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 66Magistrates 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 purposes of this appeal it is not necessary to go into the details of the speed and the driving itself. Constable Roberts gave evidence that he performed accuracy tests on that device before he commenced duty that day and a document recording the results of those tests was admitted as an exhibit (P4 at trial). Relevantly, the only information on P4 from which the device tested could be identified was a note that the serial number of the device was “UX9901”.
The prosecution also sought to tender a certificate of accuracy, pursuant to s 175(3)(ba) of the Road Traffic Act 1961 (RTA), which it was said related to the traffic speed analyser used by Constable Roberts. However, at trial the respondent objected to the tender of that certificate and it was marked for identification (MFI P2 at trial). On that certificate there was a description of the make of the laser device referred to, namely “Laser Technology Inc. LTI 20/20 TruSpeed Laser”. Also a serial number was given, namely UX009901.
In short, the Magistrate found that there was no case to answer because there was no evidence that the instrument used by Constable Roberts was an approved traffic speed analyser. The Magistrate, referring to the judgment of Peek J in Police v Young,[1] held that without the introduction in evidence of the appropriate South Australian Government Gazette certifying that the device used was an approved device, that aspect of the evidence had not been proved. Therefore, the Magistrate held that without more the prosecution was not entitled to have the use of s 175(3)(ba) of the RTA.
[1] (2012) 114 SASR 567.
On appeal it has been agreed that the Magistrate erred in her finding that it was necessary for there to be a case to answer to produce an appropriate copy of the Government Gazette. It is agreed that proof can be provided by reference to s 35 of the Evidence Act 1929 which provides that the Magistrate can take judicial notice of a legislative instrument. It is agreed that the Road Traffic (Miscellaneous) Regulations 1999 are such a legislative instrument. In particular, section 13B of those regulations contains a list of approved traffic speed analysers, including: “Laser Technology Inc. LTI 20/20 TruSpeed Laser”.[2]
[2] Road Traffic (Miscellaneous) Regulations 1999, s 13B (da).
Nevertheless, the respondent argues that the certificate MFI P2 was not tenderable because there was no evidence that it referred to the actual instrument used by Constable Roberts. Never at any stage in his evidence does he describe the traffic speed analyser he used in terms of the regulation set out above. Rather, he refers in his evidence to a ‘LIDAR’, a ‘laser’ and a ‘mobile radar’. In P4 which was tendered, the field test results of the instrument Constable Roberts used are set out. However, as stated earlier, the device tested is identifiable only by reference to the serial number “UX9901”. The appellant argues in this Court that, by inference, that number was referring to the serial number set out in MFI P2 and, further, that by virtue of s 175(3)(ba) of the RTA[3] that would be evidence of the facts certified in that document, namely that the instrument referred to in MFI P2 and P4, and which was used by Constable Roberts, was a Laser Technology Inc. LTI 20/20 TruSpeed Laser.
[3]I set out section 175(3)(ba) in full:
A document produced by the prosecution and purporting to be signed by the Commissioner of Police, or by any other police officer 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 27 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.
I reject the argument. There was no evidence led concerning the uniqueness of the serial numbers and the relevance of the similarity of the numbers contained in MFI P2 and P4. There was no evidence led giving an explanation for such similarity – for example, a shorthand way of reproducing the number in the Constable’s notes. Accordingly, even allowing for the tender of MFI P2, there was no evidence before the Magistrate to establish that the instrument actually tested and used by Constable Roberts was an approved traffic speed analyser. Such evidence could easily have been provided by the police officer giving a full and accurate description of the speed analyser he tested and used, including the make of the device and its unique serial number. That was not done in this case. Instead, the prosecution required the Magistrate, and now this Court on appeal, to find that an approved traffic speed analyser was used by drawing an inference based upon imperfect information contained in two exhibits, one of which was objected to and marked for identification. That is most unsatisfactory. In cases where the prosecution is aided by a plethora of legislative advantages to prove their case, accuracy and care in the use of such aids must be demanded by the Courts.[4]
[4] See also Police v Young (2012) 114 SASR 567 per Peek J at [27] – [31].
I find that on the evidence before her, the Magistrate was correct in determining that the defence had no case to answer and, therefore, was correct in dismissing the case at the conclusion of the prosecution case.
I dismiss the appeal.
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