Police v Young
[2012] SASC 210
•15 November 2012
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.
Police v Bulgin [2010] SASC 143; Hollick v Police [2012] SASC 11; Such v Police (2011) 57 MVR 313, applied.
Police v Dodd [2004] SASC 91; Llewellyn v Police [2005] SASC 160, not followed.
Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 116; Cazzol v Fuss (1988) 6 MVR 350; Merrall v Samuels (1971) 2 SASR 378; Elliott v Police [2009] SASC 292; R v Hush; Ex parte Devanny (1932) 48 CLR 487, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"shown by the test to be", "was accurate" and "proof to the contrary"
POLICE v YOUNG
[2012] SASC 210
PEEK J. Appeal against conviction pursuant to s 42, Magistrates Court Act 1991.
Introduction
Mr Young (hereafter referred to as “the appellant”) was charged with driving a motor vehicle at a speed in excess of an applicable speed limit of 60 kilometres per hour, it being alleged that he drove at a speed of “about 78 kph”. The prosecution case was that a speed reading of 78 kilometres per hour was obtained through the use of an Ultralyte 100 LR laser speed gun.
The appellant pleaded not guilty at trial but was convicted. The Magistrate imposed a fine of $100.00 plus prosecution costs and the victims of crime levy. The appeal is against conviction only.
The complaint
The relevant portion of the complaint is as follows:
On the 16th day of JULY, 2008 at NARACOORTE in the said State drove a vehicle namely a HOLDEN SEDAN (SA) XET-017 on a length of road namely GORDON STREET, to which a speed limit sign applied to you pursuant to rule 21(1) of the Australian Road Rules, over the speed limit of 60 kilometres per hour as indicated on the speed limit sign which was on the said road.
Rule 20 of the Australian Road Rules.
It is further alleged you were driving at a speed of about 78 kilometres per hour.
This is a summary offence.
Basic undisputed findings of the Magistrate
The Magistrate made the following basic findings which were not disputed at trial or on appeal:
On 16 July 2008 at approximately 3.14pm Constable Colin Hand and Constable Andrew Burgwin were conducting laser duties on Gordon Street at Naracoorte. They were using an UltraLyte 100 LR Laser Speed Gun. The speed limit for the area of Gordon Street they were operating in was sign posted at 60 km/h. The police officers detected a Holden Commodore travelling south at a speed of 78 km/h. The car was driven by the defendant Alexander James Young. The defendant was given an expiation notice and subsequently elected to be prosecuted. Mr Young pleads not guilty to the charge.
Because the defendant has entered a not guilty plea, prosecution must prove each essential element beyond reasonable doubt. It was not disputed however that Mr Young was the driver of a Holden Sedan XET-017 on 16 July 2008, he was driving on Gordon Street in Naracoorte at the relevant time and the relevant speed limit was 60 kilometres per hour. What the defendant disputes is that his vehicle was travelling at 78 kilometres per hour.
His Honour proceeded to find that, in the light of the s 175(3)(ba), Road Traffic Act 1961 certificate procedure (“the certificate procedure”), it was proven beyond reasonable doubt that the appellant was guilty of the charge.
The grounds of appeal
The appellant was unrepresented both at trial and on appeal. The grounds of appeal are not professionally drawn and some of them are not particularly easy to understand. The grounds appear as follows:
1.That the information contained on the expiation notice was found to have contained four errors. That the two police affidavits as submitted and used approximately 2.5 years later also contained same errors from the expiation notice leading one to conclude that the expiation notice was the source. That one of the Constables refused to substantiate his affidavit after it was pointed out that it contained same erroneous information as the first. That the Magistrate’s eventual decision did not take into effect the lineage of false information continuing throughout the process. Refer to (6) onwards of Page 9 & 10 of the Appellant’s Outline of Argument.
2.That there is a discrepancy in 13 September 2007 SAPOL media release D4 saying that the cause for the voluntary suspension of their facility was its relocation from Sturt to Netley when NATA informed us that relocation of a facility does not cause suspension. That the real cause for suspension has yet to be determined. That NATA is the only provider offering certification to AS/ISO 17025 and that during this period SAPOL was not properly certified to such standard. Refer D4 and Pages 3 to 5, Defendant’s Summary 10 December 2010.
3.That for the period from 28 January 2004 to 15 June 2009 that the SAPOL laboratory for a number of devices, including the device relevant here, was suspended. Who initiated the suspension, voluntary or otherwise is irrelevant. A voluntary suspension is deemed the same as a full suspension. That the defence had asked the Court in writing to intervene by way of subpoena to both the Commissioner of Police and NATA for a correct explanation of the events which resulted in the suspension. The request sought to overcome “client confidentiality” by making the real reason revealed for in this case. That such a request was not acknowledged by the Magistrate at any time thereafter, leading the Magistrate in absentia of information to draw a less than correct conclusion on the matter. Refer D4 page 5, Defendant’s Summary 10 December 2010.
4.That on 4 February 2011 that defence requested of the Magistrate for a document akin to the example of “Evidential Breath-Alcohol Analysis” to be produced to verify SAPOL as a certifying authority. That being “Appointment as a Certifying Authority for Measuring Instruments” for traffic speed analyser in this instance. That the request was rejected without explanation. That this document ought to have been submitted and the request allowed. That this example be allowed and designated D20 as attached. D19 being a photograph of the defendants vehicle. Refer (7) of Page 6 of the Appellant’s Outline of Argument.
5.That the evidence tendered by the Prosecution and one stated which they intended to solely rely ie the Certificate of Accuracy failed to meet all the requirements of s 42 of National Measurement Regulations 1999 causing said certificate to be annulled. Refer D6.
6.That Ultralyte lidar device with serial number UX010802 as used at the time of the alleged offence was observed to have a seal lifted from one of its adjoining faces to which it was originally affixed. That said seal did not correctly sealed the device in accordance with Australian Standards 4691.1-2003 subparagraph 2.2.4. If true then such devices ought not to be used until resealed in the usual manner. Refer D17. [Note D17 incorrectly states AS 2898.1 but ought to be AS 4691.1. Wording is the same for both devices.]
7.That at least one of the tests ranges for the purpose of daily “fixed distances checks” – the 25m range being actual 25.096m failed to meet the requirements of Australian Standards in exceeding the maximum allowable baseline distance more than the allowed maximum 0.05m. That both 25m and 50m are on uneven ground. Refer M32 and M34, Pages 21 and 22 of the Appellant’s Outline of Argument.
8.That the term “speeding offence” and thus an offence cannot be attributed to speeding unless prescribed by legislation. That relevant legislation only prescribes for the term in instances where a photographic device is used. Refer D18.
9.That said Magistrate’s determination refused to rule on a number of points and had disregarded several questions of law pertinent to the case yet on the “balance of probabilities” ruled in favour of the Prosecution when on the weight of things the Prosecution offered nothing substantial in evidence or in cross-examination.
10.That the Prosecution in supplying exhibit Certificate of Accuracy and questions raised in cross examination had failed to prove that Mr Young was travelling at “78 kph” and that the basis for the Magistrate believing so was circumstantial evidence at best derived from an expiation notice shown to have substantial errors.
On a liberal view of the grounds of appeal, and in the light of the somewhat rambling submissions advanced by the appellant on the hearing of the appeal, I take the appellant to advance the following broad contentions.
First, the finding that the charge is proven is not supported by the evidence; further, if the appellant was required in consequence of the certificate procedure to prove facts (such as his vehicle’s speed, the inadequacy of the testing of the device or the vitiating effect of a suspension of the SAPOL laboratory from National Association of Testing Authorities (NATA)), the Magistrate erred in finding that he had not done so. (Grounds of appeal 1, 2, 3, 6, 7, 9 and 10).
Second, the prosecution is vitiated by non-compliance by SAPOL with the National Measurement Act 1960; further, the existence of a document entitled “Evidential Breath-Alcohol Analysis” confirms that such compliance is mandatory. (Grounds of appeal 5 and 4).
Third, Rule 20, Australian Road Rules is limited to offences detected and recorded by a photographic device. (Ground of appeal 8).
I approach the contentions in that order.
THE FIRST CONTENTION: The finding that the charge is proven is not supported by the evidence. Further, if the appellant was required in consequence of the certificate procedure to prove facts (such as his vehicle’s speed, inadequacy of the testing of the device or the vitiating effect of a suspension of the SAPOL laboratory from NATA), the Magistrate erred in finding that he had not done so. (Grounds of appeal 1, 2, 3, 6, 7, 9 and 10)
It is first necessary to examine the certificate procedure in a little detail. Section 175(3)(ba), Road Traffic Act 1961 provides:
(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;
I will proceed to consider the operation of the certificate procedure by reference to the following stages of analysis:
·Conditions precedent to the engagement of the certificate procedure;
·The practical operation of the certificate procedure;
·The requirements and limits of the certificate procedure;
·The nature and extent of the presumption created by a valid certificate;
·Was the “certificate” as tendered admissible in the present case?;
·The nature of the onus imposed by a s 175(3)(ba) certificate; and
·Some ways in which a defendant can overcome a certificate.
The conditions precedent to the engagement of the certificate procedure
The conditions precedent to the engagement of the certificate procedure are as follows.
First, the device must be established to be a “traffic speed analyser”. In this case, this was proven by the tender of an entry in the South Australian Government Gazette, dated 13 December 2001, and received as exhibit P1. The particular Ultralyte 100 LR laser speed gun used by Constable Hand to take the relevant reading bore the unique serial number UX010802 and I will refer to it as “the relevant device”.
Second, the certificate must be signed by a police officer of, or above, the rank of Inspector. Here, it was signed by Superintendent Trevor John Tilley whose rank was above that of Inspector.
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 477
CERTIFICATE OF ACCURACY OF TRAFFIC SPEED ANALYSER
Ultralyte 100LR Laser Speed Gun
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)Ultralyte 100LR Laser Speed Gun Serial Number: UXO10202
was 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 477
REQUEST FOR A CERTIFICATE OF ACCURACY OF TRAFFIC SPEED ANALYSER LTI ULTRALYTE 100LR LASER
Pursuant to Section 175(3)(ba) of the Road Traffic Act 1962Reporting Member to Complete
I declare that: Yes No
1. 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 Laser
Serial 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: UX010802
was range tested at the start of shift on 16/7/2008 at 0815 hours
AND
was range tested at the end of shift on 16/7/2008 at 1600 hours
A scope alignment test was conducted 16/7/2008 at 0815 hours
Signed (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: D9005006A
Set for Hearing: 11/5/2009 Court: Naracoorte Magistrates Court
Other Comments (either Reporting Member or Officer of Police may provide comment – initial at end)
_______________________________________________________________________
_______________________________________________________________________
Detach on dotted line to present certificate to Court
………………………………………………………………………………………………………..PD 477
CERTIFICATE OF ACCURACY OF TRAFFIC SPEED ANALYSER
Ultralyte 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: UXO10202
was 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
The bottom quarter section (the certificate section) in fact has some differences to the exhibit P2 actually received in evidence and reproduced above. The earlier draft version was signed by Superintendent Tilley on 14 April 2009 whereas exhibit P2 was signed by him on 30 November 2010. A further difference of substance is that the earlier draft certificate stated that the device “… was accurate to within manufacturer’s specifications namely + or – 2 km/h” whereas the certificate P2 actually tendered in Court stated that the device “… was accurate to within Australian Standard 4691.1 – 2003 namely + or – 2 km/h”.[1] I will refer to the Australian Standard 4691.1 – 2003 as “the Standard”.
[1] The averment in the draft certificate that the testing established that the traffic speed analyser “was accurate to within manufacturer’s specifications namely + or – 2 km/h” is the form that has hitherto been encountered in such cases as Elliott v Police [2009] SASC 292 and Such v Police (2011) 57 MVR 313, and there is no evidence before this Court as to why the change to “within Australian Standard 4691.1 – 2003” was made in this case or as to the significance of that change.
Quite apart from the actual averment in a s 175(3)(ba) certificate, it is plain that a defendant has previously been, and remains, free to rely upon both breaches of Australian Standards and breaches of manufacturers’ instructions (both in conjunction with appropriate expert evidence) to attempt to demonstrate the inaccuracy or unreliability of a measuring instrument. Indeed, Such v Police was a case in which the defendant attempted to rely upon breaches of Australian Standards.
In the present case, the appellant at trial did not rely on the content of the Standard and never supplied a copy of it to the Magistrate. Rather, he attempted to establish that the testing process adopted by Constable Hand was not in accordance with the instructions of the manufacturer of the “traffic speed analyser” and tendered documents said to emanate from the manufacturer. It is to be noted that the only reference made by the Magistrate to the Standard was at paragraph [19] of his judgment when he simply set out in full the averment of accuracy appearing on the certificate. His Honour in no way entered upon any analysis of the content or significance of the Standard for the simple reason that he was never asked to. There is no ground of appeal asserting that his Honour had erred in this regard.
I consider it unnecessary for me to consider the content, status or application of the Standard in the present circumstances, or indeed any significance that may attach to the wording of the averment relating to the Standard, in the present certificate. Such consideration should await a case in which all such matters are properly raised at trial and may be examined with the benefit of appropriate expert evidence and detailed legal submissions as to the relevant principles and authorities.
It may be that on 30 November 2010 Superintendent Tilley filled out and signed a new certificate (the bottom quarter section of a new form) relying on the same information submitted by Constable Hand in the previous form or Constable Hand may have filled out a whole new form, Superintendent Tilley signing the bottom of that form. It was not suggested that the outcome of this appeal in any way turns on which of those alternatives occurred and it appears to be common ground that the portions of the form filled out by Constable Hand, as appear above, are to be taken to be the relevant assertions made by him upon which the certificate was signed and issued by Superintendent Tilley.
Clearly Constable Hand did, in the normal course, mark each of the boxes in the top quarter section of the standard form in exhibit D6. However, one of the difficulties for a defendant is that the mere marking of such a check list tells one very little about the bearing of the particular procedures upon the accuracy of the instrument. Another similar difficulty is that assertions (such as those at paragraphs numbered 3, 4 and 5) that tests were performed “correctly” are opaque in the absence of detail as to what were the correct tests and what was the correct manner in which they should be performed.
None of the above is to suggest that there is anything sinister about the SAPOL process. The fact is that the prosecution process is highly adversarial and the law provides that if the certificate is valid, the defendant must discharge an onus to avoid a conviction. If he fails to do so, it will not avail him to complain that the system was too hard without either representation by a skilled lawyer or the services of a competent expert witness. I must decide this case on the law as it is and the circumstances as they are, not what they might have been.
The requirements and limits of the certificate procedure
Having regard to the grave effect upon a defendant of the effective reversal of the onus of proof[2] consequent upon the use of the certificate procedure, it is vital to delineate precisely the boundaries of what the prosecution may, and may not, certify (thus enlivening that effective reversal) and to insist upon strict observation of those boundaries.
[2] “Effective reversal of the onus of proof” is used as convenient shorthand. The nature and extent of the presumption created by a valid certificate is discussed below.
Section 175(3)(ba) must be read quite carefully. I strongly emphasise that the certificate procedure does not enable the prosecution to certify any fact that it might wish to. The prosecution is not enabled to simply certify at what speed the subject vehicle was travelling at a particular time and nor is it enabled to certify as to the accuracy of the relevant device in a vacuum.
Rather, the prosecution is enabled, and only enabled, to certify the fact which is delineated in s 175(3)(ba) and which I will refer to as “the permissible certifiable fact”, namely:
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
(Emphasis added)
At the risk of labouring the point, what the prosecution is not able to do is to make two free-standing, or independent, averments, namely:
1. the specified traffic speed analyser was tested on a specified day;
2.the specified traffic speed analyser was accurate to the extent indicated in the certificate.
The vice of such a purported “certificate” in that form would be that it would tend to convey the (wrong) impression that if the first assertion that the traffic speed analyser was tested on a specified day was successfully challenged by a defendant (for example, by compelling evidence that no testing had in fact occurred on that day), that would still leave operative the second independent averment (that the traffic speed analyser was accurate).
Of course, the true effect of the certificate procedure is that the prosecution is only entitled to aver the permissible certifiable fact as set out above, “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”. Thus, in the example referred to above of compelling evidence establishing that no testing had in fact occurred, the certificate procedure would ipso facto fail because accuracy had not been demonstrated by that non-existent testing.
The nature and extent of the presumption created by a valid certificate
The making of the permissible averment by the prosecution in a valid certificate enlivens a rebuttable presumption. In the absence of evidence to the contrary, the following clearly limited and delineated facts will be presumed in relation to the specified traffic speed analyser used for the purpose of measuring the speed of any motor vehicle (not being mounted in a fixed housing[3]):
·that the specified testing was carried out on the specified occasion;
·that the specified testing established that the specified traffic speed analyser was, on the day on which it was so tested, accurate to the specified extent (“the main presumption”); and
·the specified traffic speed analyser was accurate to that same specified extent (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) on the day following that day (“the presumption of continuance”).
[3] In the present case the “traffic speed analyser” was not mounted in a fixed housing. In the case of a traffic speed analyser that was, at the time of measurement, mounted in a fixed housing, the presumption will extend for the period of 27 days immediately following the day of testing.
It is obvious, but worth stating, that the limited presumption of continuance is entirely dependent upon, and cannot rise above, the extent of accuracy (if any) established at the time of the initial testing specified in the certificate.
Was the “certificate” as tendered admissible in the present case?
A question arises as to whether the “certificate”[4] was here bad on its face and therefore inadmissible. The appellant did not put his argument in this way at trial, or on appeal, but he is not legally trained and he did make it quite clear before, and at, trial that he opposed the prosecution relying on the s 175(3)(ba) certificate for the various reasons that he advanced. He did not actually object at the point when the prosecutor moved to tender the certificate at an early stage of the trial but the Magistrate did not advise the appellant that he had the right to do so at that time as distinct from arguing about its validity or application in due course. The appellant opposed the certificate procedure generally and the admissibility of the certificate must now be reviewed.[5]
[4] The use of the word “certificate” may be tendentious in such a setting since invalidity may mean that the purported certificate is not a certificate at all. For the sake of brevity, what follows should be understood in that sense and the caveat will not always be repeated.
[5] The position in Such v Police (2011) 57 MVR 313 was quite different in that the defendant in that case was represented at trial by an experienced solicitor who appreciated the significance of declining to object to the admission of the certificate at the time that it was tendered.
The form of the present certificate
The “certificate” here purports to certify that the specified traffic speed analyser:
was 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
(Emphasis added)
For the reasons given above, the correct formulation should be:
was tested before use on 16/7/2008 and after use on 16/7/2008 and was shown by the test to be accurate to within Australian Standard 4691.1 - 2003 namely + or – 2 km/h
(Emphasis added)
The question therefore arises as to whether the omission of the words “shown by the test to be” invalidate the purported certificate. As explained in some detail above, if the certificate had simply stated that the relevant unit “was accurate to within Australian Standard 4691.1 - 2003 namely + or – 2 km/h” without any reference at all to the testing process, the certificate would clearly have been invalid. It would incorrectly convey that the task of the defendant was to discharge a broad burden of proving the inaccuracy of the device whereas the defendant is entitled to attack the narrower proposition that the testing showed the device to be accurate to a particular extent. If successful in that attack, the certificate may ipso facto be defeated.
In the present case, I conclude, with some hesitation, that while the drafting of the certificate was imprecise, the words “was 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” just, but only just, make it sufficiently clear that the assertion that the device was “accurate to within Australian Standard 4691.1 - 2003 namely + or – 2 km/h” is entirely dependent upon (and not independent of) the efficacy of the testing procedure on 16 July 2008. However, SAPOL would be well advised in the future to alter the wording of the certificate by adding the words “shown by the test to be” to forestall future argument on this point.
I therefore conclude that the certificate was admissible in this case. Of course, this, in itself, says nothing as to its “effect”, its “weight” or the ways in which it can be positively negated by a defendant.
The nature of the onus imposed upon the defendant by a s 175(3)(ba) certificate
In Motor Vehicle Law: South Australia it is stated:[6]
Section 175 relieves the prosecution from proving many elements of various charges. If the defendant wishes to dispute any of these allegations he or she will need to introduce evidence to the contrary. However the defendant is under no obligation to disprove the accuracy of the allegation in the complaint. If there is evidence on the topic and there is doubt about the accuracy of the allegations in the complaint, then the defendant is to be given the benefit of that doubt and should be acquitted: Gill v Mazzoletti; Considine v Lemmer [1971] SASR 39; Merrall v Samuels (1971) 2 SASR 378. The ultimate onus always rests with the prosecution.
[Footnotes omitted]
[6] Lawbook, Motor Vehicle Law: South Australia, Vol 1 (at Update 131) [RTA 7270].
The author then proceeds to reproduce Wells J’s statements of principle in Merrall v Samuels[7] as if they govern the present position under s 175(3)(ba).
[7] (1971) 2 SASR 378, 382-383.
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].
I agree with this approach of White J and Nyland J. Both of their Honours clearly differed with the contrary view of Gray J expressed in Police v Dodd[12] (Dodd) and Llewellyn v Police[13] (Llewellyn). With respect, I also disagree with Gray J for at least two additional reasons.
[12] [2004] SASC 91.
[13] [2005] SASC 160.
First, in both Dodd[14] and Llewellyn[15] Gray J stated that “[t]here is no suggestion in s 175(1)(i) that the legislature intended to reverse the onus of proof”. It is my view that the very decision of the legislature to change the phraseology from the original wording of “shall be prima facie evidence of” to “constitutes, in the absence of proof to the contrary, proof of the facts certified” is unmistakeably redolent of an intention to reverse the onus.
[14] [2004] SASC 91, [39].
[15] [2000] SASC 160, [34].
Second, Gray J’s reasoning in Dodd[16] and Llewellyn[17] appears to be that the dissenting judgment of Bray CJ in Crawford Earthmovers Pty Ltd v Fitzsimmons[18] (Crawford Earthmovers) (a case involving the phraseology “is proof of the matters so alleged in the absence of proof to the contrary”) accorded with the views of Dixon J in R v Hush; Ex parte Devanny,[19] (Devanny) and that the “Bray/Dixon” approach should be preferred to the majority approach in Crawford Earthmovers. However, it is critical to note that Devanny involved a provision making averments in an Information prima facie evidence of the matter averred. As I have stated above, that is a very significant distinction and, in my view, militates strongly against the correctness of his Honour’s reasoning.
[16] [2004] SASC 91, [39].
[17] [2005] SASC 160, [34].
[18] (1972) 4 SASR 116, 133.
[19] (1932) 48 CLR 487, 507-508.
Finally, I note that in Such v Police,[20] Anderson J also followed the approach of White J in Police v Bulgin[21] and stated: [22]
[55]The appellant’s third ground of appeal is that the magistrate reversed the onus of proof. The relevant section, s 175(3)(ba), as I have said, although creating a presumption, allows for the presumption to be rebutted on the balance of probabilities. The appellant bore the onus in that regard. The magistrate found that that onus had not been discharged: see Police v Bulgin [2010] SASC 143 at [46] per White J and Evans v Benson (1986) 46 SASR 317 at 319. I have dealt with her Honour’s findings. The decisions above outline the basis for the reversal of the onus of proof in these matters. In my view, the magistrate did not err in this respect.
[20] (2011) 57 MVR 313, 247 [55].
[21] [2010] SASC 143, [46].
[22] Anderson J did not refer to the views of Gray J in Dodd and Llewellyn. The Full Court in Such v Police did not find it necessary to address this matter.
Some ways in which a defendant can negate a s 175(3)(ba) certificate
It is obvious (and specifically countenanced by the words “in the absence of evidence to the contrary”) that when a certificate certifies (as it must) that particular specified testing was carried out on a particular specified occasion, and that that testing established that the particular specified traffic speed analyser was at the time of that testing accurate to a particular specified extent, then a defendant is entitled to take issue with any or all of those averred matters.
Further, as noted above, if in such circumstances the defendant does defeat the main presumption, then the additional minor presumption of continuance will also fall because it can do no more than adopt whatever state of accuracy (if any) is established under the main presumption. In other words, if that main presumption cannot establish the required level of accuracy, the additional limited presumption of continuance can give no further assistance to the prosecution.
There will be a number of varieties of evidence which may be sufficient to constitute “proof to the contrary” and defeat the presumption. However, it is particularly worth noting four factual categories that tend to recur, each of which is raised for consideration in the present case.
The first category involves impugning the averred testing process. The main presumption may be defeated if, for example, there is sufficient evidence that the specified tests did not occur at all or, if they did occur, they were not capable of establishing, or did not establish, the specified level of accuracy.
The second category involves impugning the speed detection process by evidence relating to the subject vehicle rather than the “traffic speed analyser”. If, for example, a defendant can point to sufficient evidence in the case that in fact the vehicle did not (or could not) travel at or near the speed alleged, the presumption will be defeated, despite the fact that such evidence may not directly address the accuracy or inaccuracy of the device itself.
The third category involves impugning the speed detection process by evidence that directly relates to the accuracy or reliability of the “traffic speed analyser”. If, for example, a defendant can point to sufficient evidence in the case that the device was inaccurate or unreliable, the presumption may be defeated.
The fourth category involves impugning the process of the operation of the device during the speed detection process. As further explained below, the certificate procedure does not apply to this aspect of the matter and the prosecution must prove correct operation by the operator beyond reasonable doubt.
I will now say something more about each of these four categories in the context of the evidence in the present case.
The first category: Impugning the testing process averred to have occurred on 16 July 2008
If a defendant can point to sufficient evidence in the case that the averred specified tests did not occur at all or, if they did occur, they were not capable of establishing, or did not establish, the specified level of accuracy, the main presumption may ipso facto fall to the ground. However, for the reasons that follow, the present appellant did not discharge this onus.
Constable Hand’s evidence of the tests he carried out on 16 July 2008
Constable Hand gave the following evidence as to the tests he performed on 16 July 2008:
QOn 16 July 2008 did you perform any tests on that traffic speed gun?
AYes I did.
QAnd what, what tests did you conduct?
AThey were competence checks to satisfy myself that the unit was accurate, that the unit was working accurately.
QOkay. And could you tell the Court what that entailed you doing?
AOn the left hand side of the unit is a test button. By pressing that it showed all the characters on the rear display and on the targeting reticule. I would check that to make sure that all the characters were visible and nothing was missing. I would press that test button again and it would come up with a display ‘TT’ and there I was able to check the alignment of the targeting reticule. It would give an audible tone which would change via frequency when it was targeted on something. So for a horizontal targeting I would line it up or intersect a traffic – sorry a power line and for the vertical alignment I would intersect the stobey pole. Third test that I did was a range test and zero speed test. It involved a point at the back of the Naracoorte Police Station marked 25 where I would stand and hold the laser over that point. I would then target on a reflective dot which would give a reading. This particular reading was 25 which indicated 25 metres away and a speed of zero. I then would target it on another point which was 50 which gave a 50 metre reading and again a speed of zero. And I – at the conclusion of that, I was satisfied that the unit was working accurately.
QOkay and at about what time on that day did you perform that test?
AThere were two tests done. One at 8.15 that morning and one again at the end of the day at 4 o’clock.
QAnd what tests did you perform at 4 o’clock that day?
ASame ones that I did in the morning.
QAnd what were the results of that test at 4pm?
ABoth tests were zero and 25 and zero and 50. All displays lit up and the reticule appeared aligned with what I was aiming at.
QOkay and what did that indicate to you with respect to the speed gun?
AIt indicated that the unit was accurate, working accurately.
QOkay. Was there any damage to the unit that you could see?
ANo.
The appellant did not ask Constable Hand any questions about his tests and did not refer him to any document bearing upon that matter.
The evidence relied upon by the appellant
Amongst the documents tendered at trial by the appellant was exhibit D13 which consists of two pages (not sequentially numbered) taken from a United Kingdom internet site. On the first of the two tendered pages appears the following directions as to the carrying out of a “Fixed Distance Check”:
Fixed Distance Check
The fixed distance test requires only one target. For uniformity it should be 80 metres from the shooting mark. To ensure the distance is accurate use a metal tape to measure it. If there is insufficient space available that specific distance is not crucial. However the distance between the target and the shooting mark must be a multiple of one metre. A fraction of a metre will not do.
[Diagram not reproduced]
The test procedure is as follows:
1.Stand on the shooting mark and aim the UltraLyte at the target. Squeeze and release the trigger.
2.Check the back panel screen. The speed-reading should be zero. A reading of zero verifies the timing accuracy of the instrument and is identical in nature to an accurate velocity reading of a vehicle moving at any speed. The distance reading should be 79.9, 80 or 80.1 metres.
It appears that the prosecutor agreed that this document referred to an Ultralyte laser speed gun but not that it referred to the same model unit used by Constable Hand in the present case. Indeed, it appears to relate to a different model since the model addressed by this document apparently required one testing distance of 80 metres whereas the model used by Constable Hand apparently required two testing distances of 25 metres and 50 metres.
The appellant tendered further evidence relevant to the testing procedure, namely exhibit D15 which is a report from Sawley Lock O’Callaghan, Licensed Surveyors, dated 15 April 2010, concerning the location described by Constable Hand in his evidence as having been used for the testing process. It is as follows:
15th April 2010
Mr Alex Young
37 Canavan Road
MOUNT GAMBIER SA 5290Dear Sir,
RE: Check Distances
Upon your request for a distance check over the Base Line at the rear of the Naracoorte Police Station, we submit the following results:
The fieldwork was conducted on the 14th April 2010.
The instrument we used was a Leica TCRP1203+ Total Station.
There are 2 Baselines. In both instances the instrument was set precisely over each base point and several distances read to each target from their prospective base points.
The horizontal distance to the target on the 25m Baseline was 25.096 metres. The horizontal distance to the target on the 50m Baseline was 50.021 metres.
Yours faithfully
Sawley Lock O’Callaghan
[signed]
Craig J Lock
Licensed Surveyor
On the basis of the above material the appellant submitted that the distances referred to by Constable Hand needed to be exactly 25 metres and 50 metres whereas the surveyor report suggested that the respective distances were 25.096 metres and 50.021 metres respectively.
There are a number of obvious problems with this submission in the absence of explanatory expert evidence. The meaning of exhibit D13 is uncertain and the inference to be drawn (if any) as to the effect of a slight deviation from the recommended figures is unstated and not obvious. Further, as stated above, exhibit D13 appears to relate to a different model Ultralyte device. In these circumstances, any transfer of information (uncertain as it is) pertaining to the device referred to in exhibit D13 to an analysis relating to the device used by Constable Hand appears to be little more than a guess.
The situation here is much the same as presented to the Full Court in Such v Police, where Vanstone J (with whom Gray and Sulan JJ agreed) addressed the topic of the fixed distance test and concluded:[23]
[17]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 Constable Thompson and the extent to which that training and the testing conducted by Constable 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.
[23] (2011) 57 MVR 313, [17].
In the present case, the appellant also abstained from challenging the officer’s expertise in testing the device and, although he tendered some evidence in an attempt to impugn the actual tests themselves, he called no expert evidence as to the meaning and significance of the factual matters upon which he sought to rely. In those circumstances, the present Magistrate was correct in ruling that there was insufficient evidence to constitute “proof to the contrary” so as to defeat the operation of the presumption.
The second category: Evidence proving that the vehicle did not exceed the speed limit (but not directly addressing the accuracy or inaccuracy of the device)
It is well established that a second way by which a defendant may challenge the main presumption is to rely upon evidence which positively proves that the vehicle did not exceed the speed limit on the relevant occasion (but does not directly address the accuracy or inaccuracy of the device).
To take an obvious case, a driver of a decrepit vehicle might challenge a reading of 190 kilometres per hour on a traffic speed analyser and call unimpeachable expert evidence that the particular vehicle was simply incapable of reaching anywhere near that speed under any circumstances. If the Magistrate accepts that evidence then, in the absence of other prosecution evidence, the result should be that the defendant would be acquitted. In such a case, there would be no necessity for additional evidence directed to the accuracy or inaccuracy of the device.
Cazzol v Fuss[24] (Cazzol) was a case where the defendant sought to defeat the certificate by evidence directed to his own vehicle rather than to inaccuracy of the device. The Magistrate had held that the defendant’s task was to prove “that the radar unit was malfunctioning” and on appeal, O’Loughlin J observed:[25]
Although I believe that the learned special magistrate came to the correct decision, I do not believe that his reasoning as stated in the passage just quoted, is accurate. The defendant was not required to prove, on the balance of probabilities or at all, that the radar unit was malfunctioning; he was required to prove, on the balance of probabilities, that he was not driving at a speed in excess of 60 km/h. There are several ways in which that proof could be forthcoming, as Mr Moss readily agreed. For example a defendant and other witnesses may give evidence on oath that they are able to assert positively that the speed of the vehicle was 60km/h or less. If that evidence is accepted then the defendant would have discharged the onus that has been placed upon him. By inference, such a finding may suggest that the unit was malfunctioning; equally, it may suggest that the witness for the Crown who was monitoring the particular unit had given incorrect evidence; it is not necessary for a defendant to prove that the unit was malfunctioning.
(Emphasis added)
[24] (1988) 6 MVR 350.
[25] (1988) 6 MVR 350, 352.
The passage in emphasis within the above quotation is important. It contains two propositions.
The first proposition is that “[t]he defendant was not required to prove, on the balance of probabilities or at all, that the radar unit was malfunctioning”. O’Loughlin J is clearly correct here in stating that such a defendant is not restricted to proving that the particular traffic speed analyser was “malfunctioning” (although he may of course attempt to do so). His Honour correctly gives non-exhaustive examples of other quite different ways in which a defendant might defeat the charge against him and one of those examples is that of adducing evidence that the subject vehicle was simply not travelling in excess of the relevant speed limit at the relevant time. As he correctly noted, acceptance of that type of evidence in such a case may lead to the inference that the traffic speed analyser must have been malfunctioning, or that the operator gave incorrect evidence, whether deliberately or inadvertently; but in any event, the result is that the prosecution have failed to prove its case because “proof to the contrary”, within the meaning of those words in s 175(3)(ba), has negated the effect of s 175(3)(ba).
The second, and more contentious, proposition is that the defendant “was required to prove, on the balance of probabilities, that he was not driving at a speed in excess of 60 km/h”. With respect, this second proposition will not hold true in the context of different factual scenarios where (unlike in Cazzol) the defendant does successfully attack the accuracy of a “traffic speed analyser”. For example, if a Magistrate accepts evidence relied upon by the defendant which directly controverts the averment that the specified traffic speed analyser was tested on the specified day, or that it was shown by such testing to be accurate, then, depending on the nature and success of the attack, the prosecution might well be precluded from taking advantage of the s 175(3)(ba) procedure. In such a situation as that, it would be incorrect to say that the defendant had to go further and “prove, on the balance of probabilities, that he was not driving at a speed in excess of 60 km/h” since the burden of proof would remain on the prosecution to prove the charge beyond reasonable doubt without the advantage of the s 175(3)(ba) procedure.[26]
[26] One may envisage a case where the loss of the traffic speed analyser evidence might not be the end of the prosecution case. In some cases where exceeding a speed limit by a substantial degree is alleged, the prosecution might seek to rely on a visual estimate by the police officer that the vehicle was travelling much faster than, say, 60 kilometres per hour; however, in such circumstances, the onus would remain on the prosecution to prove that the defendant was exceeding 60 kilometres per hour and it would certainly not be for the defendant “to prove, on the balance of probabilities, that he was not driving at a speed in excess of 60 km/h”.
So it was that in the later case of Elliott v Police[27] (Elliott) Sulan J stated:
[28]I respectfully disagree with O’Loughlin J that the section requires a defendant to prove, on the balance of probabilities, that he was not driving at a speed in excess of 60 km/h. The onus remains upon the prosecution throughout to prove beyond reasonable doubt that the defendant was driving at a speed in excess of the speed limit. The section merely provides an aid to proof as to the accuracy of the instrument which recorded the speed. Insofar as issues such as whether the speed was correctly measured, correctly read, or correctly reported, the onus remains upon the prosecution.
[27] [2009] SASC 292, [28].
I respectfully agree with that statement. However, I emphasise that in the earlier decision in Cazzol the facts had been that the defendant had been charged with driving at 73 kilometres per hour in a 60 kilometres per hour zone, and the defendant asserted that he did not think that he was going as fast as that. He adduced little evidence supportive of that position and no evidence that independently challenged the accuracy of the device. As O’Loughlin J there observed, “the calibre of the appellant’s evidence was not sufficient to meet the onus that he faced”.[28] Thus, the second proposition would be correct if read solely in the context of the facts involved in Cazzol, and I rather think that it was not intended to advert to cases of a different type.
[28] (1988) 6 MVR 350, 352.
I should also note that in Elliott,[29] Sulan J later proceeded to state as follows:
[29]As I have indicated, the statutory presumption does not call for the defendant to prove that he was not driving at a speed in excess of 60 km/h. The evidence required to rebut the presumption is evidence of the inaccuracy of the laser speed detection equipment. It follows that, in order for the defendant to discharge the statutory presumption contained within s 175(3)(ba) there is required to be credible evidence that the instrument was not recording or could not have recorded speeds accurately.
(Emphasis added)
[29] [2009] SASC 292, [29].
Although Sulan J’s statement is correct in the context of the facts of the case in Elliott, it will not be literally correct if applied to the different situation where a defendant challenges a certificate by evidence to the effect that the vehicle could not have been driven at or near the speed alleged. In such cases, there is not “required to be credible evidence that the instrument was not recording or could not have recorded speeds accurately”.However, once again, it is my view that this statement of the learned Judge must be read in the light of the actual facts being considered by him. In Elliott (unlike in Cazzol) the defendant was relying on evidence directly attacking the accuracy and correct use of the “traffic speed analyser” and it was with this scenario that Sulan J was concerned.[30]
[30] Another consideration may be that, as was recognised by O’Loughlin J in Cazzol, acceptance of evidence relating to the defendant’s own vehicle which establishes that it could not have been driven at or near the alleged speed does by implication suggest that the unit was malfunctioning or that the witness for the Crown who was monitoring the particular unit had given incorrect evidence, and it may be that Sulan J had this type of evidence in mind.
In any event, it seems to me that the respective statements of O’Loughlin J and Sulan J may be reconciled in that both were considering rather different factual situations and their respective primary comments were each correct when directly applied to those respective situations.
The evidence relied upon by the appellant concerning his driving on the relevant occasion
Constable Hand gave evidence that he had timed the appellant’s vehicle at 78 kilometres per hour in a 60 kilometre per hour zone and that shortly thereafter he had the following conversation with the appellant:
I said “Do you know why we stopped you?” He said “I was going a couple of k’s over the speed limit.” I said ‘The speed limit is 60. As you can see on the laser, we recorded your speed as 78.’ He said “I didn’t think I was doing that much. When I saw you I slowed down and saw the speed was 62.”
The prosecution case was simple. It was that:
·the appellant was travelling at 78 kilometres per hour because, as he asserted, he had shortly before been travelling on the open road and denied knowing that he was in a 60 kilometre per hour zone or seeing any 60 kilometre per hour speed limit sign;
·when he saw the red and blue flashing lights he slowed down. If, as he asserted, his speedometer then indicated 62 kilometres per hour, his true speed would have been about 68 kilometres per hour having regard to his evidence that his speedometer in fact under recorded true speed to the extent of about 10 per cent; and
·accordingly, he had slowed from the initial timed speed of 78 kilometres per hour by about 10 kilometres per hour by the time he looked at his speedometer.
The appellant attempted to defeat the certificate procedure by discharging a positive onus of establishing that his vehicle simply was not travelling at the alleged speed on the occasion in question. He denied under oath that he was travelling at the speed alleged and called his passenger, Ms Lucas, who gave evidence that she did not believe that the car was travelling at 78 kilometres per hour. However, her cross-examination culminated in the following passage:
QOkay. When did you subsequently become aware that that speedometer is inaccurate?
AAfter the, after the incident, yes.
QAnd how, how long after the incident did you find out?
AI’m not sure exactly, probably about six months, 12 months. Something like, around that.
QOkay. So it is possible that Mr Young was travelling at 78 km/h at the time police activated the laser speed gun isn’t it?
AIn my opinion from what I, on the day I don’t believe it was. When the officer stated he was travelling at about 78 km/h I was shocked, I was surprised that, that that’s the speed they came up with. Because it just didn’t seem right to me.
QOkay but going back to what you said earlier, you’re not aware of when police actually activated the speed detection device are you?
ANo.
QSo by the time you saw the lights on, that had already gone past hadn’t it?
AYep.
QSo it is possible that Mr Young was travelling at 78 km/h at the time he was detected by police. Isn’t that correct?
AI suppose so.
The expiation notice
The appellant asserted that an expiation notice issued by Constable Hand on 16 July 2008 contained a number of errors which, it is said, vitiated the prosecution in some way (ground 1 of appeal). As I understand it, the appellant contended that the errors included that the colour of the vehicle was described as blue when it was in fact silver; that Constable Hand showed the appellant the speed displayed on the device on initially approaching the appellant, whereas the appellant and Ms Lucas say that that did not occur; and that Constable Hand asserted that he asked the appellant to submit to an alcotest, which assertion the appellant and Ms Lucas also deny.
The Magistrate considered that it was unnecessary for him to make findings on these disputed matters because they were not relevant. I consider that it has not been established that his Honour here erred in taking that view in the precise circumstances of the present case.
The Magistrate’s conclusion as to the defence evidence relating to the driving
The Magistrate found as follows:
The inaccuracy of the speedometer in the defendant’s car does not absolve the defendant if in fact he is speeding. True it is that the speedometer will not register the exact speed at which the vehicle is travelling and in the defendant’s vehicle the true speed was somewhat in excess of that indicated by the speedometer. Regardless of what the speedometer might show, the vehicle was exceeding the speed limit in that particular area. Mr Young claims his speed when detected was 62 kilometres per hour. If that was indeed so, taking into account the inaccuracy in the speedometer the actual speed was 68.2 kilometres per hour. The inaccuracy of the speedometer can not be an excuse for exceeding the speed limit and certainly does not prove the speed analyser was not accurate. As for the defendant’s statement to police his speed was 62 kilometres per hour, I would be surprised if he was so acutely aware of his speed at the time he was detected by the speed analyser. In fact the defendant does not know exactly where his car was when he was detected. In any event any such observation by the defendant is not sufficient to satisfy me the speed analyser was not accurate.
In my view, the evidence of the appellant and Ms Lucas taken together was of little cogency. The finding by his Honour that he was not persuaded by their evidence that the vehicle was travelling at significantly less than 78 kilometres per hour was well open to him and I decline to interfere with it.
The third category: Impugning the speed detection process by evidence that directly relates to the accuracy or reliability of the “traffic speed analyser”
Again, it is well established that a third way by which a defendant may challenge the presumption is to rely upon evidence that directly relates to the accuracy or reliability of the “traffic speed analyser”.
The appellant makes a number of submissions falling within this third category (and the following fourth category below). Before considering them, I make the preliminary comment that the appellant never asserted any relevant expertise and did not call any expert witness.[31] Of course, expert evidence need not come from an expert called by the defence since it can also be obtained through cross-examination of a prosecution expert. However, in the present case, as in most cases of this type, the prosecution simply relied upon the s 175(3)(ba) certificate procedure and called no expert witness to give evidence. In circumstances such as these, the absence of a defence expert will often signal a doomed enterprise and so it was to prove here.
[31] He did tender the letter from a licensed surveyor which is examined above.
The status of the seals on the device
In cross-examination as to the presence of seals on the device, Constable Hand stated that there were two stickers which stated “calibration is void if label removed”. The appellant abstained from asking Constable Hand any question as to the condition of the stickers but Constable Hand stated in re-examination that they were intact.
As part of the defence case, the appellant and Ms Lucas each stated that they observed that one of those seals was only partially attached to the device on 16 July 2008. The appellant went on to submit that the consequence of the state of the seal as he and Ms Lucas described it was that calibration of the device was void. He emphasised that proper calibration is essential to the accuracy of any measuring device; that the Magistrate found that these particular seals were labelled “calibration void if label removed”; and that the condition of the seals is one of the matters specifically referred to in the checklist initially joined to a s 175(3)(ba) certificate (as explained above).
However, although such matters may otherwise have been highly relevant, his Honour preferred the evidence of Constable Hand and found that there was in fact no defect in the attachment of the seals. This factual finding was open to his Honour and renders the matter moot; the submissions sought to be made by the appellant fall to the ground and I need not examine them further.
Suspension of the SAPOL laboratory from NATA from 28 January 2004 to 15 June 2009 vitiated the prosecution
A further matter sought to be relied upon by the appellant was the fact that at the time of the driving on 16 July 2008 (and as from 28 January 2004 until 15 June 2009) the SAPOL laboratory was suspended from NATA.
As appeared by evidence, or was agreed between the parties, SAPOL has an internal calibration facility which calibrates their devices, including “traffic speed analysers”. The appellant asserts that a question may always arise as to the accuracy of the calibrators themselves and whether the regime in place to ensure the accuracy of the calibrators is sufficient for that purpose. That proposition may be accepted in a general sense.
As I understood the further argument of the appellant, it was that NATA is the only provider in Australia of accreditation to AS/ISO 17025 General Requirements for the Competence of Testing and Calibration Laboratories and that while SAPOL originally was, and again now is, accredited with NATA, there was at the relevant time a suspension of SAPOL’s accreditation with NATA.[32] The appellant submitted that such suspension calls into question both the trustworthiness of SAPOL’s calibration process (including the testing of its calibrating equipment) and, in turn, the accuracy of the testing process for traffic speed analysers, including the testing of the particular Ultralyte unit used by Constable Hand on 16 July 2008, over four years into a five and a half year suspension period.
[32] It appears to have been agreed that this suspension lasted for just under five and a half years, being from 28 January 2004 to 15 June 2009, although the precise circumstances surrounding the suspension were not clear on the evidence before the Court.
The submission is an interesting one and the Magistrate considered it. His Honour concluded:
I am not satisfied the voluntary suspension of accreditation with NATA automatically means the testing and calibration regime followed by South Australia Police is unreliable or flawed.
I consider that this conclusion was open to his Honour on the limited evidence that was before him. Once again, the problem for the appellant is that he bore a positive onus in the present case. Whether the discharge of that onus required evidence which demonstrated that the lack of accreditation at the relevant time actually affected the accuracy of the particular testing process carried out on the particular Ultralyte unit used by Constable Hand, or merely that it had an unacceptable tendency to do so, is, I think, unnecessary to decide here. That is so because the evidence sought to be relied upon by the appellant here was simply inadequate to satisfy either level of onus. I make no wider comment on these matters, which may be needed to be examined at a far greater depth on an appropriate occasion.
However, for completeness, I will record that among the documents tendered at trial by the appellant (both appearing within exhibit D6 and no doubt provided to the appellant by SAPOL prior to trial) were two particular documents of interest. The first is as follows:
CERTIFICATE No 08/3329
[SAPOL Coat of Arms]
CERTIFICATE OF ACCURACY
This certifies that the LTI Ultralyte infrared light detection and ranging system has been tested and found capable of determining the speed and range of motor vehicles in accordance to a traceable National Standard.
The speed measuring instrument described in this certificate was on the test date stated below, verified as a speed measuring device capable of determining the speed at which a motor vehicle travels within a limit of error not exceeding plus or minus two kilometres per hour.
LTI UltraLyte is manufactured by LASER TECHNOLOGY INC.
Eaglewood, Colorado, USA
SERIAL NUMBER UX010802
CERTIFICATION DATE 29 November 2007
The LTI UltraLyte was sealed.
The instrument used to certify calibration of the above device has been calibrated within the previous year and is traceable to a National Standard with reference to a standard of measurement under Regulations of the National Measurement Act (1960).
Signed (signed) I.D. No 7902
T. McManus
The second document (also within exhibit D6) consists of seven pages issued by the National Measurement Institute being a certificate to which is attached a letter and a report from the National Measurement Institute attesting to the accuracy of a LIDAR calibrator Serial Number SS000006. I reproduce only the one page certificate which appears as follows:
[Australian Coat of Arms]
Australian Government
National Measurement
Institute[ SAPOL Stamp]
CERTIFICATE OF VERIFICATION OF A REFERENCE STANDARD OF
MEASUREMENT IN ACCORDANCE WITH REGULATION 13 OF THE NATIONALMEASUREMENT REGULATIONS 1999 IN ACCORDANCE WITH THENATIONAL MEASUREMENT ACT 1960
Description of standard of measurement: A LIDAR Calibrator
Manufacturer: Laser Technology Inc
Permanent distinguishing marks: Serial Number: SS000006
Model Number: LSMS
Date of verification: 21 – 27 September 2007
Date of expiry of certificate: 27 September 2008
Value(s) of standard of measurement: As stated in Report RN071157 of the
National Measurement Institute
Uncertainty of value(s): As stated in Report RN071157 of the
National Measurement Institute
This uncertainty is calculated in accordance with the principles of the ISO Guide to the Expression of Uncertainty in Measurement (1995), with an interval estimated to have a confidence level of 95% at the time of verification.
Values, and uncertainties, of relevant As stated in Report RN071157 of the
influence factors: National Measurement Institute
Signature: (signed) Date: 10/10/07
Name of signatory: Dr J.R. Miles
Being a person with powers delegated by the Chief Metrologist acting under Section 18D of the National Measurement Act 1960 in respect of Regulation 13 of the National Measurement Regulations 1999, I hereby certify that the above standard is verified as a reference standard of measurement in accordance with the Regulations.
Note:Report RN071157 of the National Measurement Institute forms part of this Certificate
The prosecutor did not tender these documents at trial and did not seek to rely on them, taking the view that the tender of such documents was not a condition precedent to the admission of the certificate. In this approach he was legally correct, as is confirmed by the decision of the Full Court in Such v Police.[33]
[33] (2011) 57 MVR 313, [13], [16].
It may be that these documents (and possibly other documents as well) could have established that the device had in fact been properly calibrated within an appropriate timeframe by a calibrator which had then been accurate and fit for that purpose. I do not in any way base my decision on those documents, and nor did the Magistrate, but their existence might be thought to militate against any residual concern that a miscarriage of justice actually occurred here.
The fourth category: Impugning the speed detection process by evidence relating to the competency of the operation of the “traffic speed analyser”
A matter that may be very important in circumstances such as the present is the skill with which the police officer operated the device during the speed detection process. The obvious analogy is that a rifle may be perfectly made and accurate within itself, but if it is not skilfully used on a particular occasion the target will likely be missed.
Further, it is critical to appreciate that the certificate procedure does not enact any presumption as to the expertise with which the device was used on any particular occasion. To pursue the rifle analogy, the certificate procedure may assist the prosecution to prove that the rifle is accurate within itself but it says nothing as to the person using it. Appropriate use of the device on the particular occasion had to be proven by the prosecution to the normal standard of proof, beyond reasonable doubt.
Constable Hand’s operation of the unit during the timing of the vehicle
Constable Hand gave evidence-in-chief that he had received training in the use of speed detection devices including training in relation to this particular device, the Ultralyte 100 LR laser speed gun in 2006, that he used the device very regularly and that he was competent in its use. He also described his precise operation of the unit during the timing of the appellant’s vehicle. The appellant did not ask Constable Hand any questions as to these matters and did not refer him to any documents relevant thereto.
On my analysis of the evidence, the evidence given by Constable Hand, including as to his training (unchallenged in this context), was capable of proving beyond reasonable doubt that the use of device on the particular occasion was appropriate. I am not prepared to disturb the Magistrate’s finding in that regard.
For the above reasons, I reject grounds of appeal 1, 2, 3, 6, 7, 9 and 10.
THE SECOND CONTENTION: The prosecution is vitiated by non-compliance by SAPOL with the National Measurement Act 1960. Further, the existence of a document entitled “Evidential Breath-Alcohol Analysis” confirms that such compliance is mandatory. (Grounds of appeal 5 and 4)
The appellant made a number of submissions that proceeded on the express assumption that the National Measurement Act 1960 in some way applies to these proceedings. The appellant did not explain why that assumption is correct or refer to any of the authorities that address that question in various contexts.
Section 4 of the National Measurement Act 1960 provides as follows:
Section 4—Objects and application of Act
(1) The objects of this Act are:
(a) to establish a national system of units and standards of measurement of physical quantities; and
(b) to provide for the uniform use of those uniform units and standards of measurement throughout Australia; and
(c) to co-ordinate the operation of the national system of measurement; and
(d) to bring about the use of the metric system of measurement in Australia as the sole system of measurement of physical quantities; and
(e) to provide for a national system of trade measurement;
and this Act shall be construed accordingly.
(1A)Subsection (2) does not apply in respect of the application of this Act and regulations to utility meters used for trade.
Note:Section 4A deals with the application of the Act in respect of utility meters used for trade
(2)This Act and the regulations do not apply to the exclusion of any law of a State or Territory except in so far as that law is inconsistent with an express provision of this Act or of the regulations.
(Emphasis added)
Section 4(2) in emphasis above is important. It makes clear that the Act is in no way intended to “cover a field” or impliedly exclude State legislation.
SAPOL does have some association with the National Measurement Institute, as is apparent, for example, from the two documents contained in exhibit D6 reproduced above. However, where the appellant errs is to assume that, because there is such an association, the provisions of the National Measurement Act 1960 in some way govern the conduct of this prosecution and, in particular, affect the validity of the s 175(3)(ba) certificate.
Stated very shortly, the position is that just because SAPOL may liaise with the National Measurement Institute and conform to certain of the standards under the National Measurement Act 1960 does not mean that such conformity is a condition precedent to the use of the s 175(3)(ba) certificate procedure or that the National Measurement Act 1960 in some way governs or affects a prosecution for the present offence.
Exhibit number D20 - a document rejected by the Magistrate at trial
At trial the appellant sought to tender a further document emanating from the National Measurement Institute which was at first given an exhibit number D20 but was then rejected by his Honour on the basis that it was irrelevant. I interpret the grounds of appeal as extending to the decision of the Magistrate to reject the tender of this document and I received a copy of the document on appeal, which was marked as “VD D2”. The first page of that document appears as follows:
[Australian Coat of Arms]
Australian Government
National MeasurementInstitute
Appointment as a Certifying Authority
forMeasuring Instruments
In accordance with Regulation 73 of National Measurement Regulations 1999 (Cth), in force under the National Measurement Act 1960 (Cth), the Chief Metrologist hereby appoints the person for the time being holding, or performing the duties of, the office of:
Lab Manager
South Australia Police
(ABN 93 799 021 552)
GPO Box 1539Adelaide SA 5001
to be a Certifying Authority for the certification and recertification of measuring instruments under regulation 37 of the National Measurement Regulations 1999 (Cth) for the following instrument(s):
Evidential Breath – Alcohol Analysers
This appointment is for the period from 2nd April 2012 to 18th November 2013 and is limited to the range specified in the attached schedule, and the use of procedures approved by the Chief Metrologist.
Dated this 5th day of April 2012
[signed]
Dr R Brittain
For Dr PTH Fisk
Chief Executive Officer and Chief MetrologistNational Measurement Institute
The appellant submitted at trial, and repeated on appeal, that the existence of this document in relation to breath analysing instruments necessitates the existence of an equivalent document dealing with “traffic speed analysers”. He sought, without success, the production of the postulated equivalent document and argued in effect that such missing document was akin to a missing but smoking gun that would demonstrate that the subject of “traffic speed analysers” is indeed governed in South Australia by the National Measurement Act 1960.
This argument is misconceived and fails in limine. In fact, the document “VD D2” only exists because of the existence of Schedule 12 to the National Measurement Regulations 1999 which appears as follows:
Schedule 12 Maximum permissible error —
legal measuring instruments
(regulation 3, definition of maximum permissible error)
When comparing the error of an evidential breath analyser with the corresponding maximum permissible error, the maximum permissible error must be rounded to the value of the verification scale interval. The error of a reading indicated by an evidential breath analyser may be greater than the maximum permissible error by one least significant digit.
Table 1 Evidential breath analysers
Item Mass concentration Maximum permissible Maximum permissible
Error for certification error for recertification
1 Not more than ±0.004 g/210 litres ±0.006 g/210 litres
0.08 g/210 litres
2 More than 0.08 g/210 ±5% of measured ±8% of measured
litres but not more than concentration concentration0.4 g/210 litres inclusive
3 More than 0.4 g/210 ±20% of measured ±30% of measured
litres concentration concentration
A perusal of the National Measurement Regulations 1999 shows that there is not now, and never has been, an equivalent provision in relation to “traffic speed analysers”. This absence in turn explains why the postulated smoking gun document in relation to “traffic speed analysers” (a document suggested to be an equivalent document to “VD D2”) has not been able to be produced – it does not exist, and never has.
Finally, I note that paragraphs 6 and 7 of an email from Dr Richard Brittain[34] to the appellant (which the appellant also tendered as part of exhibit D8) have some bearing upon the present submission. The email is as follows:
[34] The Senior Legal and Policy Officer, Legal Metrology Branch, National Measurement Institute.
Dear Mr Young,
I refer to your e-mail of 3 February 2010 to our Calibration Coordinator and your e-mail of 5 February 2010 to me. Further to the matters you raise I would offer the following comments:
1.The former National Standards Commission (NSC) became part of the NMI on the formation of the latter on 1 July 2004.
2.The National Association of Testing Authorities (NATA) is not part of the NMI – it is an autonomous not-for-profit association.
3.NATA is the only provider in Australia of accreditation to AS/ISO 17025 General Requirements for the Competence of Testing and Calibration Laboratories.
4.The National Measurement Act 1960 (Cth) provides infrastructure by which measurements may be traced to Australian legal units of measurement via standards designated for that purpose.
5.The legal metrology infrastructure provided by the Act and its subordinate legislation also provides for the use of evidential certificates to demonstrate legal traceability to the standards mentioned in paragraph 4.
6.However, with the exception of measuring instruments used for trade measure from 1 July 2010 the Act does not mandate the use of the legal metrology infrastructure and it is the choice of the authority which operates a measuring instrument for legal purposes whether or not to avail themselves of the facilities provided by the Act to support the veracity of their measurements.
7.The vehicle-speed measuring instruments used by the Police etc are operated by State instrumentalities under State law.
8.This e-mail is entirely without prejudice and noting [sic “nothing] in it constitutes legal advice express or implied.
I trust that this information satisfies your enquiry.
Yours sincerely
Dr Richard Brittain LLB
Senior Legal and Policy Officer
Legal Metrology Branch
National Measurement InstituteDepartment of Innovation, Industry, Science and Research
(Emphasis added)
Of course, in so far as the conclusion of Dr Brittain at paragraphs 6 and 7 may be conclusions of law, his opinion will not bind the courts. However, as it happens, I consider that the legal position there stated is consistent with the mainstream of the authorities. The National Measurement Act 1960 in general, and s 4 in particular, has been considered in a number of reported and unreported cases including (in chronological order):
·Re Appeal of White;[35]
[35] (1987) 9 NSWLR 427.
·Pavich v Carrol-Walden;[36]
·Breedon v Kongras;[37]
·Radalj v Taylor;[38]
·Rumsley v Taylor;[39]
·Pearce v Dennis;[40]
·Jenkins v WMC Resources Ltd;[41]
·Allen v Broome;[42]
·Moran v Police;[43]
·Van Reesema v Police;[44] and
·Agar v Dolheguy.[45]
[36] (1996) 17 Qld Lawyer Reps 120.
[37] (1996) 16 WAR 66.
[38] (1997) 98 A Crim R 170.
[39] (1997) 142 FLR 312.
[40] [1998] 1 Qd R 431.
[41] (1999) 21 WAR 393.
[42] [2003] TASSC 38.
[43] (2010) 56 MVR 232.
[44] [2010] SASC 201.
[45] (2010) 246 FLR 179.
It is true to say that not all of those authorities are consistent in every detail. However, I consider that they demonstrate that the National Measurement Act 1960 does not, in the present circumstances, and on the evidence before me, apply so as to afford the appellant a defence to the present charge. That narrow conclusion is sufficient to dispose of this appeal and, since neither the appellant, the prosecutor at trial, the Magistrate nor counsel for the respondent on appeal found it necessary to undertake any analysis of any of the above decisions, it is unnecessary to take the matter further in the present case.
For the above reasons, I reject grounds of appeal 5 and 4.
THE THIRD CONTENTION: The offence created by Rule 20, Australian Road Rules is limited to offences recorded by a photographic device
As is noted above, the appellant was charged with an offence contrary to Rule 20, Australian Road Rules. Rule 20 states:
A driver must not drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving.
This is a simple provision and appears to apply to any offence of driving over the speed limit, no matter by whatever means the offence is detected. The argument of the appellant to the contrary, as I understand it, is as follows.
First, he seeks to rely on the fact that the term “speeding offence” is defined at s 49B, Road Traffic Act 1961 to mean “a prescribed offence defined by the regulations as a speeding offence”. He then goes to Regulation 4, Road Traffic (Miscellaneous) Regulations 1999 (“the Regulations”) which states:
Speeding offence means—
(aa) an offence against section 45A of the Act; or
(a) an offence against a provision of Part 3 of the Australian Road Rules; or
(b) an offence against regulation 9A(1) or 9A(2) of the Road Traffic (Road Rules—Ancillary and Miscellaneous Provisions) Regulations 1999 …
The appellant then submits that when one goes through those Regulations, one finds that the term “speeding offence” is only used in the context of a “speeding offence” which is detected by photographic equipment. He then seeks to say that a “speeding offence” is therefore limited to offences detected by photographic equipment. He then further submits that an offence under Rule 20, Australian Road Rules is a “speeding offence” and he therefore concludes that an offence under Rule 20, Australian Road Rules is limited to an offence detected by photographic equipment!
This argument is entirely misconceived. The multiple fallacies in the logic and legal reasoning are so obvious that to state the argument is in effect to destroy it. The correct position, put very briefly, is that the fact that the definition of a “speeding offence” for the purposes of the Regulations includes an offence under Rule 20, Australian Road Rules (amongst other offences in Part 3 of the Australian Road Rules) does not mean that the ambit of Rule 20 itself (which does not contain any limiting definition) is thereby limited by the definition in the Regulations, which definition, in any event, is clearly not limited to an offence detected by photographic equipment. The Magistrate correctly rejected the argument.
For the above reasons, I reject ground of appeal 8.
Conclusion
None of the grounds of appeal are established. I dismiss the appeal.
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