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 Police (2011) 57 MVR 313; Police v Butcher (2014) 119 SASR 509, discussed.
Elliott v Police (2009) 54 MVR 23; Martelli v Police (SA) (2007) 46 MVR 568, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"proof to the contrary"

POLICE v WYATT
[2016] SASC 17
Magistrates Appeal: Criminal
KELLY J.
Introduction

On 5 August 2014 Senior Constable Curyer, a police officer, recorded the respondent driving a motor vehicle at 77 kilometres per hour in a 60 kilometre per hour zone using an Ultralyte 100 LR Laser Speed Gun (the speed gun). The respondent was subsequently issued with an expiation notice for the offences of speeding,[1] and contravening a condition of her provisional licence.[2] The respondent elected to be prosecuted, and was tried on 30 June 2015. She was found not guilty of both counts. The appellant appeals against those verdicts.
[1] Contrary to Rule 20 of the Australian Road Rules.
[2] Contrary to s 81A(9) of the Motor Vehicles Act 1959 (SA).
The Approach at Trial
At trial, the prosecution led evidence from Senior Constable Curyer. He gave evidence regarding the testing and use of the speed gun on 5 August 2014. The prosecution also tendered a “Certificate of Accuracy” (the Certificate) pursuant to s 175(3)(ba) of the Road Traffic Act 1961 (SA) (the RTA).
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
The appellant makes two complaints on appeal. The first is that the learned Magistrate erred in finding that there was “proof to the contrary” rebutting the presumption as to the speed gun’s accuracy in circumstances where it had not been proved on the balance of probabilities that the tests could not show that the speed gun was accurate. The second complaint is that the learned Magistrate erred in excluding the Certificate from evidence.
Proof to the Contrary
It is regrettable that the Magistrate does not appear to have been referred to any of the relevant authorities dealing with the meaning of “proof to the contrary” in the context of s 175(3)(ba) of the RTA. If he had been, I doubt whether his Honour would have reached the same conclusion.
In Police v Young,[3] Peek J considered the presumption in s 175(3)(ba) in some depth. In that case some evidence was tendered which challenged the relevant testing procedure for a laser speed gun. However, no expert evidence was called regarding the meaning and significance of some of the factual matters upon which the appellant sought to rely. In the course of his reasons, his Honour considered a number of possible ways that a defendant could displace the presumption in a certificate pursuant to s 175(3)(ba) and the nature of evidence that might be sufficient to constitute “proof to the contrary”. Among them, his Honour considered at [56] that challenges to the testing process may defeat the presumption if there is sufficient evidence that the specified tests did not take place or, if they did, the tests were incapable of establishing or did not establish the specified level of accuracy.
[3] (2012) 114 SASR 567.
In reasoning to his final conclusion that the Magistrate was correct in the circumstances of that case to conclude that there was insufficient evidence to constitute “proof to the contrary”, Peek J referred to and adopted the reasoning of Vanstone J in Such v Police.[4] In Such, Vanstone J stated:[5]
In respect of the possible alternative argument going to the weight of the certificate, the plain fact is that the suggested inability of the fixed distance test to justify the conclusion reached in the certificate was not the subject of evidence before the magistrate. Indeed, when the police prosecutor raised a question going to the training of Const Thompson and the extent to which that training and the testing conducted by Const Thompson reflected the requirements of police general orders and the Australian Standard dealing with such devices, counsel then acting for the applicant said that it was not necessary to call such evidence. In my opinion, no conclusion can be reached by this court about the suitability of the fixed distance check to assess accuracy of speed measurement, or about the way in which the conclusion has been expressed in the certificate having regard to the use of that test.
[4] (2011) 57 MVR 313.
[5] Such v Police (2011) 57 MVR 313 at [17].
In Police v Butcher,[6] Stanley J considered a submission that the statutory presumption under s 175(3)(ba) of the RTA was displaced because the officer who signed the certificate could not have been satisfied on the basis of the material before him that the traffic speed analyser had been tested as required and, in the absence of evidence proving the accuracy of the traffic speed analyser, the Court should have concluded that the presumption was displaced.
[6] (2014) 119 SASR 509.
His Honour concluded at [65] that the evidentiary burden had not been discharged by the defendant by simply “pointing to the absence of sufficient evidence of the facts certified before the relevant police officer. The operation of s 175(3)(ba) requires the accused person, if he is to discharge the evidentiary burden that the provision has shifted to him, to prove on the balance of probabilities the contrary of the facts certified.”
Secondly, Stanley J concluded that the provision of a document recording the test results of the traffic speed analyser to the officer responsible for signing the Certificate of Accuracy constituted a sufficient basis for certifying that the road traffic analyser had been tested on that date, and shown by the test to be accurate to the extent indicated in the document.[7]
[7] Police v Butcher (2014) 119 SASR 509 at [66].
In my view, the reasoning in those authorities applies here. It is clear that the presumption in s 175(3)(ba) is not displaced simply by raising a question as to the whether the tests performed were capable of showing the accuracy of the speed gun. It must be positively proven on the balance of probabilities that the test did not show the speed gun to be accurate.
The only evidence presented here on that topic came from Senior Constable Curyer who tested the speed gun. No evidence was led as to the scientific basis for the operation of the speed gun or how the tests were conducted. Senior Constable Curyer correctly declined to express an opinion on these matters, stating that he did not possess the relevant expertise.
In these circumstances there was no evidential basis for the Magistrate’s conclusion that “[i]t is therefore common sense” that the tests do “not show the accuracy of the [speed gun] and clearly not within the purported limit of error.”
The exercise of common sense by a Magistrate is, generally speaking, to be encouraged. However, in the circumstances of the requirement for a defendant to rebut the presumption in s 175(3)(ba) of the RTA, an opinion of a Magistrate based on common sense is no substitute for evidence which would be sufficient to amount to “proof to the contrary”.
As I stated earlier, Peek J gave a number of examples of ways in which the presumption could be rebutted by the tendering of appropriate evidence.
The presumption is not displaced simply by raising questions about the testing process in cross-examination. Such a challenge falls short of proving, on the balance of probabilities, that the tests were incapable of showing the accuracy of the device.
I am satisfied that the learned Magistrate erred by confusing a lack of proof in support of the facts contained in the Certificate with “proof to the contrary” within the meaning of s 175(3)(ba) of the RTA.
Admissibility of the Certificate
The appellant’s second complaint is that the learned Magistrate erred in excluding the Certificate from evidence. This complaint can be dealt with quite briefly.
A certificate under s 175(3)(ba) of the RTA might be inadmissible or excluded if it is bad on its face,[8] or if there is some other basis for excluding it in the exercise of a discretion.[9]
[8] As recognised by Peek J in Police v Young (2012) 114 SASR 567 at [35].
[9] For example, Elliott v Police (2009) 54 MVR 23 and Martelli v Police (SA) (2007) 46 MVR 568 both of which were concerned with the re-opening of the prosecution case to tender a certificate – see discussion of these matters by Stanley J in Police v Butcher (2014) 119 SASR 509 at [57]-[60].
The Certificate was plainly relevant at the trial in that it was probative of the speed at which the respondent was allegedly driving.
The document which the respondent tendered at trial entitled “speed detection equipment field test results” indicated that the speed gun was tested as accurate on 5 August 2014. The evidence led at trial was that this document was provided to the signing officer when he signed the Certificate. Consistent with the reasoning of Stanley J in Butcher, I consider that this document constituted a sufficient basis for the inspector to have signed the Certificate. For this reason the respondent’s objections regarding evidence as to the meaning of a “pass” and the limitation of error range must also fail. In my view the inspector was entitled to sign the Certificate on the basis of the information he had before him.
The respondent has suggested no other proper basis on which the Magistrate could have exercised the discretion to exclude the Certificate. I conclude that the appellant has made good his complaint that the Certificate was wrongly excluded.
In light of the Magistrate’s comments that, but for the conclusion he had reached that there was proof to the contrary, he would have found the respondent guilty of both counts, I would have upheld the appeal and simply convicted the respondent of both counts. However, in deference to the submissions made on appeal by respondent counsel, Mr Twiggs, that the respondent seeks to place evidence which is capable of rebutting the presumption before the Court on a retrial, I will remit this matter to the Magistrates Court for a retrial according to law.