SA Police v Julian Mark O'Brien No. SCGRG 96/1523 Judgment No. 5754 Number of Pages 6 Traffic Law

[1996] SASC 5754

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Traffic law - driving at a speed dangerous to the public - the respondent was timed by a police radar camera driving a motor car at 109 kilometres an hour on a suburban road - he denied travelling in excess of 85 kilometres an hour and called expert evidence to prove that it was impossible to accelerate from a standing start (he had been stationary at an intersection) to 109 kilometres an hour over the distance noted by the camera operator, a police constable, between the intersection and the camera - held that the Special Magistrate was right to refuse a request for a view to enable the constable to re-assess his estimate of the distance, and correctly found on the whole of the evidence that the statutory presumption that the certificates and photographs tendered by the prosecution were proof of the speed alleged "in the absence of proof to the contrary" was displaced by credible evidence raising a reasonable doubt as to the truth of the allegations. Road Traffic Act 1961s46, referred to.

HRNG ADELAIDE, 12 August 1996 #DATE 12:8:1996 #ADD 17:9:1996

Counsel for appellant:     Ms M Panagiotidis

Solicitors for appellant:    Crown Solicitor (SA)

Counsel for respondent:     Mr S White

Solicitors for respondent: O'Loughlins

ORDER
Appeal dismissed.

JUDGE1 PERRY J The appellant appeals against the dismissal by the Magistrates Court sitting in Adelaide of a charge that the respondent, on 16 September 1995 at Norwood, drove a motor car on a road, namely Magill Road, at a speed which was dangerous to the public contrary to s.46 of the Road Traffic Act 1961.

2. On the same occasion, the learned special magistrate found proved a second charge, namely, that on the same occasion, the respondent drove at a greater speed than 60 kilometres an hour. Although that charge alleged a speed of 109 kilometres an hour, the speed found to have been proved was 85 kilometres an hour.

3. The appellant called a police officer, Constable Merritt. As well, certain certificates and photographs were tendered pursuant to the various enabling provisions which find expression in the Road Traffic Act 1961.

4. Constable Merritt's evidence was that at about 7.26 pm on the date in question, he was performing traffic camera duties at Magill Road at Norwood. He set up a radar camera immediately in front of a parked police car on the southern side of Magill Road, some distance west of its intersection with Sydenham Road.

5. His evidence was that he became aware of a stationary line of traffic at the intersection. He heard what he described as high engine revs of an approaching vehicle, which turned out to be the respondent's motor car. He also heard what seemed to be the sound of gears changing. The vehicle appeared to be in a state of high acceleration.

6. As it went through the radar beam, the radar recorded a speed of 109 kilometres an hour.

7. For the assistance of the court, Constable Merritt produced a plan of the scene which, apart from recording the layout of Magill, Sydenham, Payneham and Fullarton Roads to the west, depicts the front of the police car at what Constable Merritt describes in the plan as about 80 metres west of the western side of Sydenham Road.

8. This would mean that from a standing start on the eastern side of the Sydenham/Magill Road intersection, the respondent's vehicle would have travelled the width of Sydenham Road, together with 80 metres, and whatever distance ahead of the front of the police car it would have to travel in order to intersect with the radar beam which was set at an angle of about 25 degrees across the roadway.

9. Some days later, after the occasion when the respondent's vehicle was timed in the manner in which I have indicated, Constable Merritt interviewed him. During the course of that interview, the respondent apparently accepted the suggestion that the radar unit was about 80 metres west of the Sydenham Road intersection. The respondent emphatically denied that he was travelling at anything like 109 kilometres an hour. He put his speed at no more than about 80 or at the most 85 kilometres an hour. He maintained that position throughout the proceedings.

10. Apart from his own evidence, the respondent called an expert witness, a Mr Aust, who has a number of engineering qualifications, including a Bachelor of Technology in Mechanical Engineering. His expertise in the relevant area was not challenged.

11. Put shortly, his evidence was that having regard to tests which he conducted using the respondent's car, in order to achieve a speed of 109 kilometres an hour, or to be precise, about 110 kilometres an hour from a standing start, the distance involved would be 145.5 metres. He recalculated the distance to 142.2 metres when asked what distance would be involved in achieving a speed, from a standing start, of 109 kilometres an hour. He said in evidence that it would have been "absolutely impossible" for the respondent's vehicle to have achieved a speed of 109 kilometres over a distance of 80 metres.

12. It is common ground between the parties that pursuant to the relevant statutory provisions, which I need not traverse for present purposes, the certificates and photographs tendered by the police prosecutor fell to be accepted as proof of the accuracy of the radar equipment and of the speed which he recorded "in the absence of proof to the contrary".

13. In the reasons given by the learned special magistrate for the dismissal of the charge in question, he not only found that there was proof to the contrary, but made a positive finding that the respondent was travelling "at about 85 kilometres an hour and therefore the first charge on a complaint has not been established beyond reasonable doubt". In reaching that finding, he accepted and relied upon the evidence of Mr Aust, together with the evidence of the respondent.

14. In order to displace the prima facie presumption provided for in the statute, it is sufficient if there is before the court credible evidence tending to the contrary which raises a reasonable doubt as to the truth of the facts relied upon by the prosecution.

15. At the conclusion of the case for the respondent, the police prosecutor applied to reopen the prosecution case. The actual words in the transcript are "APP Marsh applies to reopen prosecution case with the purpose of a view". That application was opposed. The ruling as recorded in transcript is, "The application to reopen the prosecution case with a view to the court viewing the scene where the radar camera was set up is refused".

16. It goes without saying that if the purpose of the view was to allow the court to make some measurement for itself of the distance between Sydenham Road and the point at which the radar camera was set up on the evening in question, there could be no question that in such circumstances the request for a view should be refused. The purpose of a view is not to enable the court to obtain evidence which could be used in that way; that much was conceded by Miss Panagiotidis who appeared as counsel for the appellant before me.

17. It would have been equally objectionable if the purpose of the view was to enable Constable Merritt to reconsider what he had said in evidence as to the position of the radar unit.

18. It seems to me that what the prosecution was about when it made the application to which I have referred, was to see whether it could counter the evidence which had been adduced on behalf of the respondent, by throwing up evidence from which the estimate of 80 metres might have been reassessed and extended.

19. Perhaps the appropriate application, rather than seeking a view, might have been to apply for an adjournment to enable Constable Merritt to check the position out and give answering evidence as to that aspect of the matter. But even if the matter was to be approached in that way, in my opinion, it was not a proper case to allow the prosecution in one way or another to embark upon such a course of action.

20. This was not a situation where the prosecution was caught by surprise as to an aspect of the case upon which it had not adduced any evidence. On the contrary, this was a case where what the prosecution set about trying to do after the defence case had been completed was to create an opportunity to see whether it might be able to change the goal posts, that is, present its case on a different footing. That was correctly held to be impermissible. The estimate of 80 metres was given not only in the plan to which I have already made reference, but it appears in Constable Merritt's contemporaneous record of the operation of the radar camera, namely, in a document headed "Radar Speed Camera Work Sheet". On that form, he wrote against the printed question "nearest landmark" the words "approximately 80 metres west Sydenham Road".

21. In the plan, not only does Constable Merritt show the camera to have been positioned about 80 metres west of Sydenham Road, but he also shows the distance proceeding west from the camera to Fullarton Road as being 200 metres, giving a total measurement of 280 metres between the western side of Sydenham Road and the eastern alignment of Fullarton Road.

22. In the grounds of appeal set out in the appellant's notice of appeal, the appellant complains that the learned magistrate erred in fact by finding "It was always an agreed fact that the radar unit was set up at a distance of about 80 metres from the intersection of Sydenham Road and Magill Road travelling west from that intersection". It is true, as Mr White who appeared for the respondent more or less conceded, to say that this was "an agreed fact" is to overstate the position.

23. Having regard to the course of the proceedings before the learned special magistrate, the most that can be said is that the evidence led on behalf of the appellant to that effect was not challenged at any stage by the respondent. The reason is obvious. It suited the respondent to keep the distance to 80 metres in view of his defence that it was impossible to achieve the alleged speed from a standing start over that distance.

24. The next ground of appeal is that the learned magistrate "erred in refusing leave for the prosecution to reopen its case to recall the police officer to identify the exact location of the traffic speed analyser".

25. I have already dealt with that ground of appeal. For the reasons which I have already expressed, the learned special magistrate properly exercised his discretion to refuse leave to reopen.

26. The other grounds of appeal relate to the use made by the learned special magistrate of the evidentiary aids in the legislation. The appellant contends that the "defendant had not discharged his onus of proof".

27. But it is not so much a matter of an onus of proof as a question, whether at the end of the day and on the whole of the evidence the statutory presumption is displaced by credible evidence raising a reasonable doubt. In my opinion, on my own assessment of the evidence, that clearly was the position which was reached in this case, although, as I have said, the learned special magistrate went one stage further and, in fact, found on the evidence that the respondent was travelling at about 85 kilometres an hour.

28. The appellant has not made out any ground upon which it would be proper to interfere with the dismissal of the charge.

29. The appeal is dismissed.