Police v WEBBER - [2014] SASC 66

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v WEBBER
[2014] SASC 66
Judgment of The Honourable Justice David
23 May 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
Prosecution appeal against a decision of a Magistrate to dismiss charges of exceeding speed limit and breach of provisional licence – Magistrate dismissed the charges after finding that there was no case to answer.
Whether Magistrate erred in requiring the prosecution to tender a relevant extract from the Government Gazette to prove device used to detect the defendant’s speed was an approved traffic speed analyser – whether Magistrate entitled to take judicial notice of traffic speed analysers approved by regulation.
Held: The Magistrate erred in requiring the prosecutor to tender a relevant extract from the Government Gazette – in circumstances where there is sufficient evidence to prove the make and model of the traffic speed analyser used to detect the defendant’s speed, the Magistrate is required to take judicial notice as to whether that traffic speed analyser is ‘approved’ for the purposes of the Road Traffic Act 1961.
Whether prosecution had presented sufficient evidence to establish the make and model of the traffic speed analyser used to detect the defendant’s speed, such that Magistrate could take judicial notice of its status for the purposes of s 175(3)(ba) of the Road Traffic Act 1961.
Held: Appeal dismissed – even allowing for the admission of all documents tendered by the prosecution, there was insufficient evidence before the Magistrate to prove the make and model of the traffic speed analyser used to detect the defendant’s speed – in cases where the prosecution is aided by a legislative advantage, such as s 175(3)(ba) of the Road Traffic Act 1961, accuracy and care in the use of such aids must be demanded by the Courts.
Road Traffic Act 1961 s 175(3); Road Traffic (Miscellaneous) Regulations 1999 s 13B; Evidence Act 1929 s 35, referred to.
Police v Young (2012) 114 SASR 567, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"specified traffic speed analyser"

POLICE v WEBBER
[2014] SASC 66
Magistrates Appeal

DAVID J: This is a prosecution appeal against a decision by a Magistrate dismissing a charge of driving in excess of the speed limit and breaching a provisional licence brought against the respondent. The Magistrate dismissed the charge at the end of the prosecution case, finding that there was no case to answer.
The respondent was charged on 1 October 2012. The prosecution alleged that she drove at a speed of 80 kilometres per hour in a 60 kilometre per hour zone on Bridge Road, Pooraka in the afternoon. The prosecution called one witness at trial, a Constable Roberts, who gave evidence that he was operating a LIDAR device, which is a traffic speed analyser, and that indicated to him that the respondent was speeding. For the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v WEBBER

Details

AGLC: Police v WEBBER [2014] SASC 66
Case: [2014] SASC 66
Decision Date

CaseChat Overview and Summary

The Supreme Court of South Australia considered an appeal by the police against a decision by a Magistrate to dismiss charges of exceeding the speed limit and breaching a provisional licence brought against the respondent. The Magistrate had dismissed the charges after finding that there was no case to answer. The key legal issues were whether the Magistrate erred in requiring the prosecution to tender a relevant extract from the Government Gazette to prove the device used to detect the defendant's speed was an approved traffic speed analyser, and whether the Magistrate was entitled to take judicial notice of traffic speed analysers approved by regulation. The Court held that the Magistrate erred in requiring the prosecutor to tender a relevant extract from the Government Gazette. Where there is sufficient evidence to prove the make and model of the traffic speed analyser used to detect the defendant’s speed, the Magistrate is required to take judicial notice as to whether that traffic speed analyser is ‘approved’ for the purposes of the Road Traffic Act 1961. The Court also found that there was insufficient evidence before the Magistrate to prove the make and model of the traffic speed analyser used to detect the defendant’s speed. Even allowing for the admission of all documents tendered by the prosecution, there was insufficient evidence to establish that the instrument actually tested and used by the Constable was an approved traffic speed analyser. The appeal was dismissed.

Orders