Spencer v Police - [2011] SASC 59

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SPENCER v POLICE
[2011] SASC 59
Judgment of The Honourable Justice Sulan
19 April 2011
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
Appellant convicted of driving over 45 kilometres per hour in excess of speed limit - appeal against conviction - whether Magistrate was in error when considering burden of proof - whether Magistrate erred in failing to make findings as to accuracy of police evidence - whether Magistrate confused honesty with reliability - preference of evidence of one witness to another - extent to which a magistrate must give reasons for preferring evidence of one witness - sufficient evidence for Magistrate to make conclusion - appeal dismissed.
Road Traffic Act 1961 (SA) s 45(a)(1), referred to.
R v Power (2003) 141 A Crim R 203; R v Keyte (2000) 78 SASR 68; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Gikas v Police (1999) 202 LSJS 301, considered.

SPENCER v POLICE
[2011] SASC 59
Magistrates Appeal: Criminal

SULAN J: Shane Robert Spencer, the defendant, was convicted of driving at excessive speed, being over 45 kilometres per hour in excess of the speed limit, on 30 March 2010 at Sturton Road, Edinburgh, contrary to section 45(a)(1) of the Road Traffic Act 1961 (SA). On 12 January 2011, he was convicted by a Magistrate of that offence. He appeals against the conviction.
The defendant was timed travelling in an easterly direction along Sturton Road at a speed of 120 kilometres per hour by a speed analyser instrument. The defendant asserts in his Notice of Appeal that the Magistrate was in error in admitting a certificate of accuracy of the traffic speed analyser. That ground of appeal was abandoned at the hearing of the appeal. The only ground of appeal that has been pursued is that the Magistrate failed to exercise the correct burden of proof.
The evidence
The prosecution relied upon the evidence of a police officer, Constable Chatfield, who has been involved in traffic enforcement since December 2006. He is familiar with and trained in the use of the ultra light laser equipment, which I shall refer to as a speed gun.
Constable Chatfield gave evidence that Sturton Road runs generally in a north-south direction, and then bends at a T-junction to run in an east-west direction. At about 7.22 pm, Constable Chatfield positioned himself at a point at which Sturton Road bends at approximately 90 degrees from a north-south direction to an east-west direction. He heard the defendant’s vehicle approaching the bend from a southerly direction, travelling north. The vehicle turned right at the bend and proceeded along Sturton Road in an easterly direction. Constable Chatfield, who was positioned west of the bend, aimed the speed gun at the rear of the defendant’s vehicle. He said that there were no other vehicles on the road or in the vicinity at the time that he timed the…

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.

Continue reading Spencer v Police

Details

AGLC: Spencer v Police [2011] SASC 59
Case: [2011] SASC 59
Decision Date: 19 April 2011

CaseChat Overview and Summary

The appellant was convicted of driving at over 45 kilometres per hour in excess of the speed limit. The conviction was made following the use of a speed analyser instrument, which timed the appellant travelling at 120 kilometres per hour on Sturton Road. The appellant appealed against his conviction, claiming that the Magistrate was in error in considering the burden of proof, in failing to make findings as to the accuracy of the police evidence, and in confusing honesty with reliability. The appeal was heard in the Supreme Court of Victoria.

The central legal issues in the appeal were whether the Magistrate was in error in admitting a certificate of accuracy of the traffic speed analyser, and whether the Magistrate failed to exercise the correct burden of proof. The appellant argued that the Magistrate did not make findings as to the accuracy of the police evidence, and that the Magistrate confused honesty with reliability. The appellant further submitted that the preference of evidence of one witness to another required a more detailed explanation from the Magistrate.

The court held that the Magistrate did not err in admitting the certificate of accuracy of the traffic speed analyser. The court also held that the Magistrate exercised the correct burden of proof. The court found that the Magistrate made sufficient findings to conclude that the appellant was guilty of the offence. The court held that the Magistrate was not required to make findings as to the accuracy of the police evidence, and that the Magistrate did not confuse honesty with reliability. The court held that the preference of evidence of one witness to another did not require a more detailed explanation from the Magistrate.

The appeal was dismissed. The conviction of the appellant was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The defendant was timed travelling in an easterly direction along Sturton Road at a speed of 120 kilometres per hour by a speed analyser instrument. The defendant asserts in his Notice of Appeal that the Magistrate was in error in admitting a certificate of accuracy of the traffic speed analyser. That ground of appeal was abandoned at the hearing of the appeal. The only ground of appeal that has been pursued is that the Magistrate failed to exercise the correct burden of proof.The evidence The prosecution relied upon the evidence of a police officer, Constable Chatfield, who has been involved in traffic enforcement since December 2006. He is familiar with and trained in the use of the ultra light laser equipment, which I shall refer to as a speed gun. Constable Chatfield gave evidence that Sturton Road runs generally in a north-south direction, and then bends at a T-junction to run in an east-west direction. At about 7.22 pm, Constable Chatfield positioned himself at a point at which Sturton Road bends at approximately 90 degrees from a north-south direction to an east-west direction. He heard the defendant’s vehicle approaching the bend from a southerly direction, travelling north. The vehicle turned right at the bend and proceeded along Sturton Road in an easterly direction. Constable Chatfield, who was positioned west of the bend, aimed the speed gun at the rear of the defendant’s vehicle. He said that there were no other vehicles on the road or in the vicinity at the time that he timed the defendant’s vehicle. Constable Chatfield recorded the speed of the car, which was approximately 250 metres east of his position, at 120 kilometres per hour. Constable Chatfield pursued the defendant’s car on his motorbike. He activated the emergency lighting. The defendant stopped his car and Constable Chatfield approached him. He spoke to the defendant. He made a note at the time. The note recorded the time as 7.22 pm, the date 30 March 2010, the recorded speed 120 kilometres per hour and the distance 253.3 metres. The police officer spoke to the defendant. After obtaining his personal details, he advised the defendant that he had recorded his speed at 120 kilometres per hour and asked him his reasons for speeding. The defendant responded, “I just give it a tune up and was giving it a run”. Constable Chatfield said, “You are going to be reported for excessive speed, do you understand?” The defendant said, “Yes”. Constable Chatfield said his practice was to show drivers the speed on the laser gun whilst they are seated in their car. He made a note that he had shown the defendant the speed reading on the laser gun. In cross-examination, it was suggested to Constable Chatfield that there were two cars travelling in front of the defendant’s car and two cars travelling in the opposite direction at the time that he purportedly timed the defendant’s car. Constable Chatfield denied that to be the case. During cross-examination, Constable Chatfield agreed that he had recorded the time that he completed his shift prior to actually completing the shift. He also agreed that he had made errors in respect of the date when he noted the dates that the speed gun had been tested and calibrated. He said that there was a type-written error in his statement. He said that when he was preparing his statement, he looked at the calibration report and made an error in his statement when referring to the date.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.