Police v Young

Case [2012] SASC 210

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v YOUNG

[2012] SASC 210

Judgment of The Honourable Justice Peek

15 November 2012

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

EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - PRESUMPTIONS - AS TO SCIENTIFIC INSTRUMENTS

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION

Appeal against conviction - appellant convicted by Magistrate of exceeding speed limit - offence detected by an Ultralyte 100 LR laser speed gun.

Whether charge supported by the evidence - whether a valid certificate was tendered by police pursuant to s 175(3)(ba), Road Traffic Act 1961 - whether appellant negated the s 175(3)(ba) certificate - whether the prosecution was vitiated by non-compliance by South Australian Police with the National Measurement Act 1960 - whether the offence under Rule 20, Australian Road Rules is limited to offences detected by a photographic device.

Held: Appeal dismissed - s 175(3)(ba), Road Traffic Act 1961 enables the prosecution to certify only 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 certificate - this creates a rebuttable presumption that the specified testing was carried out on a specified day, that the testing established that the device was accurate to the specified extent on the day of testing, and that the device continued to be accurate to that same specified extent on the day following the day of testing - the s 175(3)(ba) certificate was valid in this case despite imprecision in drafting - the appellant provided no evidence which was sufficient to displace the presumption in this case - the appellant was unable to show that the testing of the device failed to establish its accuracy - the appellant was unable to show that the Magistrate erred in finding that his vehicle was travelling at 78 kilometres per hour when detected by the device - the appellant failed to establish that the calibration of the device was unsound - the unchallenged evidence of the police officer using the device as to his expertise was in the circumstances sufficient to prove that the device was being operated correctly by him - the National Measurement Act 1960 does not operate to cover a field or impliedly exclude State legislation and does not govern the certification or operation of traffic speed analysers - the offence under Rule 20, Australian Road Rules is not limited to offences detected by a photographic device - Road Traffic (Miscellaneous) Regulations 1999 referred to.

Australian Road Rules Rule 20; Magistrates Court Act 1991 (SA) s 42; National Measurement Act 1960 (Cth) s 4; National Measurement Regulations 1999 (Cth) Sch 12; Road Traffic Act 1961 (SA) ss 49B, 175(3)(ba); Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 4, referred to.
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Police v Young [2012] SASC 210
Case
[2012] SASC 210
Decision Date

CaseChat Overview and Summary

In the case of Police v Young, the appellant, Alexander Young, was convicted by the Naracoorte Magistrates Court of exceeding the prescribed speed limit, an offence detected using an Ultralyte 100 LR laser speed gun. The primary legal issues in this appeal involved whether the charge was substantiated by the evidence, the validity of the certificate tendered by the police under s 175(3)(ba) of the Road Traffic Act 1961, and whether the prosecution was vitiated by non-compliance with the National Measurement Act 1960. Additionally, the court had to determine if the offence under Rule 20 of the Australian Road Rules was restricted to offences detected by a photographic device.

The Supreme Court of South Australia considered these issues and held that the s 175(3)(ba) certificate was valid despite the imprecision in its drafting. This section creates a rebuttable presumption that the specified testing was conducted on the specified day, that the testing established the device's accuracy to the specified extent on the day of testing, and that the device continued to be accurate to that same extent on the following day. The appellant failed to provide evidence sufficient to displace this presumption. The court found that the appellant could not show that the testing of the device failed to establish its accuracy, nor could he demonstrate that the Magistrate erred in finding that his vehicle was travelling at 78 kilometres per hour when detected by the device. Furthermore, the National Measurement Act 1960 does not govern the certification or operation of traffic speed analysers and does not exclude State legislation in this area. The offence under Rule 20 of the Australian Road Rules is not limited to offences detected by a photographic device.

For these reasons, the appeal was dismissed. The Supreme Court upheld the conviction, confirming that the appellant had failed to discharge the onus of proof to show that the calibration of the device was unsound or that it was not being operated correctly by the police officer.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

However, to endow an averred matter with the status of prima facie evidence is very different to the state of affairs brought about by the present form of s 175(3)(ba), namely that the averment “constitutes, in the absence of proof to the contrary, proof of the facts certified”. I in no way quarrel with Wells J’s statements of principle in Merrall v Samuels[8] applying as they did to s 175(3)(ba) as it was then worded. However, it should be obvious from the structure and content of his Honour’s judgment that he would certainly not have formulated those principles in the same terms if the wording of the section had then been in its present form. Indeed, in a passage not reproduced in Motor Vehicle Law: South Australia, Wells J explicitly said so:[9]I pause here to emphasize that the propositions formulated above relate only to evidentiary aid provisions in the form of s 175; I have given no attention to sections that alter the burden of proof, or use an epithet other than “prima facie” to denote the degree of presumption created.[8] (1971) 2 SASR 378, 382-383.[9] (1971) 2 SASR 378, 383. In view of the use of the word “proof” rather than the word “evidence” in the present formulation of s 175(3)(ba), to say that the section now uses an epithet other than “prima facie” is a substantial understatement. In Police v Bulgin,[10] White J considered a certificate tendered under s 175(3) and stated:[46]It will be apparent from these reasons that I have regarded the phrase “absence of proof to the contrary” appearing in s 79B(10) and s 175(3) as imposing on a defendant a persuasive onus of establishing on the balance of probabilities proof the contrary of the matter in question. That is, I have proceeded on the basis that a defendant must do more than merely adduce or point to some evidence to the contrary in order to displace the operation of the presumption, or to deny the availability of the statutory aid to proof. In doing so, I have followed the approach stated in Evans v Benson. King CJ (with whom Jacobs, Bollen and Olsson JJ agreed) referred to “the established proposition that the words “presumed in the absence of proof to the contrary” have the effect of reversing the legal onus of proof thereby casting a persuasive onus on the defendant to prove, on the balance of probabilities, the contrary of what is presumed.”[Footnotes omitted][10] [2010] SASC 143, [46]. In the subsequent decision of Hollick v Police,[11] Nyland J considered s 140(1), Motor Vehicles Act 1959 which used the same terminology as the present s 175(3)(ba), namely “is, in the absence of proof to the contrary, proof of …”. Her Honour stated:[25]Although the wording of s 140(1) MVA is in different terms to the wording of those provisions of the Road Traffic Act which were the subject of the decisions in Crawford Earthmovers and Evans v Benson in that there is no reference to a “presumption” I consider that the import of the words used in s 140(1) is to create such a presumption. The relevant document is therefore “in absence of proof to the contrary proof of the matters stated therein”. The Magistrate was correct in reaching her decision as to the onus of proof. In this case, the effect of s 140(1) MVA was to reverse the onus of proof in respect of the fact of disqualification, thereby imposing a persuasive onus on the appellant to prove, on the balance of probabilities, the contrary of what was presumed and he failed to discharge that onus.[11] [2012] SASC 11, [25].

Evidence

Evidence Before The Court

I am sorry to say that the passage extracted above is misleading. At the time of the three decisions there referred to, the form of s 175(3)(ba) was quite different to its present form. At that time, it merely provided that, in relation to certain matters or facts alleged in the complaint or stated in a written statement or certificate, such allegation, statement or certification “shall be prima facie evidence of” those matters or facts. However, to endow an averred matter with the status of prima facie evidence is very different to the state of affairs brought about by the present form of s 175(3)(ba), namely that the averment “constitutes, in the absence of proof to the contrary, proof of the facts certified”. I in no way quarrel with Wells J’s statements of principle in Merrall v Samuels[8] applying as they did to s 175(3)(ba) as it was then worded. However, it should be obvious from the structure and content of his Honour’s judgment that he would certainly not have formulated those principles in the same terms if the wording of the section had then been in its present form. Indeed, in a passage not reproduced in Motor Vehicle Law: South Australia, Wells J explicitly said so:[9]I pause here to emphasize that the propositions formulated above relate only to evidentiary aid provisions in the form of s 175; I have given no attention to sections that alter the burden of proof, or use an epithet other than “prima facie” to denote the degree of presumption created.[8] (1971) 2 SASR 378, 382-383.[9] (1971) 2 SASR 378, 383. In view of the use of the word “proof” rather than the word “evidence” in the present formulation of s 175(3)(ba), to say that the section now uses an epithet other than “prima facie” is a substantial understatement. In Police v Bulgin,[10] White J considered a certificate tendered under s 175(3) and stated:[46]It will be apparent from these reasons that I have regarded the phrase “absence of proof to the contrary” appearing in s 79B(10) and s 175(3) as imposing on a defendant a persuasive onus of establishing on the balance of probabilities proof the contrary of the matter in question. That is, I have proceeded on the basis that a defendant must do more than merely adduce or point to some evidence to the contrary in order to displace the operation of the presumption, or to deny the availability of the statutory aid to proof. In doing so, I have followed the approach stated in Evans v Benson. King CJ (with whom Jacobs, Bollen and Olsson JJ agreed) referred to “the established proposition that the words “presumed in the absence of proof to the contrary” have the effect of reversing the legal onus of proof thereby casting a persuasive onus on the defendant to prove, on the balance of probabilities, the contrary of what is presumed.”[Footnotes omitted][10] [2010] SASC 143, [46]. In the subsequent decision of Hollick v Police,[11] Nyland J considered s 140(1), Motor Vehicles Act 1959 which used the same terminology as the present s 175(3)(ba), namely “is, in the absence of proof to the contrary, proof of …”. Her Honour stated:[25]Although the wording of s 140(1) MVA is in different terms to the wording of those provisions of the Road Traffic Act which were the subject of the decisions in Crawford Earthmovers and Evans v Benson in that there is no reference to a “presumption” I consider that the import of the words used in s 140(1) is to create such a presumption. The relevant document is therefore “in absence of proof to the contrary proof of the matters stated therein”. The Magistrate was correct in reaching her decision as to the onus of proof. In this case, the effect of s 140(1) MVA was to reverse the onus of proof in respect of the fact of disqualification, thereby imposing a persuasive onus on the appellant to prove, on the balance of probabilities, the contrary of what was presumed and he failed to discharge that onus.[11] [2012] SASC 11, [25].

Decision

Reasons for decision

PEEK J
For the above reasons, I reject ground of appeal 8.Conclusion None of the grounds of appeal are established. I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

Third, in the case of a traffic speed analyser which, as here, was not mounted in a fixed housing, certification can only apply to the day of testing and the following day. Here, the condition is satisfied since the certificate averred that the testing occurred on the same day as the reading in question.The practical operation of the certificate procedure As appears from documents tendered by the appellant in the present case (and received in other cases), the certificate that is tendered in court is the detached lower quarter of a larger pre-printed form. The following detached certificate was received in the present case as exhibit P2:PD 477CERTIFICATE OF ACCURACY OF TRAFFIC SPEED ANALYSERUltralyte 100LR Laser Speed GunPursuant to Section 175(3)(ba) of the Road Traffic Act 1961I Trevor John Tilley certify that the Traffic Speed Analyser known as (Officer of Police)Ultralyte 100LR Laser Speed Gun Serial Number: UXO10202was tested before use on 16 / 7 / 2008 and after use on 16 / 7 /2008 and was accurate to within Australian Standard 4691.1 - 2003 namely + or – 2 km/h.Signed (Trevor John Tilley) Supt 3337/8 on 30 / 11 / 10 (Signature of Officer of Police) (Rank) (ID) (Date)Revised: 23/08/2010 It is submitted in effect by the appellant that although such a certificate may appear to carry the cachet and authority of a document signed and vouched for by a very senior officer, in reality it is only the junior member of the police force who had carried out the speed testing (and who also is the main prosecution witness) who prepares the certificate and causes it to be signed; it is unlikely that a busy senior officer will do more than check that the appropriate boxes have been ticked and ensure that the appropriate further details have been inserted before signing the proffered document. There is something in such submissions. The effect of the internal SAPOL system for the production of a certificate (and the procuration of the signature of an officer of the required senior rank) is to require the Constable who carried out the speed detection duties to fill out a complete form (including the details of testing in the top three quarter section) for use in a pending trial and forward the whole form for the signature of an officer of the required rank. The senior officer then signs in the designated places on both the top and bottom portions. The bottom quarter section is then detached to become the s 175(3)(ba) certificate at trial and the top three quarter section remains on the prosecution file. The detached top three quarter section of the form originally connected to exhibit P2 above was not amongst the exhibits tendered by the appellant at trial. What he did tender was the whole of a form (including a draft certificate) previously completed by SAPOL which was not the one tendered at trial by the prosecution but had obviously been disclosed to the appellant prior to trial. It was received as part of exhibit D6 and appeared as follows:PD 477REQUEST FOR A CERTIFICATE OF ACCURACY OF TRAFFIC SPEED ANALYSER LTI ULTRALYTE 100LR LASERPursuant to Section 175(3)(ba) of the Road Traffic Act 1962Reporting Member to CompleteI declare that: Yes No1. The information is recorded on the correct forms ý ¨2. All seals were in good order on the laser ý ¨3. The self test was conducted correctly ý ¨4. The display test was conducted correctly ý ¨5. The scope alignment test was conducted correctly ý ¨6 All checks and tests required completed: Range test before use ý ¨Range test after use ý ¨7. The calibration certificate for LTI Ultralyte 100LR LaserSerial Number: UX010802 dated 10/12/2008 produced ý ¨8. The details as stated to the Officer of Police below are correct ý ¨LTI ULTRALYTE 100LR LASER Serial Number: UX010802was range tested at the start of shift on 16/7/2008 at 0815 hoursANDwas range tested at the end of shift on 16/7/2008 at 1600 hoursA scope alignment test was conducted 16/7/2008 at 0815 hoursSigned (Constable Hand) S/C 8384/7 on 8/3/2009(Signature of Reporting Member) (Rank) (ID) (Date)I issued the attached certificate on the basis of this information.Signed (Trevor John Tilley) Supt 3337/8 on 14/4/2009(Signature of Officer of Police) (Rank) (ID) (Date)Police v Alexander YOUNG Reference Number: D9005006ASet for Hearing: 11/5/2009 Court: Naracoorte Magistrates CourtOther Comments (either Reporting Member or Officer of Police may provide comment – initial at end)______________________________________________________________________________________________________________________________________________Detach on dotted line to present certificate to Court………………………………………………………………………………………………………..PD 477CERTIFICATE OF ACCURACY OF TRAFFIC SPEED ANALYSERUltralyte 100LR Laser Pursuant to Section 175(3)(ba) of the Road Traffic Act 1961I Trevor John Tilley certify that the Traffic Speed Analyser known as (Officer of Police)LTI Ultralyte 100LR Laser Serial Number: UXO10202was tested before use on 16 / 7 / 2008 at or near the commencement of use and on 16 / 7 /2008 at or near the completion of use and was accurate to within manufacturer’s specifications namely + or – 2 km/h.Signed (Trevor John Tilley) Supt 3337/8 on 14 / 4 / 09 (Signature of Officer of Police) (Rank) (ID) (Date)Revised: 12/01/2009