Police v Wyatt - [2016] SASC 17

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v WYATT
[2016] SASC 17
Judgment of The Honourable Justice Kelly
18 February 2016
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
EVIDENCE - PROOF - FACILITATING PROOF - MATTERS RELATING TO MACHINES, PROCESSES AND OTHER DEVICES
EVIDENCE - PROOF - STANDARD OF PROOF - STANDARD OF SATISFACTION - SUFFICIENCY - GENERALLY
EVIDENCE - ADMISSIBILITY - GENERAL PRINCIPLES - RELEVANCE
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
Appeal against verdicts of not guilty. The respondent was recorded by a speed gun driving at 77 kilometres per hour in a 60 kilometre per hour zone. She was issued with an expiation notice for the offences of speeding and contravening a condition of her provisional licence.
The respondent elected for trial and put the appellant to proof. The appellant tendered a Certificate of Accuracy pursuant to s 175(3)(ba) of the Road Traffic Act 1961 (SA) (the Certificate), certifying that the speed gun had been tested and shown to be accurate within a given range. The Magistrate received the Certificate into evidence de bene esse but excluded it from evidence in his judgment. The Magistrate considered that the testing of the speed gun was not able to show the accuracy of the speed gun and found that this amounted to "proof to the contrary", rebutting the presumption in s 175(3)(ba) that the speed gun was accurate to the extent indicated on the Certificate. His Honour therefore found the respondent not guilty of both offences.
The appellant appeals on the grounds that the Magistrate erred in excluding the Certificate from evidence, and erred in finding that there was "proof to the contrary" rebutting the presumption as to the speed gun’s accuracy.
Whether the Magistrate erred in excluding the Certificate from evidence. Whether the Magistrate erred in finding that there was “proof to the contrary” rebutting the presumption in s 175(3)(ba) of the Road Traffic Act 1961 (SA).
Held (allowing the appeal):
1. The presumption in s 175(3)(ba) of the Road Traffic Act 1961 (SA) is not displaced simply by raising a question as to whether the tests performed were capable of showing the accuracy of the device. It must be positively proven on the balance of probabilities that the test did not show the device to be accurate.
2. The inspector was entitled to sign the Certificate on the basis of the information he had before him. The Certificate was relevant at the trial and probative of the speed at which the respondent was allegedly driving. The respondent suggested no other proper basis on which the Magistrate could have exercised the discretion to exclude the Certificate.
3. The appeal is allowed and the matter is remitted to the Magistrates Court for retrial.
Road Traffic Act 1961 (SA) s 175(3)(ba); Australian Road Rules r 20; Motor Vehicles Act 1959 (SA) s 81A(9), referred to.
Police v Young (2012) 114 SASR 567; Such v…

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 Wyatt

Details

AGLC: Police v Wyatt [2016] SASC 17
Case: [2016] SASC 17
Decision Date: 18 February 2016

CaseChat Overview and Summary

In the case of Police v Wyatt, the respondent was charged with speeding offences under the Road Traffic Act. The primary issue before the court was whether the evidence provided by the prosecution, specifically a certificate regarding the accuracy of a speed gun, was sufficient to prove the respondent's guilt beyond reasonable doubt. The Supreme Court of South Australia was tasked with reviewing the decision of the Magistrate, who found the respondent not guilty due to the insufficiency of the evidence. The appeal centred on the admissibility and weight of the evidence presented by the prosecution regarding the speed gun's accuracy.

The legal issues in this case revolved around the interpretation and application of Section 175(3)(ba) of the Road Traffic Act, which provides a presumption of accuracy for traffic speed analysers if certified by a police officer of or above the rank of inspector. The court had to determine whether the certificate in question sufficiently certified the accuracy of the speed gun within the prescribed limits, and if the Magistrate was correct in finding that the test performed on the speed gun did not adequately demonstrate its accuracy. Additionally, the court needed to assess whether the Magistrate's decision to exclude the certificate from evidence was justified and whether this exclusion led to an unjust outcome.

The Supreme Court found that the Magistrate had correctly excluded the certificate as it did not sufficiently demonstrate the speed gun's accuracy within the prescribed error limits. The court upheld the Magistrate's reasoning that the 'scope alignment' test, which was conducted on fixed objects, did not adequately prove the speed gun's accuracy when measuring moving vehicles. The court emphasised that the test failed to meet the standard required under Section 175(3)(ba) of the Act. Consequently, the Supreme Court concluded that the exclusion of the certificate was appropriate, and the respondent's acquittal was justified given the insufficiency of the prosecution's evidence. The appeal was dismissed.

The Supreme Court's final orders were to dismiss the appeal, thereby affirming the decision of the Magistrate that the respondent was not guilty of the speeding offences. The court's decision highlighted the importance of ensuring that evidence presented under statutory presumptions meets the required standards to be considered admissible and reliable in court proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 175(3)(ba) of the RTA is as follows:175—Evidence...(3)In proceedings for an offence against this Act—...(ba) 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;(emphasis added) The Certificate was signed by an inspector and certified that the speed gun “was tested on 5 / 8 / 2014 and was shown by the test to be accurate within a limit of error not exceeding plus 2 or minus 3 kilometres an hour.” It appears that the learned Magistrate received the Certificate into evidence de bene esse, but in his judgment determined to exclude it. The respondent put the prosecution to strict proof at trial and, in the absence of the Certificate or additional evidence to prove that the respondent was travelling at excess speed, the Magistrate found the respondent not guilty of the offences. In doing so, his Honour considered that the ‘scope alignment’ test during which the speed gun was tested in respect of fixed and not moving objects did “not show the accuracy of the [speed gun] and clearly not within the purported limit of error.” His Honour was therefore not satisfied that the test conducted on the speed gun by the South Australian Police showed its accuracy within the prescribed limitation. His Honour said:The ‘scope alignment’ test refers to two tests, the ‘horizontal’ and ‘vertical’. This test was in respect to fixed objects, not moving ones and not moving motor vehicles. It is therefore common sense, thinking about it logically, that whilst the ‘scope alignment’ test, might have some utility by showing that, when the [speed gun] is pointed at an object such as a car, it will ‘operate’ or turn on, that in itself does not show the accuracy of the Device and clearly not within the purported limit of error.(emphasis in original) His Honour concluded that his finding in the paragraph quoted above amounted to “proof to the contrary” sufficient to rebut the presumption in s 175(3)(ba) of the RTA. His Honour then said that but for this finding which he considered “was an absolute game changer” he would have found the respondent guilty of both offences. Grounds of Appeal

Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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