Roads and Traffic Authority of New South Wales v Baldock

[2007] NSWCCA 35

Reported Decision: 168 A Crim R 566

New South Wales

Court of Criminal Appeal

CITATION:	Roads and Traffic Authority of New South Wales v Baldock [2007] NSWCCA 35
HEARING DATE(S):	2 February 2007
JUDGMENT DATE:	21 February 2007
JUDGMENT OF:	Spigelman CJ at 1; Bell J at 57; Howie J at 58
DECISION:	1 The questions on the stated case are to be answered as follows; a) Yes; b) Yes; c) Unnecessary to Answer; d) Yes; 2 The Appellant pay the Respondent’s costs.
CATCHWORDS:	TRAFFIC LAW – offences – proof of speed – speed measuring devices – photographic evidence of speeding offence – accuracy – evidence to the contrary
LEGISLATION CITED:	Australian Road Rules; rule 20 Crimes (Local Courts Appeal and Review) Act 2001; Pt 3 Criminal Appeal Act 1912; s5B Interpretation Act 1987; s33 Motor Traffic (Radar Detected Offences) Amended Act 1987 Road Transport (Safety and Traffic Management) Act 1999; s3(c), 27(3)(b), s44(1), s45(1), s45(2), s46, s47 Suitors’ Fund Act 1951 Traffic Act 1909; s4AB, s4AC Traffic (Photographic Evidence) Amendment Act 1990
CASES CITED:	Charara v The Queen [2006] NSWCCA 244 CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 Di Natale v Kelly [2006] NSWCCA 201 Director of Public Prosecutions v Cummings [2006] VSC 327 Gianoutsos v Glykis (2006) 162 A Crim R 64 Newcastle City Council v GIO General Limited (1997) 191 CLR 85 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Lavender [2005] 222 CLR 67 Re Bolton; ex parte Beane (1987) 162 CLR 514 Roads and Traffic Authority (NSW) v Michell [2006] NSWSC 194 Roads and Traffic Authority (NSW) v Nichols [2005] NSWSC 946 Waugh v Kippen (1986) 160 CLR 156
PARTIES:	Roads and Traffic Authority of New South Wales (Appellant) David Baldock (Respondent)
FILE NUMBER(S):	CCA 2006/2160
COUNSEL:	S Odgers SC, H Dhanji (Appellant) P Hamill SC (Respondent)
SOLICITORS:	B Hearnden, Hunt & Hunt (Appellant) D Miralis, Nyman Gibson Stewart (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/12/0484
LOWER COURT JUDICIAL OFFICER:	Nicholson DCJ
LOWER COURT DATE OF DECISION:	22 August 2006

- 1 -

2160/2006

SPIGELMAN CJ
BELL J
HOWIE J

Wednesday 21 February 2007

ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES v David Robert BALDOCK

Judgment

1 SPIGELMAN CJ: On 12 June 2005 the Respondent was driving a vehicle which was recorded by a speed camera as travelling at 93 kph in an 80 kph zone. He was convicted of an offence under r20 of the Australian Road Rules in the Local Court but successfully appealed to the District Court. The appeal judge, his Honour Judge Nicholson SC, has stated a case for this Court.

2 The stated case sets out the basic facts:

“[2] The questions of law to be submitted in this case stated arise from an appeal under s11 of the Crimes (Local Courts Appeal and Review) Act 2001 by Mr David Robert Baldock (the appellant) against his conviction in the Local Court for a speeding offence. Mr Baldock has been found guilty in the Local Court of an offence that, on 12 June 2005, he was travelling at 93 kph on the M5 Motorway at Bardwell Park, where the applicable speed limit was 80 kph.
[3] In the Local Court, the prosecution tendered certificates pursuant to s46 and 47(5) of the Road Transport (Safety and Traffic Management) Act 1999, s230 of the Road Transport (General) Act and s221 of the Motor Accidents Compensation Act and another certificate pursuant to s248(4) of the Road Act 1993. It also tendered, pursuant to s47(3) of the Road Transport (Safety and Traffic Management) Act 1999, three photographs as photographs taken by an approved camera recording device on a specified day and specified location. So far as is relevant, information shown or recorded on the photographs included the rear end of Mr Baldock’s motor vehicle, NXF-768, and the following:
‘Location code: 9551. Location: M5 Motorway Bardwell Park, east bound direction: away operation: 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.
[4] At the hearing in the Local Court, the appellant testified. He testified, in substance, that when he drove his motor vehicle past the approved camera recording device on 12 June 2005 at about 5.19 pm the speed of the vehicle was below the speed limit of 80 kilometres per hour.
[5] The prosecution tendered before me the transcript of the Local Court proceedings and the Exhibits in those proceedings. The prosecution tendered a further certificate by consent. That certificate, pursuant to s230(2) of the Road Transport (General) Act 2005, certified that the Security Indicator of thirty-two letters, numbers and symbols on the photographs had been produced by MD5 algorithm.
[6] In determining the appeal, I did not have regard to the Magistrate’s reasons for judgment.
[7] On 22 August 2006, I gave judgment on the appeal. A copy of that judgment is attached to this Case Stated.”

3 The four questions of law that his Honour submitted for determination are:

“(a) Did I err in law in holding that the appeal before me was a hearing de novo on the transcripts and such other fresh evidence as allowed by leave?
(b) Did I err in law in holding that, for the purposes of s47(3)(b) Road Transport (Safety and Traffic Management) Act 1999, the testimony of the appellant that he was driving below the applicable speed limit was capable of being evidence to the contrary of a matter shown or recorded on the photograph?
(c) Did I err in law in holding that, for the purposes of s47(3)(b) Road Transport (Safety and Traffic Management) Act 1999, the phrase ‘evidence to the contrary is adduced’ is not a requirement that the appellant establish as a reasonable possibility that he was travelling at a speed less than the speed appearing on the photograph?
(d) Did I err in law in holding that, for the purposes of s46(2) Road Transport (Safety and Traffic Management) Act 1999, the testimony of the appellant that he was driving below the applicable speed limit was capable of being evidence that the approved speed measuring device was not accurate or not reliable?”

Question (a)

4 In his judgment in this matter, Nicholson DCJ said:

“[4] The appellant’s case is that the learned judge below fell into error because he incorrectly applied the provisions of s46 and 47 of the Road Transport (Safety and Traffic Management) Act of 1999. The appellant 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 The appeal was brought to the District Court under Pt 3 of the Crimes (Local Courts Appeal & Review) Act 2001. Such an appeal cannot be accurately described as a “hearing de novo”. There is clear authority for this proposition, which was accepted to be correct by both parties on this appeal. (See Gianoutsos v Glykis (2006) 162 A Crim R 64 at 69-70, [24]-[31]; Di Natale v Kelly [2006] NSWCCA 201 at [18] and [85]-[87]; Charara v The Queen [2006] 164 A Crim R 39 at [15]-[18].)

6 The Respondent submitted to this Court that the error was merely one of nomenclature and that all that his Honour was intending to do was to contrast the hearing in which he was engaged with an appeal limited to an error of law. Nevertheless, the characterisation was inaccurate. His Honour has posed the question. It is appropriate that it be answered. The answer should be: “Yes”.

Question (b)

7 The question turns on the interpretation of s47(3) of the Road Transport (Safety and Traffic Management) Act 1999 (“the Act”) which I will set out below.

8 At the trial, as set out above in the extract from the Stated Case, the Crown relied on a photograph which indicated that the Respondent was travelling at 93kph. However, the Respondent gave evidence that he was travelling below the speed limit. It was this conflict of evidence that gives rise to the issue of statutory interpretation which is the basis of Question (b).

9 In his reasons, which are appended to the Stated Case, his Honour set out s47 and s46 of the Act and referred to the judgments of Hoeben J in Roads & Traffic Authority of New South Wales v Nichols [2005] NSWSC 946 and of Adams J in Roads & Traffic Authority of New South Wales v Michell [2006] NSWSC 194.

10 The relevant passage of his Honour’s reasons is as follows:

“[26] I turn now to consider s47(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 Michell [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 s47(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.”

11 His Honour further concluded:

“[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 s29 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 s46(2) and s47(3) 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 s46(2) and s47(3)(b) of the Road Traffic (Safety and Management) Act ). In the event, the Prosecution has failed.”

The Statutory Scheme

12 Sections 46 and 47 provide relevantly:

“46(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 an 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 the 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.
…
47(1) In proceedings for an offence of driving at a speed in excess of a speed limit imposed by or under this Act or the regulations, evidence may be given for a measurement of speed obtained by the 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 by 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 the matters shown or recorded on the photograph.
(4) When the photograph taken by an approved camera recording device (other than an approved digital camera recording device) is tendered in evidence, a certificate purporting to be signed by a police officer and certifying the following particulars is also to be tendered in evidence and evidence (unless evidence to the contrary is adduced) of those particulars:
(a) that the officer is authorised by the Commissioner of Police to install and inspect approved camera recording devices,
(b) that within 168 hours before the time and day recorded on the photograph as the time at which and the day on which the photograph was taken, the officer carried out the inspection specified in the certificate on the approved camera recording device that took the photograph,
(c) that on that inspection the approved camera recording device was found to be operating correctly.
(5) When the photograph tendered in evidence is taken by an approved digital camera recording device, a certificate purporting to be signed by an authorised person and certifying the following particulars is also to be tendered in evidence and is evidence (unless evidence to the contrary is adduced) of those particulars:
(a) that the person is an authorised person,
(b) that within 30 days (or such other period as may be prescribed by the regulations) before the time and day recorded on the photograph as the time at which and the day on which the photograph was taken, the person carried out the inspection specified in the certificate on the approved digital camera recording device that took the photograph,
(c) that on that inspection the approved digital camera recording device was found to be operating correctly.”

13 Furthermore, s44(1) and s45(1) and (2) provide:

“44(1) In this Act, an approved speed measuring device is a device of a type approved by the Governor by order published in the Gazette as being designed to measure the speed at which a vehicle is travelling.
…
45(1) In this Act, an approved camera recording device is a device of a type approved by the appropriate approval authority by order published in the Gazette as being designed for attachment to an approved speed measuring device for the purpose of taking photographs of vehicles being driven in excess of speed limits and for recording on any such photograph:
(a) the speed at which any such vehicle is travelling (as measured by the approved speed measuring device
…
(2) In this Act, approved digital camera recording device is an approved camera recording device that is capable of recording images in the form of digitalised, electronic or computer-generated images.”

14 These sections are contained in Div 2 of Pt 3 of the Road Transport (Safety and Management) Act 1999 (“the Act”). The Part is headed “Speeding and other dangerous driving”. The Division is headed “Speed measurement”.

15 It is well established in Australian law that statutory interpretation requires a Court to have regard to the context of the legislation in the first instance and not merely after some kind of ambiguity is established. (See e.g. CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].)

16 Both the immediate context of Pt 3 and the broader context of the whole statute indicate that the object of the Act is to promote road safety. This object is expressly stated in s3(c) as “to improve safety … of transport on roads”. Part 2 of the Act is concerned with alcohol and drug use. It establishes offences such as driving with more than the prescribed concentration of alcohol and contains provisions for breath testing and blood analysis. Part 3 is a broadly similar regime with respect to speed. Part 4 of the Act is concerned with traffic control devices including traffic lights. Part 5 of the Act is concerned with vehicle safety and accidents. Clause 1(c) of Sch 1 of the Act states that regulations may be made for the regulation of “speed limits for vehicles”. Such regulations have been made, relevantly r20 of the Australian Road Rules.

17 In approaching the task of statutory interpretation now before the Court it is pertinent to note the requirements of s33 of the Interpretation Act 1987:

“33 In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”

18 The safety context of the whole statute manifests the overall purpose of the legislative scheme.

19 The particular purpose of Pt 3 Div 2 is to establish a regime for the regulation of devices for measuring speed and for employing such devices to provide evidence of speed in prosecutions for offences. The object is to increase safety on the roads and deter contraventions by the development of objective and technical means of detection of a high level of reliability, known to be such by the public.

20 When what is now s46 was inserted as s4AB of the Traffic Act 1909, by the Motor Traffic (Radar Detected Offences) Amended Act 1987, the Second Reading Speech included the following:

“To prosecute these cases effectively, highly-trained police radar experts are required to attend court to give oral evidence as to the accuracy and reliability of the radar devices used. This places a significant strain on limited police resources and is an extremely costly means of validating the evidence provided by equipment which has proved its reliability and accuracy under a wide range of operating conditions over many years. A further disadvantage of the present arrangement is that, despite recent improvement in staff levels, there are still occasions when qualified police radar experts cannot be made available for court attendances. In these instances the prosecution is compelled to rely either on evidence of estimated speed, which thereby weakens its case, seek an adjournment of proceedings until a later date, or offer no evidence and seek permission to withdraw the information. These situations promote criticism of the police and frequently lead to costs being awarded against the Police Department. In order to remedy these difficulties and to ensure that scarce police resources are used in the best interests of the community, it is proposed that approved radar speed measuring devices be recognized as accurate instruments in the say way as breath analysis equipment.”

21 When what is now s47 was inserted as s4AC of the Traffic Act 1909, by the Traffic (Photographic Evidence) Amendment Act 1990, the Second Reading Speech included the following:

“The purpose of the legislation before the House is to amend the Traffic Act to improve road safety through the use of new technology which will enhance speed limit enforcement. The proposed amendments will enable more effective use to be made of automatic speed measurement devices, such as slant Doppler radar units, by using them in conjunction with special purpose cameras to provide photographic evidence of speeding offences. Radar, particularly slant Doppler, has proven to be a valuable enforcement tool and is widely used in various jurisdictions within Australia and overseas. Challenges as to its accuracy and reliability have been successfully refuted and public recognition of its effectiveness is evident from the very small number of radar-detected speed matters which are contested.
…
A major element of the bill is the acceptance by courts of a photograph of an offending vehicle as prima facie evidence of a speeding offence, and also as evidence at an inquest or in connection with proceedings for an indictable offence. The photograph will be imprinted with particulars of the offence and supported by a certificate as to the correct operation of the camera radar unit … Honourable members will appreciate that the Government has announced its intention to introduce this legislation in an endeavour to further reduce the road toll by deterring drivers from disobeying speed limits …”

The Meaning of Evidence to the Contrary

22 His Honour’s approach to the interpretation of the section is reflected in his reasons as follows:

“[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 s47(3)(b) are to be understood as acknowledging that proposition in circumstances where ‘evidence to the contrary is adduced’.”

23 His Honour’s reasoning was supported by the Respondent in this Court. Further, the Respondent submitted that the relevant provisions of the Act were penal in nature and should be interpreted in accordance with established principles concerning such statutes. Reliance was placed on Re Bolton; ex parte Beane (1987) 162 CLR 514. It appears that the Respondent invokes the old concept that penal statutes should be strictly construed.

24 The Act penalises conduct in order to achieve a beneficial purpose. In my opinion the approach of the High Court in Waugh v Kippen (1986) 160 CLR 156 at 164-165 is a more appropriate general approach to the interpretation of the Act. In this case, as in Waugh v Kippen, the dominant purpose of the Act is one of safety. As their Honours said at 165 with respect to the proposition that a penal statute should be strictly construed: “In such a context the strict construction rule is indeed one of last resort”. (See Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 109-110 and the recent review of the authorities in R v Lavender [2005] 222 CLR 67 at [87]-[94].)

25 Mr S Odgers SC, who appeared for the Appellant, submitted that “evidence to the contrary”, within s47(3)(b), is limited to evidence tending to prove that the speed recorded on the photograph was not the speed as measured by the approved speed measuring device. This could arise because of some technical defect in the transfer of information from that device to the photograph by the approved camera recording device. He submitted that evidence from, for example, the driver, that the vehicle was travelling at a different speed was, accordingly, not “evidence to the contrary” of the evidence that the speed recorded in the photograph was the speed “as measured by the approved speed measuring device” (applying the terminology of s45(1)(a) which is set out above.)

26 Mr Odgers SC accepted that such evidence, including the evidence of the Respondent in this case, was admissible and could, in an appropriate case, result in the Court dismissing a prosecution notwithstanding the evidence on a photograph.

27 The provision for the admissibility of the evidence is s47(1). That subsection permits evidence to be given of “a measurement of speed”. That measurement is identified as having been “obtained by the use of an approved speed measuring device”. The role and function of the “approved camera recording device” is only to “record” the “speed” so obtained.

28 The Act contains distinct, albeit interconnected provisions for speed measuring devices and camera recording devices.

29 A speed measuring device, as its title suggests, is “designed to measure the speed” (s44(1)). A camera recording device is designed as an attachment to a speed measuring device (s45(1)) “for the purpose of taking photographs of vehicles being driven in excess of speed limits”. Such a device, again as its title suggests, has the purpose of “recording on [a] photograph” (s45(1)) certain information. The relevant information is, as set out in s45(1)(a) “the speed at which any such vehicle is travelling” but (and this distinction is relied upon by the Appellant) the record is of the speed “as measured by the approved speed measuring device”.

30 By force of s47(2)(a), s46 applies with respect to “the accuracy or reliability of the approved speed measuring device”. That section provides for the admissibility of a certificate concerning the accuracy and operation of the device.

31 By s47(2)(b), ss47(3)-(5) apply in relation to an approved camera recording device. Subsections (4) and (5) provide for the tender of a certificate which relevantly states that the device was “operating correctly”.

32 The question posed in the Stated Case directs attention to s47(3)(b). That section provides for the tender of a photograph which “records” certain “matters”. The photograph becomes evidence of a record of, to use the terminology of s47(1), the “measurement of speed obtained by the use of an approved speed measuring device”. The photograph is a “record” of the measurement. However, as both s49(1) and s45(1)(a) make clear that “record” is of a speed “as measured by” an approved speed measuring device.

33 The tender of a photograph is evidence of the matters recorded upon it. What is so recorded is not “speed” simpliciter, but “speed as measured by” a measuring device. By s47(1) what is made admissible is “measurement of speed obtained by the use of” a measuring device.

34 In this respect it is significant that evidence, such as the Respondent’s evidence in the present case, must be taken into account on the ultimate issue of whether an offence has been proven beyond reasonable doubt. Section 27(3)(b) provides that a photograph constitutes “evidence” of a particular matter. It does not create a presumption of accuracy. The word “evidence”, in the formulation “evidence to the contrary”, is used in a different sense to the first use. The reference is not to “evidence” about a “matter”, but to evidence directed to the quality of the photograph as evidence. That is why the qualification in parentheses appears immediately after the word “evidence”, rather than, as in s47(3)(a) at the end of the paragraph.

35 The reference to “evidence to the contrary” in s47(3)(b) must, in my opinion, be evidence to the contrary of matter recorded on the photograph. That directs attention to the “speed as measured” not to the “speed” itself. Accordingly, I agree with the Appellant’s submission that the reference to “evidence to the contrary” is directed to evidence concerning the accuracy of the record, not to the accuracy of the speed measured by the speed measuring device.

36 In my opinion, this interpretation better serves the purpose of protecting the safety of the community by facilitating prosecutions for breach of speed limits, in the manner envisaged in the two Second Reading Speeches set out above. I can see no purpose of the statutory scheme that is served by adopting an interpretation which, to use the examples of Adams J in Michell supra, would result in a section facilitating the tender of technical evidence being displaced by evidence that is “slight or unconvincing” ([15]) or even evidence which is “disbelieved” ([16]). I agree with the observations of Kellam J in Director of Public Prosecutions v Cummings [2006] VSC 327 esp at [35].

37 Question (b) should be answered: “Yes”.

Question (c)

38 The Appellant contends that if the answer to Question (b) is “Yes”, then it is unnecessary to answer Question (c). I do not understand the Respondent to contend to the contrary. A positive answer to Question (b) does dispose of the matter. Accordingly, the question should be answered: “Unnecessary to Answer”.

Question (d)

39 In addition to par [29] of his Honour’s reasons, which I have set out above, it is pertinent to Question (d) to set out [24] and [25]:

“[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 s46(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.”

40 It appears from the formulation of the question that his Honour, Judge Nicholson SC, was of the view that the testimony of the Respondent was “evidence that the device was not accurate or not reliable”. His Honour did not say so expressly, but it is implicit in his Honour’s reasoning. His Honour proceeded on the basis that it was necessary for the prosecution to prove beyond reasonable doubt that the approved speed measuring device was accurate and reliable when it measured the speed of the Respondent’s car.

41 I have set out s46 above. The Appellant emphasises that s46(2) requires evidence that the device “was not accurate or not reliable”. Mr Odgers SC sought to distinguish the formula of “was not accurate” with an alternative formula that the section does not adopt, i.e. “may not have been accurate”. I do not find this distinction useful.

42 Mr Odgers also submitted that what was required was some kind of evidence that relates directly to the approved speed measuring device, i.e. that that device was not accurate or not reliable.

43 Mr Odgers submitted that the purpose of s46 is to ensure that, in normal circumstances, the courts can proceed on the basis that a speed measuring device, which has been properly tested and sealed (s46(1)(b)), is accurate and reliable. Accordingly, the section should be interpreted so that the evidence that the device “was not accurate or reliable” must relate directly to the device.

44 Mr P Hamill SC, who appeared for the Respondent, submitted that upon the proper interpretation of the section, the presumption of accuracy and reliability can no longer apply once there was evidence that the Appellant was travelling at a slower speed than that asserted by the device. He did not support the reasoning of Adams J that any evidence would be sufficient.

45 Again it is important to bear in mind that evidence that a vehicle was travelling at a lower speed than that measured by a speed measuring device is admissible on the ultimate issue of whether an offence has been committed.

46 Section 46(2) was designed to ensure that police expert resources were not tied down in numerous proceedings where no real issue of a technical character had arisen. (See the first of the two Second Reading Speeches extracted at [20] above.) Section 46(1) is not a provision relating to the admissibility of evidence of speed. It is concerned with evidence of “accuracy and proper operation”.

47 Section 46(2) states that further evidence of accuracy or reliability “is not required”. It is not concerned with proof of the speed as measured.

48 Section 47(2)(a) applies s46 to “proceedings” in which “evidence … of a measurement of speed” which has been “obtained” and “recorded” is “given”. The provisions so applied are the provisions “relating to the accuracy and reliability of the approved speed measuring device”. Again, the focus is not on the product, i.e. the measurement of speed, but on the device as such.

49 In my opinion, “evidence that the device was not accurate or not reliable”, within the meaning of s46(2) must be evidence relating to the device as such, not to the product of the application of the device in the form of one or more measurements of speed.

50 Question (d) should be answered: “Yes”.

Costs

51 The Appellant has been successful but, acknowledging that it has an interest in resolving the questions posed going beyond the present case, it does not seek an order for costs. The Respondent, however, seeks an order for costs even if, as has transpired, the Appellant succeeds. Alternatively the Respondent seeks a certificate under the Suitors’ Fund Act 1951.

52 It is common ground that in a stated case brought pursuant to s5B of the Criminal Appeal Act 1912, this Court has the power to award costs. The Appellant did not seek an order remitting the matter to the District Court, if it should succeed on the answers to the questions posed by Nicholson DCJ. On that basis the order of Nicholson DCJ will stand.

53 It appears from the submissions that counsel for the Respondent enquired of counsel for the Appellant whether an order for remission was sought. He did so on the day before the hearing. No doubt both parties could have turned their mind to this question a considerable time before.

54 The Respondent submits that if he had known earlier of the intention not to seek any order that could affect him, then he may have chosen to appear unrepresented or may have filed a submitting appearance. If that had occurred, of course, this Court would have been placed in the difficult position of not having submissions on both sides of the issue and may have had to see that alternative arrangements were made.

55 The attitude taken to the issue of remission by the Appellant is an entirely appropriate one. It does, however, serve to highlight the “test case” aspect of the proceedings. It plainly has a considerable interest in the answers to the questions. In the event the Respondent has little if any interest in the answers.

56 In my opinion the discretion to award costs should be exercised. Accordingly I propose an order that

1 The Appellant pay the Respondent’s costs.

57 BELL J: I agree with Spigelman CJ.

58 HOWIE J: I agree with Spigelman CJ.

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