Roads and Maritime Services v Addario - [2012] NSWCA 412

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Roads and Maritime Services v Addario [2012] NSWCA 412
Hearing dates: 27 September 2012
Decision date: 13 December 2012
Before: Beazley JA at [1];
Campbell JA at [46];
Tobias AJA at [54]
Decision:
1. Leave to appeal granted upon condition that the appellant discontinue proceedings against the respondent in Local Court proceedings 421/10 filed in the Local Court at Burwood;
2. Appeal allowed;
3. Set aside the orders of the Supreme Court made 21 December 2011;
4. Set aside the order made in the Local Court at Burwood on 6 September 2010 dismissing the prosecution in proceedings 421/10;
5. Order that the appellant pay the costs of the respondent of the appeal proceedings in the Supreme Court and to further pay the respondent's costs of this appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
TRAFFIC LAW - Speeding offence - Approved camera recording device - Evidence adduced by respondent contradicting time recorded by camera - Whether non-expert evidence admissible to challenge accuracy, reliability or proper operation of camera recording device - Respondent's evidence not sufficient to raise a doubt within meaning of s 73A of Act - Respondent's evidence otherwise admissible in defence of prosecution - Road Transport (Safety and Traffic Management) Act 1999, ss 47, 73A.
STATUTORY CONSTRUCTION - Certificate adduced under s 47(5) is prima facie evidence that camera recording device operating correctly - Evidence of accuracy, reliability or proper operation of device not required unless evidence sufficient to raise doubt as to those matters adduced - Whether respondent adduced evidence sufficient to raise doubt that camera recording device was accurate, reliable and operating correctly - Prima facie evidence only rebuttable by evidence adduced from a person with relevant specialised knowledge pursuant to s 73A - Section 73A concerns admissibility not sufficiency of evidence - Respondent's evidence did not satisfy s 73A requirements.
Legislation Cited: Crimes (Appeal and Review) Act 2001
Evidence Act 1995
Road Transport (General) Act 2005
Road Transport (Safety and Traffic Management) Act 1999
Cases Cited: Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85
Roads and Traffic Authority (NSW) v Baldock [2007] NSWCCA 35; 168 A Crim R 566
Category: Principal judgment
Parties: Roads and Maritime Services (Appellant)
Gianfranco Addario (Respondent)
Representation: Counsel:
T Lynch (Appellant)
E M Peden (Respondent)
Solicitors:
Hunt & Hunt (Appellant)
Maurice Marshan (Respondent)

File Number(s): CA 2012/87304
Publication restriction: No
Decision under appeal

Jurisdiction:

9111

Citation:

RTA v Addario [2011] NSWSC 1285

Date of Decision:

2011-12-21 00:00:00

Before:

R S Hulme J

File Number(s):

2011/24819

Judgment

BEAZLEY JA: On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWCA 412
Decision Date: 13 December 2012

CaseChat Overview and Summary

The case of *Roads and Maritime Services v Addario* concerned an appeal to the Court of Appeal of New South Wales regarding a speeding offence. The dispute arose when the respondent sought to challenge the accuracy of a speed camera recording by adducing evidence that contradicted the time recorded by the device. The primary legal issue before the court was whether non-expert evidence could be admitted to challenge the accuracy, reliability, or proper operation of an approved camera recording device, and if so, whether the respondent's evidence was sufficient to raise a doubt within the meaning of section 73A of the *Road Transport (Safety and Traffic Management) Act 1999* (the Act).

The court considered the evidentiary framework established by the Act, particularly sections 47 and 73A. Section 47(5) provides that a certificate stating an approved digital camera recording device was operating correctly constitutes prima facie evidence of its accuracy. The court held that such prima facie evidence is only rebuttable by evidence sufficient to raise a doubt as to the device's accuracy, reliability, or proper operation. Crucially, section 73A dictates that any assertion contradicting or challenging the accuracy or reliability of information derived from such a device must be made by an expert witness. The court found that the respondent's evidence, which consisted of an assertion about their whereabouts on the date in question, did not constitute an assertion about the accuracy or reliability of the camera device itself, but rather an assertion of fact about their own location. Therefore, it did not satisfy the requirements of section 73A for expert evidence.

The court reasoned that while the respondent's evidence might be admissible in defence of the prosecution, it was not sufficient, in the absence of expert testimony, to overcome the prima facie evidence provided by the section 47 certificate. The magistrate's assessment of whether other evidence was sufficient to raise a reasonable doubt would depend on the content of the certificates and the nature of the evidence adduced. In this instance, the certificate provided under section 47(5) lacked specificity regarding the checks performed on the device's time recording accuracy. Despite this, the court concluded that the respondent's evidence did not meet the threshold for challenging the device's operation under section 73A.

Consequently, the Court of Appeal allowed the appeal, set aside the orders of the Supreme Court and the Local Court, and ordered that the appellant pay the respondent's costs of the appeal proceedings. Leave to appeal was granted on the condition that the appellant discontinue separate Local Court proceedings against the respondent.

Orders

Orders of the court

1. Leave to appeal granted upon condition that the appellant discontinue proceedings against the respondent in Local Court proceedings 421/10 filed in the Local Court at Burwood;

2. Appeal allowed;

3. Set aside the orders of the Supreme Court made 21 December 2011;

4. Set aside the order made in the Local Court at Burwood on 6 September 2010 dismissing the prosecution in proceedings 421/10;

5. Order that the appellant pay the costs of the respondent of the appeal proceedings in the Supreme Court and to further pay the respondent's costs of this appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Macquarie Dictionary defines "assertion" as "a positive statement; an unsupported declaration". It is the former of those meanings that best fits the context of s 73A. The most appropriate to the context of s 73A of the meanings given by the Oxford English Dictionary are: "The action of declaring or positively stating; declaration, affirmation, averment" and "A positive statement; a declaration, averment." This is in accordance with the meaning that "assert" has in ss 59-63 Evidence Act 1995 where an "asserted fact" is one that it can reasonably be supposed a person intended to assert by a representation. In the Act, an "assertion that contradicts or challenges ... the accuracy or reliability of information (including a photograph) derived from..." (relevantly) an approved digital camera recording device is a statement the gist of whose meaning is that the output of the device is not accurate or reliable together, possibly (indeed, usually, given the requirements for opinion evidence) with reasons why that opinion is held. If any such statement is to be placed before a court, it must necessarily be placed there in the course of evidence. Section 73A(2)(b) has the effect that any statement in evidence whose meaning is of that type can be given only by an appropriate expert. However, not every piece of evidence that has the effect of raising a doubt about whether information recorded by a digital camera recording device is accurate is an assertion that contradicts or challenges the accuracy or reliability of the information derived from the device. If a photograph produced by a digital recording device shows that on a particular date a defendant's motor vehicle was travelling at a particular speed at a particular time and place, and the defendant says in evidence, in effect: "I know nothing about cameras or recording devices, but I know that I was overseas on that date", that is not an assertion about the accuracy or reliability of information derived from an approved digital camera recording device. Instead, it is an assertion about where the defendant was on a particular date. In deciding whether to accept such evidence a magistrate would need to take into account that, assuming the appropriate certificates had been tendered, there was prima facie evidence of the accuracy of the device and the particulars it had recorded. In light of that prima facie evidence a magistrate might decide that the unsupported (or slightly supported) say-so of the defendant was not sufficient to give rise to a reasonable doubt about whether the offence had been committed. However, once prima facie evidence of the elements of the offence was proved by the appropriate certificates, whether any other evidence was sufficient to raise a reasonable doubt about whether the offence had been committed would, always, be a matter for the magistrate to assess. The facts in the present case illustrate how the content of the certificates that are tendered might themselves bear upon the strength of evidence that a magistrate regarded as sufficient to raise a reasonable doubt about whether the offence had been committed. Section 46 of the Act concerns certificates of the accuracy of approved speed measuring devices. There is some specificity about the manner in which the s 46 certificate must state that the testing has occurred, namely in accordance with the regulations. Section 47(5) is the corresponding provision concerning certificates relating to the accuracy of digital camera recording devices. It requires the certificate to certify, inter alia, that on inspection "the approved digital camera recording device was found to be operating correctly". However there is no regulation or other specification that identifies the manner in which the inspection takes place. The certificate in the present case contained a schedule giving information about the location and type of the camera in question, and the date and time of the inspection. The certificate also stated as "Details": "observed five vehicles pass the device and then observe images of those vehicles recorded by the device". The certificate says nothing about the certifier having made any observations or checks of the accuracy of the date and time recordings made by the device.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Roads and Maritime Services v Addario [2012] NSWCA 412
Hearing dates:	27 September 2012
Decision date:	13 December 2012
Before:	Beazley JA at [1]; Campbell JA at [46]; Tobias AJA at [54]
Decision:	1. Leave to appeal granted upon condition that the appellant discontinue proceedings against the respondent in Local Court proceedings 421/10 filed in the Local Court at Burwood; 2. Appeal allowed; 3. Set aside the orders of the Supreme Court made 21 December 2011; 4. Set aside the order made in the Local Court at Burwood on 6 September 2010 dismissing the prosecution in proceedings 421/10; 5. Order that the appellant pay the costs of the respondent of the appeal proceedings in the Supreme Court and to further pay the respondent's costs of this appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TRAFFIC LAW - Speeding offence - Approved camera recording device - Evidence adduced by respondent contradicting time recorded by camera - Whether non-expert evidence admissible to challenge accuracy, reliability or proper operation of camera recording device - Respondent's evidence not sufficient to raise a doubt within meaning of s 73A of Act - Respondent's evidence otherwise admissible in defence of prosecution - Road Transport (Safety and Traffic Management) Act 1999, ss 47, 73A. STATUTORY CONSTRUCTION - Certificate adduced under s 47(5) is prima facie evidence that camera recording device operating correctly - Evidence of accuracy, reliability or proper operation of device not required unless evidence sufficient to raise doubt as to those matters adduced - Whether respondent adduced evidence sufficient to raise doubt that camera recording device was accurate, reliable and operating correctly - Prima facie evidence only rebuttable by evidence adduced from a person with relevant specialised knowledge pursuant to s 73A - Section 73A concerns admissibility not sufficiency of evidence - Respondent's evidence did not satisfy s 73A requirements.
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Evidence Act 1995 Road Transport (General) Act 2005 Road Transport (Safety and Traffic Management) Act 1999
Cases Cited:	Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85 Roads and Traffic Authority (NSW) v Baldock [2007] NSWCCA 35; 168 A Crim R 566
Category:	Principal judgment
Parties:	Roads and Maritime Services (Appellant) Gianfranco Addario (Respondent)
Representation:	Counsel: T Lynch (Appellant) E M Peden (Respondent) Solicitors: Hunt & Hunt (Appellant) Maurice Marshan (Respondent)
File Number(s):	CA 2012/87304
Publication restriction:	No
Decision under appeal	Jurisdiction: 9111 Citation: RTA v Addario [2011] NSWSC 1285 Date of Decision: 2011-12-21 00:00:00 Before: R S Hulme J File Number(s): 2011/24819