RTA v Field

[2005] NSWSC 606

CITATION:	RTA v Field [2005] NSWSC 606 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	21/06/05
JUDGMENT DATE :	24 June 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Kirby J
DECISION:	1) That the orders of the Local Court at the Downing Centre, 143-147 Liverpool Street, Sydney, made on 23 February 2005 dismissing: (a) the proceedings commenced by the Court Attendance Notice issued by the Plaintiff against the Defendant on 17 June 2004 in respect of a speeding offence alleged to have been committed on 8 March 2004 at Mosman (the 'First CAN'), and (b) the proceedings commenced by the Court Attendance Notice issued by the Plaintiff against the Defendant on 17 June 2004 in respect of a speeding offence alleged to have been committed on 24 March 2004 at Mosman (the 'Second CAN') be set aside; (2) That the Local Court at the Downing Centre resume the hearing of each of the above proceedings and determine each according to law; (3) No order as to costs.

CATCHWORDS:	Appeal against decision of Local Court Magistrate - camera speeding offences - reliability of camera and speed measuring devices - statutory scheme to prove reliability - certificates - presumption of continuance - misdirection as to statutory scheme - proper plaintiff.
LEGISLATION CITED:	Road Transport (Safety and Traffic Management) Act 1999 Road Transport (Safety and Traffic Management (Road Rules)) Regulations 1999 Road Transport (General) Act 1999 Crimes (Local Courts Appeal and Review) Act 2001 Criminal Procedure Act 1986
PARTIES:	Roads & Traffic Authority (Pl) Richard Arthur Osgood Field (Def)
FILE NUMBER(S):	SC 11096/2005
COUNSEL:	T Lynch (Pl) No appearance (Def)
SOLICITORS:	Hunt & Hunt (Pl) No appearance (Def)

LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Maloney LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID KIRBY

Friday 24 June 2005

11096/2005 - ROADS & TRAFFIC AUTHORITY v RICHARD ARTHUR OSGOOD FIELD

JUDGMENT

1 KIRBY J: The Roads & Traffic Authority (the RTA) appeals against the dismissal by a Local Court Magistrate of certain charges against Mr Richard Field. The charges were set out in two Court Attendance Notices which alleged a number of speeding offences.

2 In respect of each notice, the prosecution case was based upon a photograph of a vehicle owned by Mr Field, taken by a camera installed by the Roads & Traffic Authority pursuant to the Road Transport (Safety and Traffic Management) Act 1999. Such cameras are to be found throughout the Sydney metropolitan area. The camera which captured the image of Mr Field's vehicles was located between Ourimbah and Montague Roads, Mosman. There is a school within that area. From 2.30 pm each school day the speed limit is moderated to 40 kph. On 8 March 2004, at 2.34 pm, a vehicle owned by Mr Field was photographed at a time when the recorded speed was 51 kph. Some two weeks later, on 24 March 2004, at 2.39 pm, another vehicle owned by Mr Field was photographed by the same camera when travelling at 48 kph.

3 On 16 November 2004, Michael Morgan, as prosecutor for the RTA, issued two Court Attendance Notices against Mr Field, requiring his attendance at the Downing Centre Local Court. Each notice alleged that he had committed an offence of exceeding the speed limit by 15 kph or under.

The Statutory Scheme.

4 Under the Road Transport (Safety and Traffic Management) Act 1999, provision is made for the installation and operation of two devices designed to detect speeding offences. The first is "an approved speed measuring device" (s44(1) of the Act) and the second "an approved camera recording device" (s45(1)). Where the speed measuring device detects a vehicle exceeding the speed limit, the approved camera recording device takes a photograph of the vehicle, recording on the photograph the following information (as set out in s45(1)):

"(a) the speed at which any such vehicle is travelling (as measured by the approved speed measuring device), and
(b) the date on which the photograph is taken, and
(c) the time and location at which the photograph is taken, and
(d) the speed limit that, in accordance with the regulations, is applicable to the length of road or road related area at which the photograph is taken, and
(e) the direction in which the vehicle is travelling (that is, towards or away from the device)."

5 The legislation recognises the obvious need for such devices to be accurate. It therefore requires that they be periodically checked. In the case of the approved speed measuring devices, that check must take place every 12 months, as prescribed by the Road Transport (Safety and Traffic Management (Road Rules)) Regulations 1999, Reg 156(c). The camera recording devices, on the other hand, must be checked and certified as accurate within 30 days before the day recorded on the photograph relied upon in the particular prosecution (s47(5)(b) Road Transport (Safety and Traffic Management) Act 1999).

6 The Act makes provision for certificates to be admitted into evidence, where signed by authorised officers, certifying that each device has been tested and found to be accurate. Section 46 of the Road Transport (Safety and Traffic Management) Act 1999, dealing with approved speed measuring devices, is in these terms:

"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.
46(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.
46(3) ....."

7 In respect of approved camera recording devices, s47(5) makes the following provision:

"47(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 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."

The hearing in the Local Court.

8 The Court Attendance Notices relating to Mr Field came on for hearing before his Honour Mr Maloney LCM on 23 February 2005. Mr Field represented himself. An officer from the RTA, Mr Chippendale, gave evidence. He identified each alleged infringement, producing a photograph of Mr Field's vehicle on each occasion, with information relating to the offence recorded on the face of the photograph. For instance, in respect of the first alleged offence, the photograph recorded the following:

"Speed Limit: 040 KPH Vehicle Speed: 051 KPH Lane: 2

REDFLEX Monday 08 March 2004 14:34:57"

9 Mr Chippendale produced a number of certificates, as contemplated by the Act. Certificates were tendered under the Road Transport (General) Act 1999 as to the ownership of each vehicle. A certificate was tendered under s46(1) of the Road Transport (Safety and Traffic Management) Act 1999 as to the testing and accuracy of the approved speed measuring device. The device operating in Ourimbah Road, Mosman, had been checked on 28 January 2004 (a matter of some months before the alleged offence on 8 March 2004) and found to be accurate. A further certificate was tendered under s47(5) of the same Act, recording that the camera had been checked and found to be accurate on 3 March 2004, a matter of five days before the alleged offence.

10 The evidence was essentially the same in respect of the alleged speeding offence on 24 March 2004. As mentioned, a photograph of the vehicle was tendered with a certificate of its ownership, The prosecution relied upon the same certificates in respect of the testing of the approved speed measuring device and the approved camera recording device, since each device had been tested within the prescribed period specified by the Act. Mr Chippendale was not cross examined.

11 Mr Field then gave evidence. He acknowledged that he was the owner of the vehicle photographed on 8 March and the vehicle photographed on 24 March 2004. He also conceded that he had exceeded the speed limit. The transcript included the following:

"Magistrate: You're doing 48 in a 40 and 51 in a 40 weren't you?
Field: That's correct, yes."

12 Mr Field's complaint concerned the time of each offence. The school zone came into operation at 2.30 pm. One offence was recorded at 2.34 pm and the other at 2.39 pm. It was, he said, difficult for drivers to have their watches calibrated to the same time as the device. There ought to be blinking lights or some other means of warning drivers that the speed limitation was in operation. He regarded it as "very hard" that he should be prosecuted in such circumstances.

13 The hearing proceeded, as you might expect, with a degree of informality. His Honour did not give a formal judgment. Nonetheless, his reasons for ultimately dismissing each notice emerged from the debate with the officer appearing for the RTA. In the course of that debate, his Honour drew attention to the procedure adopted by the police in proceedings against a motorist for speeding, based upon the use of radar. The police apparently provided certificates demonstrating that the radar device had been checked at some point before the alleged offence, as well as after. His Honour said this:

"So that they checked it on the 1st March and they checked it again on 1 September, anything that falls in the middle there is the presumption that it is working okay. If it is working okay at point A and working okay at point C, any date where you place point B has got to be working okay but you don't have one here, right? Right, correct?"

14 Later his Honour added, referring to the section of the Act concerning the certificate which related to the camera device (s47):

"... I don't know but there has got to be a presumption that on this date it was working okay, so if you've got a 47 that says its before that date and nothing since, where's the presumption? So, we are going to correct it in future, aren't we Mr Chippendale?"

15 Accordingly, there being no evidence of a check concerning the accuracy of each device after the date of the alleged offence, his Honour determined that it could not be presumed to be accurate and reliable on 8 and 24 March respectively. The summonses, therefore, were dismissed.

The Appeal.

16 There is an appeal as of right on a question of law from an order made by a Local Court dismissing a matter the subject of any summary proceedings (s56(1)(c) Crimes (Local Courts Appeal and Review) Act 2001). Here, it is said on behalf of the RTA that his Honour misdirected himself in respect of the statutory scheme in relation to devices installed under the Road Transport (Safety and Traffic Management) Act 1999. Whatever may be contemplated by other statutory schemes, including police radar, the statutory scheme established under the Road Transport (Safety and Traffic Management) Act 1999 was quite specific. It recognised the need for accuracy and the corresponding need for periodic checks. It specified the period during which checks should be made in the case of the approved speed monitoring devices (12 months) and in the case of the approved camera recording device (30 days). It made provision for proving such checks by the admission of certificates signed by persons who were so authorised under the Act. The certificate in each case related to the period before the offence. As set out above s46(1), in the case of the speed measuring device, required the certificate:

"s46(1)(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"
(emphasis added)

17 Similarly, the certificate in respect of the approved camera recording device likewise related to a period before the time and day recorded on the photograph (s47(5)(b)). Mr Field did not adduce evidence that the approved digital camera recording device, or the speed measuring device, were not reliable or accurate. In these circumstances, the following submission was made on behalf of the RTA:

"4.11 Accordingly, the Local Court's direction that the 'approved digital camera recording device" could not, in the absence of a further s47(5) RT(S&TM)A certificate for a date after 8 and/or 24 March 2004, be 'presumed' accurate and reliable was a misdirection:
(a) the suggested requirement could never be fulfilled, any further certificate could not relate to a date before the alleged offence, and
(b) it denied the s47(5) RT(S&TM)A certificate in fact tendered the benefit provided for by sub-s47(5) RT(S&TM)A."

18 I accept the plaintiff's argument. I believe there was error. Although Mr Field complained that he had been harshly treated, he did not adduce evidence that either device was not accurate or reliable. The certificates in respect of the testing before the offences, within the period prescribed in each case, was evidence of their accuracy. Section 46(2) of the Act provided, in the case of an approved speed measuring device, that, once the certificate was tendered, evidence of the accuracy and reliability of the approved measuring device was not required (absent evidence questioning the accuracy or reliability of that device). That provision gave statutory force to the presumption of continuance. Where, as here, there was no evidence to the contrary, it may be inferred that the device was operating correctly at the time of the offence. The same can be said in the case of the approved camera recording device.

19 The statutory scheme, as submitted by the plaintiff, does not contemplate a certificate after the offence. Where the defendant adduces evidence questioning the accuracy or reliability of the device (whether the speed monitoring device or the camera recording device) evidence (although not by certificate, unless by consent) of testing after the date of the offence may be relevant and admissible. However, that issue did not arise in this case. Subject to one issue, I believe the plaintiff is entitled to succeed.

The proper plaintiff.

20 When the summons was issued, a question arose as to whether it should be issued in the name of Mr Michael Morgan, being the person named as "prosecutor" in the Court Attendance Notices, or the RTA, which was identified as the "prosecuting agency" on the Notices. The summons, as originally typed, included Mr Morgan's name. When it was filed, however, his name was crossed out and the name of the Authority substituted. The issue is whether the RTA was the "prosecutor" for the purposes of s56 of the Crimes (Local Courts Appeal and Review) Act 2001. If it is not, application is made to substitute Mr Michael Morgan as plaintiff pursuant to Pt 51B r10(4) of the Supreme Court Rules.

21 Under the Criminal Procedure Act 1986, which has application to the Local Court, the term "prosecutor" is defined in s3 in these terms:

" prosecutor means the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution and includes (where the subject-matter or context allows or requires) a barrister or solicitor representing the prosecutor."

22 Counsel draws attention to the distinction made in this definition between, on the one hand, the person who institutes the prosecution and the person responsible for the conduct of the prosecution. Mr Michael Morgan, on behalf of the RTA, instituted the prosecution, but the RTA was the body responsible for the prosecution.

23 The Crimes (Local Courts Appeal and Review) Act 2001 also contains a definition of "prosecutor" which is in these terms (s3):

" prosecutor , in relation to proceedings from which an appeal or application for leave to appeal is made, means the person responsible for the conduct of the prosecution in those proceedings."

24 Again, on the plaintiff's argument, the RTA is the person responsible for the conduct of the prosecution and as such, the prosecutor. It is therefore the appropriate body to issue the summons to this Court and prosecute this appeal.

25 Again, I accept the plaintiff's argument. The prosecutor, in truth, is the RTA, as the party responsible for the conduct of the prosecution.

Orders.

26 The matter proceeded exparte. Mr Field was served with the summons and supporting documents but chose not to appear. He was advised again by telephone the evening before the matter was heard. The RTA does not seek costs against him.

27 I therefore make the following orders:

1. That the orders of the Local Court at the Downing Centre, 143-147 Liverpool Street, Sydney, made on 23 February 2005 dismissing:

(a) the proceedings commenced by the Court Attendance Notice issued by the Plaintiff against the Defendant on 17 June 2004 in respect of a speeding offence alleged to have been committed on 8 March 2004 at Mosman (the 'First CAN'), and
(b) the proceedings commenced by the Court Attendance Notice issued by the Plaintiff against the Defendant on 17 June 2004 in respect of a speeding offence alleged to have been committed on 24 March 2004 at Mosman (the 'Second CAN')


be set aside.

2. That the Local Court at the Downing Centre resume the hearing of each of the above proceedings and determine each according to law.

3. No order as to costs.

*****

04/07/2005 - Slight rewording. - Paragraph(s) 22