Robert James Fudge v Karen Mary White No. SCRG 92/2777 Judgment No. 3818 Number of Pages 6 Vehicles and Traffic

[1993] SASC 3818

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA APPEAL FROM A COURT OF SUMMARY JURISDICTION AT ADELAIDE COX J

CWDS
Vehicles and traffic - weight to be carried by vehicles and width of tyres - Road Traffic Acts.146 - charge of driving overweight vehicle - extent to which prosecution may rely on evidentiary statement under Road Traffic Act 5.175 - whether power to amend statement after received in evidence - effect of minor inaccuracies in weighing instruments. Road Traffic Acts.146. Camerotto v McDonald (1984) 36 SASR 66; South Australia v Victoria (1914) AC
283; Perth v Linnane (1983) 33 SASR 442; Kosovich v. Mancini (1983) 34 SASR
321; Dann v. Stirzaker (1988) 50 SASR 190 and Pease v. White Millhouse J. 6/9/91 unreported, discussed.

HRNG ADELAIDE, 26 January 1993 #DATE 4:3:1993
Cousel for appellant:         Mr J M Mitchell
Solicitors for appellant:     Matthew Mitchell
Counsel for respondent:        Ms Baumanis
Solicitors for respondent:     Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 COX J The appellant was charged on complaint with having on 21 May 1991 near Yunta been the driver of an overloaded vehicle, namely, an articulated motor vehicle comprising prime mover SA UVK-507 and semi-trailer SA TAY-692: contrary to reg.4(1)(a) of the Road Traffic (Mass Limits) Regulations 1989 and ss.146(1)(a) and 146(2) of the Road Traffic Act 1961. The particulars given on the complaint are that the vehicle exceeded its permitted gross mass of 42.5 tonnes by 2.65 tonnes: contrary to Schedule 1 of the Regulations. The matter was heard in the Adelaide Magistrates Court. The defendant pleaded not guilty. The prosecuting solicitor tendered certain documents, called a traffic inspector, Mr Kammermann, and closed her case. Mr Mitchell, for the defendant, submitted that there was no case for his client to answer. Then the prosecutor was given leave to reopen her case in order to prove the serial number of a particular weighing instrument and to amend a statement (Exhibit P1) that had already been received in evidence. Mr Mitchell resumed his submission of no case and said that he would not be calling evidence. There was further argument and the learned Magistrate reserved his decision. Later, in a carefully reasoned judgement, he dealt with each of Mr Mitchell's points. He held that Exhibit P1 was admissible and he declined to exclude it on discretionary grounds. He found the charge proved. The defendant was convicted and fined. 2. The appeal against conviction is restricted to the errors and omissions and uncertainties in Exhibit P1. In my opinion the particular grounds of appeal and the argument that I heard could not provide an answer to the case mounted by the prosecution. It is necessary to understand clearly what that case was. 3. The charge was brought under s.146 of the Road Traffic Act, sub-s.(1) of which reads -
    "A person must not drive a vehicle if -
    (a) the mass of the vehicle;
    (b) the combined mass of the vehicle and any vehicle attached
    to it;
    or
    (c) the mass carried on an axle, or group of axles, of the
    vehicle, or of any vehicle attached to it, exceeds the maximum
    prescribed by regulation or fixed by the Registrar of Motor
    Vehicles pursuant to the regulations." 4. Sub-section (2) deals with the matter of penalty. Regulation 4(1)(a) of the Road Traffic (Mass Limits) Regulations 1989 (Gazette, 29 June 1989, p.1823 as amended the following year - Gazette 25 October 1990, p.1304) provides -
    "(1) The mass of a vehicle must not exceed -
    (a) the mass set out in schedule 1 in respect of that vehicle;
..." 5. Other parts of the Regulations deal with mass limits on axles or groups of axles and the determination of mass limits by the Registrar of Motor Vehicles. Schedule 1 is in the form of a table showing various distances (in metres) between the foremost and rearmost axles of a vehicle or combination of vehicles on a sliding scale with a corresponding column indicating the respective mass limits in tonnes. The relevant entry for present purposes stipulates that, where the distance between the axles exceeds 10 metres, the limit is 42.5 tonnes. 6. As Mr Mitchell observed, it is now possible for the prosecution to prove many of these overloading cases without calling a single witness. That, as it seems to me, was the case here. I have already set out the substance of the complaint. The allegation in it that the defendant was the driver of the vehicle specified in the complaint was, by sub-s.(1) of s.175 of the RoadTraffic Act, made proof of that matter in the absence of proof to the contrary. For the rest the prosecution could rely upon sub-s.(3) of s.175 which gives the prosecutor a large number of evidentiary aids. The sub-section begins -
     "In proceedings for an offence against this Act-
    (a) a statement produced by the prosecution and purporting to
    be signed by a member of the police force or an inspector and
    stating -
    (i) the mass of a vehicle with or without its load;
    (ii) the mass carried on an axle, or group of axles, of a
    vehicle;
    (iii) the dimensions or measurements of a vehicle or its load,
    or any part of a vehicle or its load;
    (iv) that a wheel or tyre of a vehicle is of a specified type
    or class;
    or
    (v) that a vehicle has, or does not have, a specified
    mechanical part, or system, of a specified type or class, is
    proof of the fact so stated in the absence of proof to the
    contrary..." 7. Succeeding paragraphs in sub-s.(3) provide for other types of evidentiary statements. 8. Exhibit P1, as originally tendered, read as follows -
    "STATEMENT PRODUCED BY THE PROSECUTION PURSUANT
TO SECTIONS 175(3)(a), 175(3)(ab) AND 175(3)(ac) ROAD TRAFFIC
    ACT, 1961
    I, TREVOR DEAN KAMMERMANN, an Inspector appointed under the Road
    Traffic Act, 1961 of Port Augusta in the State of South
    Australia DO HEREBY STATE that at about 1.15 am on the 21st day
    of May, 1991 near Yunta in the said State:
    1. I was in charge of the following Haenni Wheel Load Scales
    WL100, namely:- Serial Nos: 12462 12463 12466 3257 418 2286 all
    of which were approved instruments for determining mass under
    the Road Traffic Act, 1961.
    2. I used the instruments stated in paragraph 1 above to
    determine the combined mass of a vehicle comprising prime-mover
    SA UVK-507 and semi-trailer SA TAY-692 (hereinafter referred to
    as the "said vehicle") and state that the mass of the said
    vehicle with its load was 45.15 tonnes. I measured the distance
    between the centre of the hub of the wheel of the foremost axle
    and the centre of hub of the wheel of the rearmost axle and
    found that distance to be 14.95 metres.
    3. On the 21st day of May 1991 the instruments for determining
    mass referred to in paragraph 1 of this statement and used by me
    as set out in paragraph 2 of this statement complied with the
    requirements of the Road Traffic Act, 1961 and the Road Traffic
    Regulations, 1962 made under that Act.
    4. I complied with the requirements of the Road Traffic Act,
    1961 and the Road Traffic Regulations, 1962 made under that Act
    in relation to taking of the measurements of mass referred to
    in paragraph 2 of this statement.
DATED this thirteenth day of October 1992 (Sgd) T.D. Kammermann" 9. There were a lot of separate statements contained within this document but the prosecution needed only two of them, both in par.2, to make out its case against the defendant - that the mass of the vehicle with its load was 45.15 tonnes, and that the distance between the two axles was 14.95 metres. Those allegations were given evidentiary force by sub-paras. (i) and (iii) respectively of par.(a) of sub-s.(3) of s.175. (I think a statement of the distance between two axles of this vehicle is a statement of the dimensions or measurements of a part of the vehicle, but I did not hear argument about it. It does not matter, because the witness Kammermann gave the measurement again in his oral evidence.) The effect of those statements was to throw onto the defendant the burden of proving on the balance of probabilities that one or both of those statements was wrong. In fact he gave no evidence on those subjects - he gave no evidence at all - and there was nothing in the prosecution evidence, oral or documentary, that provided evidence to the contrary. The defendant's conviction was therefore inevitable. He did, through his counsel, raise with the Magistrate certain other matters, and Kammermann was cross-examined about some of them, but they lay outside the only issues that were raised by the charge that the defendant was facing. 10. Strictly speaking, that is enough to dispose of the appeal. However, I should say something about certain points made by Mr Mitchell. 11. I have set out Exhibit P1 in its original form. However it was realized in the course of the hearing that the specification of a serial number "418" in par.1 was a mistake. It should have been "4180." The learned Magistrate allowed Mr Kammermann to take back the exhibit and alter the paragraph so that it read "4180." The witness initialled the alteration and also put his initials at the bottom of the statement. It was submitted that this alteration was ineffectual for two reasons. First, once it was shown that there was an error in any part of the statement, the validity of the statement as a whole was undermined. I reject that submission. I see no reason why a series of evidentiary statements of the kind contemplated by s.175 should not be treated separately, so far as any errors are concerned, notwithstanding their being contained within the one document. Secondly, Mr Mitchell argued that, once the statement had been tendered in evidence, the learned Magistrate had no power to allow the person who made it to alter it. I do not see why not. It is a nice question whether the alteration made it another statement which had then to be signed afresh, but the witness put his initials alongside the alteration and also at the foot of the document and it was not suggested to me that this was insufficient. The defence also objected to the learned Magistrate allowing the alteration to be made and Exhibit P1, in effect, to be tendered again after the close of the complainant's case and while Mr Mitchell was making his no case submission. In my opinion, it was within the Magistrate's discretion to allow this additional evidence to be tendered, to correct what was pretty obviously a mere transcription error, even at that stage of the proceedings. Camerotto v. McDonald (1984) 36 SASR 66. 12. There was argument, indeed a degree of uncertainty, about the respective model numbers of the 6 Haenni mobile scales that were used by the inspectors to weigh the defendant's loaded vehicle. Exhibit P1 says that all six scales were of the model WL100. However the prosecution put in a number of certificates by the Commissioner of Standards, admissible under par.(bb) of s.175(3), which described certain Haenni wheel load scales, having serial numbers that corresponded with three of the numbers specified in par.(1) of Exhibit P1, as being model WL101. Mr Mitchell argued that this was another invalidating defect in Exhibit P1 and should have led to its rejection. The learned Magistrate held against him on the ground that both models, WL100 and WL101, were approved instruments for determining mass under the Road TrafficAct so that the misdescription of any of them as model WL100 was immaterial. At any rate he considered that the serial numbers were alone sufficient to identify the six scales without resort to their model numbers. 13. I am not sure about the validity of that alternative ground, but it does not matter. The Magistrate was entitled to find on the whole of the evidence that each of the six scales, being either model WL100 or WL101, was an approved instrument. The possible misdescriptions as to model number did not invalidate the statements. Besides, none of this really had any proper bearing on this particular prosecution because there was nothing in par.1 of Exhibit P1 that the prosecution needed in order to make out its case against the defendant. The same may be said of the certificates of the Commissioner of Standards to which I have referred. The demonstration of error or uncertainty in par.1 could not assist the defendant in discharging the burden he carried under s.175 of disproving either of the two statements in par.2 of Exhibit P1 that alone mattered. 14. Then it was said that the certificates of the Commissioner of Standards (Exhibit P2) proved the contrary of the allegation as to mass made in Exhibit P1, because the tests described in the certificates showed a very small percentage error in some of the scales. For instance, when Haenni Wheel Load Scale WL100 No. 2286 was tested on 26 March 1991, the corrected mean of three test loads of 10 tonnes each was 9.95 tonnes. On 14 April 1992 a similar test on the same machine gave a mean reading of 9.94 tonnes. Assuming that this shows a certainty or a likelihood, not just a possibility, of a similar error when the same instrument was used in the weighing of the defendant's vehicle on 21 May 1991, I do not think that the presumption created by Exhibit P1 was thereby displaced. True, there is a sense in which it could be said that there must be a reasonable doubt whether a statement as to the weight of the vehicle that was based in part on the use of this instrument was absolutely accurate, but I do not think that absolute accuracy is the appropriate test. No weighbridge or mobile scales, even if generally regarded as sufficiently accurate from a practical point of view for this kind of work, is ever likely to be absolutely accurate as a scientist understands that term. The same could be said about any attempt for the purpose of s.175 to state the dimensions or measurements of a vehicle or its load. It is very unlikely that Parliament intended to make the admissibility or efficacy of a statement under s.175 dependent upon the absolute accuracy of the statement in this respect. Indeed, the wording of s.175(3)(bb) - "accurate to the extent indicated in the document" - implies that a relative degree of accuracy may be acceptable. Cf. South Australia v. Victoria (1914) AC 283, at 305-8; Pereth v. Linnane (1983) 33 SASR 442; Kosovich v. Mancini (1983) 34 SASR 321, at 330-1. The defendant was charged with being 2.65 tonnes overweight. The percentage errors described in the certificates P2 were small and could not have provided the defendant in this case with a defence to the charge of driving an overweight vehicle. Any error or reasonable possibility of error unfavourable to the defendant could be taken into account when fixing the penalty. As I have indicated, the learned Magistrate was correct, in my opinion, in declining to find that the defendant had proved on the balance of probabilities that the allegation as to mass in Exhibit P1 had been proved to be inaccurate. 15. Mr Kammermann was not a comfortable or obviously accurate witness. It is said that his evidence showed that he had no accurate knowledge of the precise type of weighing device he was using. However, for the reasons that I have given, this could not assist the defendant. The same may be said of any possible application to the expression "person in charge of a weighbridge" in pars.(ab) and (ac) of sub-s.(3) of s.175 of the questions discussed by the Full Court in Dann v. Stirzaker (1988) 50 SASR 190. This argument relates to par.3 of Exhibit P1 but the prosecution did not need to rely on par.3 to make out its case of overloading. It would have saved itself and everyone else a lot of trouble, not to say raised expectations or at least hopes on the defendant's part, had it confined its evidentiary statements under s.175 to those it needed to make out its case. 16. Finally, there is ground 2 in the notice of appeal, with respect to Exhibit P1 - "That the evidentiary assistance afforded by the said certificate is so great that any ambiguity or error ought to be strictly resolved in favour of the defendant." The argument was put in different ways. Because the Regulations empower an inspector to stop a vehicle and weigh it and then use the evidence thus gained in a prosecution of the owner or driver, the court (it was said) should reject any evidentiary statement that is based upon such an exercise if the prosecution does not show that the inspector was using an approved weighing instrument, and there was no satisfactory proof of that sort in this case. I have dealt with that particular submission. Then there were the internal deficiencies or inaccuracies in Exhibit P1 that I have also discussed. It was submitted that s.175 should be interpreted as making the reception of an evidentiary statement conditional upon an adequate acquaintance by the inspector in question with the instruments he is using; and that the court's general discretion with respect to fairness is enough to accommodate this gloss on s.175. I am afraid that I cannot accept this submission. No doubt evidentiary sections of this sort can sometimes cause hardship to a defendant. Whether the court can do anything to relieve the hardship in any particular case is not a matter that realistically arises in the present appeal. There is no reason at all, from a reading of these papers, to suppose that the defendant was not guilty of the offence with which he was charged. 17. I should say that many of Mr Mitchell's points in this case were taken by him in a similar appeal that was heard by Millhouse J. in 1991 (Pease v. White, 6 September 1991, unreported), and with the same result. 18. No argument was addressed to me as to the relation between s.175(3) and s.148(2) of the Road Traffic Act. The latter replaces the old s.34 and is to substantially the same effect. Each of the present provisions provides an evidentiary aid to the proof of the mass of a vehicle or its axles. Section 175(3) requires a mere statement, s.148(2) proof of an actual determination of the mass made in accordance with the regulations. I see no reason to limit the meaning or operation of s.175(3) by reason of s.148(2) - cf. Kosovich v. Mancini, supra - but in the circumstances I offer no firm opinion about it. 19. The appeal must be dismissed.