R v David Robert Baldock

[2006] NSWDC 37

CITATION:	R v David Robert Baldock [2006] NSWDC 37
HEARING DATE(S):	21st August 2006
JUDGMENT DATE:	22 August 2006
EX TEMPORE JUDGMENT DATE:	11/09/2006
JURISDICTION:	District Court Appeal
JUDGMENT OF:	Nicholson SC DCJ; ; ;
DECISION:	Held: There is no evidence from the prosecution establishing the speed as measured was the speed travelled. Appeal upheld. See para 36,37.
CATCHWORDS:	Criminal Law - Conviction Appeal from Local Court - Exceed Speed - Speed Camera - approved speed measuring device - approved digital camera recording device - certificates and photographs authorised by statute - limited evidential scope of.
LEGISLATION CITED:	s 46 and 47(5) of the Road Transport (Safety and Traffic Management) Act, s 230 of the Road Transport (General) Act s 221 of the Motor Accidents Compensation Act s 248(4) of the Road Act 1993 s 46 and 47 of the Road Transport (Safety and Traffic Management) Act of 1999 s 29 of the Drug Misuse and Trafficking Act 1985
CASES CITED:	RTA v Nichols unreported [2005] NSWSC 946 22 September 2005, Hoeben J RTA v Mitchell [2006] NSWSC 194 22 March 2006, Adams J
PARTIES:	Roads & Traffic Authority (Respondent) David Robert Baldock (Appellant)
FILE NUMBER(S):	06/12/0484

JUDGMENT
[SUBJECT TO APPEAL]

1 HIS HONOUR: On 12 June 2005 the appellant was travelling east bound in the M5 Motorway at Bardwell Park. There are speed cameras situated in the Motorway. One of those speed cameras took a photograph of Volkswagen NXF-768 as it was travelling through the tunnel. There is no dispute the appellant was driving this vehicle at the time it was photographed. Some time after the photograph was taken the appellant received a traffic infringement notice (at least I have assumed that) alleging he was travelling at 93 kilometres per hour in the M5 Motorway on 12 June, in circumstances where the speed limit was 80 kilometres per hour. The appellant opted to have the matter heard in the Local Court.

2 In the Local Court, the Prosecution tendered certificates pursuant to s 46 and 47(5) of the Road Transport (Safety and Traffic Management) Act, s 230 of the Road Transport (General) Act and s 221 of the Motor Accidents Compensation Act and another certificate pursuant to s 248(4) of the Road Act 1993 and three photographs from the speed camera containing various images of a portion of the tunnel, various motor vehicles and encrypted pieces of information.

3 The evidential value of the material so tendered by the Prosecution is very much in dispute in these proceedings. The learned magistrate regarded the material as establishing evidence upon which he could be satisfied beyond reasonable doubt that the appellant had exceeded the speed limit by less than 15 kilometres per hour. The appellant has appealed from the learned magistrate’s decision.

4 The appellant’s case is that the learned judge below fell into error because he incorrectly applied the provisions of s 46 and 47 of the Road Transport (Safety and Traffic Management) Act of 1999. The appeal before me is not, of course, an appeal against error but rather a hearing de novo on the transcripts and such other fresh evidence as is allowed by leave.

5 Before me, the exhibits and transcript before the magistrate were tendered. The Prosecution tendered a further certificate by consent. That certificate, pursuant to s 230(2) Road Transport (General) Act 2005, certifying the Security Indicator of thirty-two letters, numbers and symbols on the photographs had been produced by MD5 algorithm. It was marked exhibit J.

6 The Court’s task is to determine whether the RTA has proved the guilt of the accused beyond reasonable doubt by reliance upon information contained in the certificates and photographs tendered.

7 The defence case is that the Prosecution cannot rely upon the certificates in circumstances where evidence contrary to the material adduced in the documents is adduced in the defence case. The defence case is that such contrary evidence has been adduced in its case.

8 The Crown position is that the evidence adduced by reliance upon s 46 and 47 of the Road Transport (Safety and Management) Act survives even where evidence to the contrary is adduced. The Crown concedes that such evidence to the contrary may, in some circumstances, raise a reasonable possibility that the alleged offender did not commit the offence alleged, but says that could only occur in circumstances where the evidence possessed the relevant cogency, quality and believability.

9 In such cases as these, the Prosecution relies on the use of approved speed measuring devices and approved digital camera recording devices. Digital camera recording devices are attached to approved speed measuring devices. By interaction of the two devices the RTA claims to be able to record on the photograph of a speeding vehicle the speed at which the vehicle is travelling, the date, time and location at which the photograph is taken, the direction in which the vehicle is travelling and the applicable speed limit.

10 It is agreed between the parties that approved digital camera recording devices are to be inspected monthly and must be found to be operating correctly before any certificate relying upon evidence contained in the photographs of that approved digital camera recording device is admissible. The relevant digital camera recording device in this case was inspected on 9 June 2005 and found to be operating correctly.

11 Likewise, it is agree between the parties that the approved measuring speed device is to be inspected annually and passed as accurate and operating correctly before evidence of the accuracy or reliability of the speed measuring device is admissible. In this case, the relevant speed measuring device was tested for accuracy and functional requirements on 13 December 2004. It was certified the device was then operating properly and accurately.

12 The Prosecution tendered a photograph of the rear end of the appellant’s motor vehicle, NXF-768, and the encrypted information contained in the photograph. There was no dispute the photograph and encryptions related to an occasion the appellant was driving his vehicle home from Canberra on 12 June 2005. So far as is relevant the encrypted information incorporated into the photograph included:

“Location code: 9551. Location: M5 Motorway Bardwell Park, east bound direction: away operator: 055.

Frame number -7

Speed limit: 080kph. Vehicle Speed: 093kph. Lane: 1. REDFLEX Sunday 12 June 2005 17:19:52. Security Indicator:”; then 32 digits and letters thereafter follow.

13 The photograph also reveals, as I say, the rear end of a VW where the licence plate NXF-768 is clearly visible.

14 The appellant tendered in the Court below a “Site Maintenance Log History” for the relevant digital camera recording and speed measuring devices for the period 12 December 2004 to 27 February 2006. On eleven occasions during this fifteen month period the log showed there were maintenance issues relating to one or other or both devices. Of particular relevance is a maintenance issue first reported on 4 May 2005. The date that particular maintenance issue was rectified is recorded as 1 July 2005. The particular maintenance issue for the period is described as “unable to eject DVD or restart computer”. The DVD was apparently replaced and “tested all okay”. It was monitored for the “next few sessions”. There was a recurrence of symptoms on 23 June 2006.

15 Of course the relevance of the maintenance issue is that the maintenance issue was alive on 12 June 2006 when the photograph of the appellant’s car was taken. Because of the encryptions recorded on the photographs and the existence of three different photographs I am satisfied the computer responsible for all photographs being taken and encryptions appearing thereon was operational on 12 June 2006.

16 The defence also sought to rely upon the eleven separate maintenance issues during the fifteen months period as evidence that the speed measuring device and digital camera recording was so dysfunctional as to amount to “evidence to the contrary” of the particulars certified in the certificates and photographs. That submission is rejected.

17 The defence also relied upon sworn oral evidence given by the appellant. For purposes of this judgment I refer to three portions of his evidence: Transcript 7/3/06 page 18 line 47:

“I was sitting on, I think, the speed limit was 80 and I was doing about six or seven ks less than the speed limit and there was a car sitting on the outside of me the whole time and I was, you know, trying to do the speed limit because I wanted to switch to the right hand lane to pass the car in front of me but I couldn’t because the car beside me was doing exactly the same as I was which was significantly less than the speed limit. This occurred for the full length of the tunnel because I was discussing it repeatedly with my wife, saying you know “It's a bit frustrating that I can’t even do what the speed limit is because this guy’s sitting on the outside of me the whole time ‘And that’s why the situation for the full length of the tunnel was so clear to me because we had this continuing discussion the whole way through the tunnel...’

P25 commencing at line 33:
“Yeah, but it sticks clearly in my mind because of the conversation I had with my wife the whole way through the tunnel. You do only have my word for it but my wife and I were discussing it, not just once but several times through the tunnel and that’s why I am so acutely aware of what speed I was doing and you know I go through that tunnel once every six months or whatever it is, so it’s not a trip I make regularly that I can get confused with another trip.”

And elsewhere on the same page at line 49:
“No, the situation of the traffic was that I had to hold my position in the traffic and I wasn’t doing the speed limit and that was the topic of discussion and it was a repeated topic of discussion like two to three times through the tunnel because it was a continuing circumstance the whole way through. That’s why when I got the photo I was so amazed, when I got the photo, that I was speeding because I wasn’t, and I wasn’t just one or two ks over. Like I’m talking six or seven ks over it (as said) and that’s why I was so amazed.”

18 I am satisfied that when the appellant said, “I was sitting on, I think, the speed limit was 80”, that the words “I think” were not any equivocation but rather a mannerism in his speech. I am also satisfied that when he said, “I wasn’t just one or two ks over, like I’m talking six or seven ks over it” he did not mean “over it”, he meant “under it”. That is, “under it” being the speed limit. To read those remarks as a concession that he was over the speed limit would make no sense of his evidence at all. He was in Court denying that he had been over the speed limit.

19 On the Prosecution case, evidence is given of a measurement of speed of the appellant’s vehicle at approximately 5.20pm on 12 June 2005. That measurement of speed, on the Prosecution case, was obtained by use of an approved measuring device. That evidence is to be found on exhibit H, photograph 2. The evidence is that the measured speed was 93 kilometres per hour. S 47 Road Transport (Safety and Management) Act so far as is relevant, provides as follows:

(1) In proceedings for an offence of driving at a speed in excess of a speed limit imposed by or under this Act or Regulations evidence may be given of a measurement of speed obtained by use of an approved speed measuring device and recorded by an approved camera recording device.

(2) In proceedings in which such evidence is given:
(a) The provisions of section 46 relating to the accuracy or reliability of the approved speed measuring device apply, and
(b) subsections (3)-(5) apply in relation to the approved camera recording device, and
(c) evidence that a photograph taken of an approved digital camera recording device bears a Security Indicator of a kind prescribed by the regulations is evidence (unless evidence to the contrary is adduced) that the photograph has not been altered since it was taken.

(3) A photograph tendered in evidence as a photograph taken by an approved camera recording device on a specified day at a specified location:
(a) is to be accepted as having been so taken (unless evidence to the contrary is adduced), and
(b) is evidence (unless evidence to the contrary is adduced) of matters shown or recorded on the photograph...

20 It is to be noted that s 47 provides that the provisions of s 46 also apply. The relevant portions of s 46 Road Transport (Safety and Management) Act are these:

(1) In proceedings for any offence in which evidence is given of a measurement of speed obtained by the use of an approved speed measuring device, a certificate purporting to be signed by the appropriate officer certifying that:
(a) the device is an approved speed measuring device within the meaning of this Act, and
(b) on a day specified in the certificate (being within the time prescribed by regulations before the alleged time of the offence) the device was tested in accordance with the regulations and sealed by an appropriate officer, and
(c) on that day the device was accurate and operating properly, is admissible and is evidence(unless evidence to the contrary is adduced) of the particulars certified in and by the certificate.
(2) If any such certificate is tendered in proceedings for an offence, evidence of the accuracy or reliability of the approved speed measuring device is not required in those proceedings unless evidence that the device was not accurate or not reliable has been adduced...

21 It is important to understand the day referred to in s 46(1) is 13 December 2004. However the position is less clear as to the date in subsection (2).

22 Subsection (2) creates a presumption of the continued accuracy of the speed measuring device on the day and at the time of the measurement of excessive speed, unless evidence that the device was not accurate or not reliable has been adduced. Given the Prosecution needs to prove beyond reasonable doubt speed in excess of a speed limit on the day and at the time of the alleged offence the evidence of unreliability or inaccuracy on the day of the alleged offence and at the time would be relevant evidence.

23 23.In RTA v Nichols unreported [2005] NSWSC 946 22 September 2005 Hoeben J puts it wider than I have:

“17. Subsection 46(2) provides that once such a certificate is tendered in proceedings no further evidence as to the accuracy or reliability of the speed measuring device is needed unless evidence that the device was not accurate or not reliable has been adduced. Implicit in that qualification is that the inaccuracy or unreliability has to have occurred within the period [of the device] under consideration, ie after the date of testing, which in this case was 13 January 2004.”

24 As I earlier mentioned, the date in the instant case that I am dealing with is 13 December 2004. Thus evidence of unreliability or inaccuracy of the speed measuring device on the day of the offence would negate the presumption of continued accuracy and reliability of the approved speed measuring device created by the opening words of s 46(2) “if any such certificate is tendered for an offence evidence of the accuracy or reliability of the approved measuring device is not required...”

25 In these circumstances for the Prosecution to succeed it would need to prove beyond reasonable doubt accurate measurement of the speed of the alleged offending vehicle. Accuracy of the approved speed measuring device at a point which may be as many as eleven months twenty-nine days previously would, in my view, hardly be adequate. On the other hand accuracy of the approved speed measuring device two or three days previously may be given more weight. In this case the time lapse, as I said, is six months. In my view the evidence for the purposes of proving the accuracy of the speed measurement is inadequate to satisfy a court beyond reasonable doubt in those circumstances.

26 I turn now to consider s 47(3). S 47(3)(a) and (b) create what Adams J describes as a “default position”. The relevant default position in this case can be summarised thus, the photograph taken by the approved digital camera recording device is evidence of the matters shown or recorded on it. Those matters include the date, time, location, speed limit, and excessive speed recorded. However, the “default position” is negated when “evidence to the contrary is adduced”.

27 In RTA v Mitchell [2006] NSWSC 194 22 March 2006 at paragraph 15 Adams J says:”

“15. The argument focuses upon the significance of the phrase “unless evidence to the contrary is adduced”. That appears in each of the paras 47(2)(c), 47(3)(a) and 47(3)(b). It is important at the outset to note that in order to remove what I might call the “default position”, all that is necessary is that evidence to the contrary be adduced. The statute does not require that evidence to be of any particular quality. Even slight or unconvincing evidence “to the contrary” would satisfy the negating requirement.”

28 Significantly, for the purposes of this case, his Honour gives, in paragraph 16, an example of the type of evidence that would constitute “evidence to the contrary” for the purposes of s 47(3)(b).

“16...A consequence of this reading of the paragraphs is that when evidence (say) from a defendant is given that he or she was not driving at the speed shown on the photograph the photograph and, perhaps more significantly, the text on it (including the speed) is not evidence of what is depicted. Moreover, this would be so even if the evidence of the driver was disbelieved.”

29 The example given by Adams J does not amount to direct evidence that the speed measuring device is not accurate or not reliable. But it challenges the accuracy and reliability of the speed measuring device to the point where the speed claimed by the driver (in the instant case 74 kilometres per hour) could not stand against the accuracy of the speed recorded by the speed measuring device. One is clearly inconsistent with the other if the Tribunal were to accept the evidence of, in this case, the appellant. The inference that would need to be drawn is that the speed measuring device was inaccurate.

30 Evidence that the appellant was driving at 74 kilometres an hour is evidence contrary to the information shown or recorded on the photograph that the speed of the vehicle was 93 kilometres per hour as to the speed of the vehicle. That being so the photograph does not provide evidence of the speed.

31 The Prosecution sought to argue that the provisions of s 46 and 47 were provisions facilitating proof of measurement of speed and other matters shown or recorded on the photographs. That submission is best answered by reference to remarks earlier made by Adams J in Mitchell’s case.

“2. In the present context it is clear that legislation attempts to strike a balance between evidence which for all practical purposes any reasonable person would accept gives rise to a reasonable level of certainty about particular facts and yet gives to a defendant an opportunity to test that assumption and in a particular case show that the assumption ought not to lead to an adverse decision in a context where the test of guilt is proof beyond a reasonable doubt.

3. So far as the experience of the Courts is concerned it is evident that the legislation has had the effect or removing from the lists the vast majority of cases which might otherwise have been fruitlessly contested. The number of contested cases is tiny and of those only very few raise substantive factual issues suggesting that the forensic reliability of the equipment used to identify vehicles exceeding the speed limit is in question.”

32 It is a fundamental concept in our criminal law that the burden of proving guilt rests with the Prosecution. It makes sense where the reliability of equipment used is not in issue, to facilitate the proof of matters that are not in contest. However, where matters are in contest the norm is that the Prosecution shoulders the burden of proving guilt. S 46(2) and 47(3)(b) are to be understood as acknowledging that proposition in circumstances where “evidence to the contrary is adduced”.

33 As earlier noted, Adams J observed, and it is worth repeating:

“To remove what I might call the “default position” all that is necessary is that evidence to the contrary be adduced. The statute does not require that the evidence be of any particular quality. Even slight or unconvincing evidence “to the contrary” would satisfy the negating requirement.”

34 The phrase where “evidence to the contrary is adduced” is not a requirement that the defendant establish as a reasonable possibility that he was travelling at a speed less than the speed appearing on the photograph. If that was the intention of parliament, it no doubt would have relied upon legislation not dissimilar to that found in s 29 of the Drug Misuse and Trafficking Act 1985 where clearly an onus is placed upon the accused to negate a proposition.

35 The provisions expressed in s 46(2) and 47(3)(b) are so expressed, to relieve the defence of shouldering any burden of proof. It follows from all this that the issue of speeding being contested, in this case by evidence contrary to the evidence contained in exhibit H2, a burden fell upon the Crown to prove the accuracy of the speed it was alleging. In the circumstances of this case it would have needed to do so by running a case in reply. It did not do so.

36 The wash-up is that the Crown allegations are contested. There is evidence that the appellant was travelling at something less than the speed limit through the tunnel. There is no evidence from the Prosecution establishing the speed as measured was the speed as travelled (see s 46(2) and s 47(3)(b) of the Road Traffic (Safety and Management) Act). In the event, the Prosecution has failed.

37 My formal orders are these. The conviction appeal is upheld. The conviction recorded by the learned magistrate is quashed. The fines and costs imposed by the learned magistrate are also quashed.

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