty to the third. At the conclusion of the prosecution case in respect to the first two charges the learned magistrate upheld a submission of no case to answer on the charge of driving at a speed dangerous to the public, but found a case to answer on the charge of driving without due care. The charge of driving without due care was dismissed after the respondent gave evidence. The prosecution has appealed against the finding of no case to answer and the dismissal of the charge of driving at a speed dangerous to the public.
As is evident from the complaint, the charges arose out of an incident which took place at Golden Grove on 17 October 1998. Constables Bussenschutt and Fotoulis were patrolling the area in a police car when, at approximately 9.40 pm, they observed a dark coloured hatchback vehicle being driven through the junction of the Golden Way and the road on which they were travelling, Grenfell Road. It is not in dispute that the vehicle was being driven by the respondent. According to the police officers, it was travelling at a fast rate of speed.
The police officers turned right onto the Golden Way and followed the respondent’s vehicle. When they were approximately 100 metres behind the vehicle they attempted to maintain a constant speed and distance from it. Constable Bussenschutt who was driving the police vehicle gave evidence that although he was travelling at a speed of 120 kilometres per hour behind the vehicle, he was unable to keep up with it over a distance of 300 metres. He said that he determined the speed of the police vehicle by looking at an analogue speedometer in the vehicle.
As the respondent’s vehicle approached the intersection of the Grove Way and the Golden Way the police officers saw a red Ford station wagon attempting to do a u-turn at an intersection approximately 50 metres south of the Grove Way and Golden Way intersection. According to Constable Bussenschutt, this manoeuvre forced the respondent’s vehicle to veer from the right lane into the left lane to avoid a collision.
The respondent was apprehended when her vehicle was stopped at the traffic lights at the intersection of the Grove Way and the Golden Way. The respondent was then questioned by Constable Bussenschutt who gave the following evidence of the interview:
“Constable Bussenschutt:... It is an offence to exceed the speed limit. I just followed you along the Golden Way doing no less than 120 kilometres per hour in a 70 kilometre an hour zone. What is your reason for doing this?
The respondent: I was on my mobile phone. I didn’t realise.
Constable Bussenschutt:..... I then asked a question relating to her particulars, and I obtained her particulars. I then said ‘Lina, do you think it was safe to be driving at those speeds whilst talking on your phone’?
The respondent: Obviously not. I really wasn’t aware I was going that fast. I just wanted to get home.
Constable Bussenschutt:..... What is your reason for failing to indicate?
The respondent: I was avoiding the car in front of me.
Constable Bussenschutt:..... Are you aware it is an offence to drive without due care and you failed to indicate?
The respondent: Yes.
Constable Bussenschutt:..... You’ll be reported for driving without due care and failing to indicate. Do you understand?
The respondent: Yes.
Constable Bussenschutt:..... Do you wish to read these notes?
The respondent: I watched you read them. I’m happy to sign them.
Constable Bussenschutt:..... Do you wish to sign these notes?
The respondent: Yes, I’ll sign them.”
Constable Fotoulis stated in evidence that he was sitting in the front left passenger seat of the police vehicle at the relevant time. He said he observed the respondent’s vehicle as it travelled at a fast rate of speed while the police car was still travelling along Grenfell Road. He said that he determined the speed of the police vehicle by looking at the analogue speedometer as well as a digital speedometer which was installed in the police vehicle.
Both police officers gave evidence of the built-up character of the area, the presence of shops and pedestrians and other vehicles in the vicinity at the time of the pursuit.
At the hearing before the learned magistrate the prosecution tendered a document entitled “Certificate of Accuracy of Speedometer”. It is signed by a commissioned officer of police and is in the following terms:
“I certify that in accordance with Section 175(3)(b) of the Road Traffic Act, 1961 as amended, the speedometer attached to the Holden sedan fleet number 220, registered number WQH773, was tested on 19.10.98 and when the speedometer on the vehicle was registering 60 km/h, and 100 km/h respectively, the actual speed of the vehicle was 61 km/h, and 101 km/h respectively.”
Section 175(3)(b) of the Road Traffic Act provides as follows:
“In proceedings for an offence against this Act -
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 stopwatch or speedometer 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 relevant instrument was accurate to that extent on the day of the test and -
(i).... in the case of a stopwatch - throughout the 14 day period following and the 14 day period preceding the day of the test; or
(ii)in the case of a speedometer - throughout the 3 month period following and the 3 month period preceding the day of the test,
for the purpose of measuring the speed of any motor vehicle, whether or not the speed measured differed from the speed in relation to which the stopwatch or speedometer was tested or the circumstances of the measurement differed in any other respect from the circumstances of the test.”
The prosecution also called Mr Silvani, a supervisor for the Royal Automobile Association. He said that on 19 October 1998 he conducted a speedometer accuracy test on the police vehicle. He explained that the vehicle was placed on rollers attached to the testing equipment and taken up to the point where the speed on the analogue speedometer indicated 60 kilometres per hour. He repeated the same test with the vehicle speedometer showing 100 kilometres per hour. The test indicated that at a speed indicated by the vehicle speedometer as 60 kilometres per hour the vehicle was travelling at 60.9 kilometres per hour and at an indicated speed of 100 kilometres per hour the actual speed was 100.6 kilometres per hour. He then rounded up these figures to 61 and 101 kilometres per hour respectively for the purposes of the record book which was kept for the purpose. It was on the basis of this information that the certificate was tendered to the court.
Mr Silvani said in evidence that the testing apparatus is itself tested every year and a calibration certificate issued in the event that it is accurate.
The learned magistrate gave the following reasons for finding no case to answer on the first count:
“I have a submission of no case to answer in respect to Count 1, an allegation for that on the 17th October 1998 at Wynn Vale, South Australia, the defendant drove a vehicle on The Golden Way at a speed which was dangerous to the public.
Evidence was called by prosecution from two police officers who carried out what is commonly referred to as a ‘follow and time’. In addition, prosecution have submitted a Certificate of Accuracy of a speedometer, P1.
In respect to each of the police officers, their observations were that they had observed the speedometer of the police vehicle. In the case of officer Bussenschutt, he had viewed the analogue speedometer, that is the needle, and observed a speed of 120 kilometres an hour indicated. In the case of officer Fotoulis, he had observed both the analogue and the digital display and he too viewed a speed indicated of up to 130 kilometres an hour.
In addition Mr Silvani has been called. His employment is with the RAA but he has the specific responsibility of testing police vehicles speed. His evidence is that on the 19th October 1998, he tested the subject police vehicle, a Holden sedan, fleet number 220, registration number WQH 773. Interestingly, having given evidence of his testing procedure, the evidence of Silvani is that the speeds actually recorded vary yet again from the speeds referred to on the Certificate of Accuracy (P1).
The submission of no case to answer is premised upon the fact that prosecution have called evidence which amounts to evidence to the contrary of the presumed accuracy of the relevant speedometer. More particularly Mr Twiggs has submitted that in terms of section 175(3)(b) of the Road Traffic Act, there is before me ‘proof to the contrary’, that is, proof to the contrary of the presumed accuracy of P1; firstly because of the variations that I have just mentioned and secondly because there is no evidence before me in any event of the accuracy of the testing device, and thirdly because of a concession made by Mr Silvani, that on the face of it his tests indicated inaccuracy.
I accept that submission.
I have been referred to a number of Authorities by the prosecutor. In particular, the decision of White J in Fuss v Smith (1987) 6 MVR at p 136 (see also discussion in Bollen Motor Vehicle Law paragraph 2380). Also I have been referred to a judgment of White J in Crowther v Coppins reported 113 LSJS at p 427.
Nevertheless, in the case before me, given Silvani’s evidence, I accept that there is contradictory evidence which falls clearly within the parameters of ‘proof to the contrary’. In that state of uncertainty, I determine that there is no case to answer in respect of the speed dangerous charge. There is no other accurate or reliable evidence of the speed of Ms Tereschenko’s vehicle. I should indicate that the prosecution evidence otherwise is evidence of an impression of speed as I might term it, on the part of Bussenschutt, and on observations made by each of those officers. There is no other evidence of speed apart from purported reliance on observation of the speedometer.
I do find that there is a case to answer in respect of Count 2, the due care.”
It would appear that the charge of driving without due care was based on the incident when the respondent swerved into the left lane to avoid a collision with the vehicle which was doing a u-turn in front of her. The learned magistrate dismissed the charge of driving without due care on the basis that the driver of the other vehicle made an erratic and unexpected manoeuvre which required the respondent to take evasive action. An appeal against the dismissal of that charge was abandoned at the hearing of this appeal.
Although the point was not raised at the hearing before the learned magistrate, it was argued on appeal that the appellant was prevented from relying on the presumption created by s 175(3)(b) by the calling of Mr Silvani and the evidence given by him. Reliance was placed on Lamshed v Rigney (1987) 48 SASR 320. In that case von Doussa J referred to the principle that a prosecution cannot subsequently rely on a statutory presumption if the conduct of its case was such as to indicate that it had abandoned reliance upon the statutory presumption and decided to call evidence to establish the primary facts.
The principle referred to by von Doussa J is an example of the general rule that parties are bound by the manner in which they conduct their case. In Cato v Costello; ex parte Costello [1939] QSR 318, s 149 of the Health Act 1937 (Qld) placed the burden of proof that any drug was not supplied or delivered or intended for sale in every case upon the defendant. Blair CJ and Macrossan SPJ said (p 322):
“In the course of this prosecution before the Police Magistrate, the prosecutor apparently deliberately refrained from relying on s 149 of the Health Act 1937, and was so seized with the conclusiveness of his case as to set about positively proving each essential in the complaint against the defendant. Before us the respondent relies most strenuously upon s 149, but does not deny that the defendant was at no time called upon, expressly or by implication, to discharge a burden of proof, and he may well have been lulled into a sense of false security by the way in which the prosecution was conducted. There is no better settled rule of practice than that parties are bound by the way they conduct themselves and their cases at the original hearing.”
This case was referred to by Bray CJ in Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 116 a case dealing with s 144 of the Road Traffic Act. Section 144(2) provided:
“In any proceedings for an offence under this section, an allegation in a complaint that a person named therein was the owner, person in charge or driver of a vehicle therein referred to on a date therein specified shall be deemed to be proved in the absence of proof to the contrary.”
It appeared from the proceedings in the court below that s 144(2) was not relied upon at the trial. Bray CJ was of the view that what happened in Cato’s case had happened in the case before the court. It was not open to the prosecutor to rely upon the provision because the case was fought in the lower court without reliance on it.
However the evidence of Mr Silvani does not appear to have been intended by the prosecution as a substitute for the presumption created by s 175(3)(b). Indeed it was called for the purpose of filling a perceived gap which might have prevented reliance on the presumption. Mr Twiggs, for the respondent, outlined on the hearing of the appeal the steps which led the appellant to call Mr Silvani. He said that there was some confusion during the prosecution case following the revelation that there were two speedometers in the police car. It was not clear which speedometer had been tested. Mr Silvani was called to say that it was the analogue speedometer which he had tested. Constable Bussenschutt was also recalled to say that he obtained the speed reading from the analogue speedometer.
It is true that Mr Silvani gave other evidence. He explained how he tested the vehicle and he stated how readings were recorded. It was then that the learned magistrate questioned the witness extensively on what his Honour perceived to be an error in the recording of the results. This questioning led to further examination by the prosecutor on the points raised by the magistrate. However, I do not think it can be inferred from the questioning that the prosecution intended to abandon their reliance on the presumption created by the Act.
The learned magistrate certainly did not view the calling of the evidence as an abandonment of reliance on the presumption. It appears from the magistrate’s ruling set out above that Mr Twiggs submitted that the prosecution could not rely on the presumption because Mr Silvani’s evidence amounted to “proof to the contrary” of what was contained in the certificate. The magistrate said he accepted that submission. It is clear from the proceedings that at the end of the prosecution case the prosecution were attempting to prove their case by reliance on the presumption. The magistrate’s ruling of no case to answer was based on his view that Mr Silvani’s evidence established facts which were contrary to the certificate.
The question remains whether the learned magistrate was correct in deciding that Mr Silvani’s evidence was contrary to what was stated in the certificate. The section itself acknowledges that the presumption which would otherwise be available cannot be relied upon if there is “proof to the contrary”. This proviso in the section has the same effect as the common law principle which was explained by the High Court in Gabriel v Ah Mook (1924) 34 CLR 591 at 595. Their Honours said:
“What the prior cases referred to establish is that, where the prosecution elects to place before the Court what it represents to be, or what appear to be, all the facts relating to an averment, then it is bound by the proper conclusion to be drawn from those facts. If the proper conclusion is adverse to the averment, it is because the proof is to the contrary. But if it appears that merely some of the relevant facts are proved and that the prosecution is unable for some reason to complete them so as to enable the tribunal to come to a conclusion one way or the other as to the averment, then the cases referred to do not apply.”
In my view, it cannot be said that all the relevant facts relating to the averment in the present case were put before the court as proof of the speed of the respondent’s vehicle. Aspects of the testing procedure were explained for the purpose to which I have referred. But, in any event, I do not accept that Mr Silvani’s evidence amounted to proof to the contrary of what was stated in the certificate. He said the basis for this finding was that there was no evidence of the accuracy of the testing device; that there was a concession made by Mr Silvani that on the fact of the certificate his tests indicated inaccuracy; and that there were variations between the speed actually recorded and the speeds referred to in the certificate.
In my view, lack of evidence as to the accuracy of the testing advice was an irrelevant consideration. The issue was whether the prosecution was entitled to rely on the presumption created by s 175(3)(b). The purpose of the presumption is to render unnecessary proof of such matters as the accuracy of the testing equipment.
The inaccuracy and variations referred to by the magistrate are not evident from his ruling and it is necessary to refer to answers given by Mr Silvani to questions from the magistrate in order to attempt to identify these aspects.
The test indicated that when the speedometer of the vehicle showed a speed of 60 kilometres per hour, the vehicle was in fact travelling at 60.9 kilometres per hour and at an indicated speed of 100 kilometres per hour, the vehicle was travelling at 100.6 kilometres per hour. For the purposes of the certificate, the actual travelling speeds were rounded up to 61 and 100 kilometres per hour respectively.
In my view neither this consideration, nor any other aspect of Mr Silvani’s evidence, provided proof to the contrary of what was in the certificate. The presumption created by the subsection is concerned with the accuracy of the speedometer. The subsection assumes that there may be a variation between the reading from the speedometer and the speed at which the vehicle is travelling. This is apparent from the reference to the speedometer being “accurate to the extent indicated”. Once the degree of accuracy is ascertained, that fact can be taken into account by the court irrespective of the speed measured in the course of the circumstances relevant to the charges. I do not regard the rounding up of the figures as a matter of significance. As I have said, the purpose of the certificate is to establish the degree of accuracy of the speedometer. The effect of the certificate in this case is that the speedometer can be relied upon as being accurate within one kilometre per hour. In the case of the actual tests, the extent to which it was showing a different reading from the actual speed was .6 of a kilometre per hour on one occasion and .9 of a kilometre per hour on another occasion. There is nothing in the section to suggest that the person conducting the test cannot express the degree of accuracy in whole numbers. In my view it is unrealistic to view the evidence of Mr Silvani as proof to the contrary of what was certified in the document presented to the court.

For these reasons I am of the view that the prosecution was entitled to rely on the certificate. Of course a specific speed need not be established as part of the proof of the offence of driving at a speed dangerous to the public. However I think it would have been appropriate for the learned magistrate to find that the respondent’s vehicle was travelling at approximately 120 kilometres per hour and to take that into account along with the other evidence in deciding whether it had been established beyond reasonable doubt that the respondent was driving at a speed dangerous to the public.
It follows that the appeal must be allowed in relation to counts 1 and 2. The order dismissing the charges in those counts will be set aside.
I will hear the parties as to what further orders I should make.

[2000] SASC 300

4 September 2000