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 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.
In cross-examination, he repeated that he had made the notes of the conversation with the defendant at the time. He was asked about the notes:
QHow did you put then ‘Finished 30/3/10 at Holden Hill’, which is obviously at the end of the shift at half past eleven when you’ve made the tests, if these notes were made at the time.
ABecause that’s when I would do the test.
QThis is recording that you’ve done the test at the end of the shift or signified ‘F’ –
AYes.
Q– 30/3/10.
AYes.
QAt Holden Hill.
AYes.
QYou haven’t even done it.
ANo.
QSo you’re making original notes of something in the future. Is that what you’re saying.
AI am – I see what you’re talking about, yes.
QAre you sure these notes were made at the time and they weren’t done when you got back to base after you’d done all the tests.
ANo, they were made at the time.
QWhy did you put finish 30/3/10.
ABecause that’s what I wrote down.
QYou hadn’t done it.
ANo, I hadn’t, not at that stage.
It was clear from his cross-examination that Constable Chatfield made errors in recording his notes.
The defendant gave evidence that at no time did he exceed the speed limit of 50 kilometres per hour. He described four other vehicles on the road. He said he was travelling behind two vehicles and that there were two vehicles coming towards him. He agreed that when he was pulled over the police officer told him that he had been clocked at 120 kilometres per hour. The police officer offered to show him the speed on the speed gun but he refused to look at it. When he was asked the reason for speeding, he denied speeding and said, “I just come from a mate’s place, tune up his car”.
Magistrate’s reasons
The Magistrate reminded himself that the prosecution must prove the defendant’s guilt beyond reasonable doubt. He stated that if, at the conclusion of his deliberations, he was unable to determine where the truth lies, he must acquit. He referred to Constable Chatfield’s evidence. Much of the evidence related to the accuracy of the speed gun. The Magistrate concluded that Constable Chatfield was a reasonably impressive, reliable and truthful witness. He observed that some of Constable Chatfield’s notes were inconsistent and clearly incorrect. Nevertheless, he was impressed by Constable Chatfield’s evidence and his frank admission that his notes were inaccurate in parts. He concluded that those factors did not cause him concern. The Magistrate expressed concern about some aspects of the defendant’s evidence. In particular, he was concerned that the defendant had a clear memory of the cars in front of him, including the make, model and year of one of the cars. He commented on the defendant being adamant about his speed being 50 kilometres per hour or less. The Magistrate concluded:
The defendant also gave evidence in relation to the matter. I wasn’t told how long he’s been a truck driver but I accept that he’s a truck driver and I therefore accept that he has at least some experience of driving on the road. It is accurate, I think to say, that he didn’t necessarily waiver in his evidence under cross-examination. I’m not left with a situation, therefore, where he’s given evidence under cross-examination that was significantly different or varied in anyway [sic] with the evidence he gave in-chief.
I do have to say though, there were a couple of aspects to his evidence that just caused me some concern and I was left with an impression of him – and aspects of his evidence – smacking of some reconstruction. I give a couple of examples. One relates to the fact that he would have me accept that he can clearly recall the year, make and model of the car in front of him. I find that unlikely. Perhaps that could have occurred but of course he would have me believe that that occurred at a time when at that stage nothing remarkable is occurring. He’s simply driving home from a mates [sic] place, minding his own business ostensibly, and he would have me accept that he was not aware of the police officer to his rear at that time. Of course the vehicle in front of him had driven off by the time that he was pulled over. It just left me with the impression that he was trying a little bit too hard to remember the specific circumstances of the matter and as I say I had moments where I felt he was reconstructing his evidence. He also was very keen to avoid, I gained the impression, of conceding that he was doing anything other than the speed limit – and indeed the exact speed limit. On several occasions he referred to “doing 50”. At one point it almost slipped out from him that after accelerating from the bend on the road in question he accelerated from “approximately 30 km/h” and he accelerated up to “about 50” and he very quickly corrected himself and wanted me to accept that no it wasn’t about 50, it was 50, so the 30 km/h could seemingly be approximately but not the 50 km/h. Hence, I didn’t have the impression from the defendant that he was prepared to make what might have been a reasonable concession that his speed was approximate. Again it just caused me some concern in relation to the defendant.
Submissions on behalf of the defendant
Mr Anders, who appeared for the defendant, criticised the Magistrate’s reasons and the manner in which the Magistrate analysed and assessed the evidence. He submitted that the Magistrate failed to make findings about the accuracy of Constable Chatfield’s evidence. He submitted that the Magistrate confused the issue of honesty with reliability. He referred to the Magistrate’s reasons. The Magistrate supported his conclusion that Constable Chatfield was a reliable witness by giving examples. The Magistrate said:
The inconsistencies did not cause me concern, such as to doubt his reliability. I give the one example of the fact that in his sworn affidavit he seems to concede that he referred to the date of the calibration device differently than the notes that he made at the time – or shortly after – he spoke with the defendant at the scene. His explanation that this was a typographical error I felt had the ring of truth to it, and I repeat that I didn’t think it was anything more sinister than that and did not leave me with cause to doubt him as a reliable witness. I do find that he is a reliable witness and I am prepared to accept what he has told me about what occurred on 30 March 2010.
Mr Anders submits that the example given by the Magistrate is not an example relating to reliability but, rather, an example relating to honesty. He submits that the Magistrate confused the concept of reliability and honesty. Mr Anders submits that there were a number of agreed inaccuracies in the evidence of Constable Chatfield. There were a number of errors in the documentary evidence. Mr Anders submits that the Magistrate failed to give adequate weight to the errors.
The respondent’s submissions
Mr Grant, who appeared for the police, submits that the errors referred to by Mr Anders relate to a date on the certificate. Constable Chatfield records 14/8/2010, when the correct date was 19/8/2009. The error was an error in transposing the date from one document to another. Mr Grant accepts that Constable Chatfield’s evidence was not reliable when he said that he made contemporaneous notes. The notes of when he tested the machine and when he completed his shift were made in anticipation of those events occurring.
Mr Grant accepts that there was a lack of care and accuracy by Constable Chatfield in recording matters which were relevant. Constable Chatfield accepted the inaccuracies when he was cross-examined.
Mr Grant submits that Constable Chatfield was accurate in his observations of the defendant and in his recording of the defendant’s speed. He submits that the Magistrate was correct in accepting Constable Chatfield’s evidence that there were no other vehicles on the road at the time. He submits that, if the defendant was travelling at about 50 kilometres per hour, the vehicles in front of him could not have affected the speed gun reading. Therefore, the only possibility the speed of a vehicle other than the defendant’s vehicle was recorded would be the speed of vehicles the defendant claims were coming towards him in a westerly direction. If a vehicle had been travelling towards Constable Chatfield at 120 kilometres per hour, it might have been expected that he would have noticed it. Mr Grant submits that the Magistrate was correct in concluding that Constable Chatfield’s evidence was honest and reliable in respect of that issue.
Further, Mr Grant submits that the defendant’s response when the allegation of speed was put to him, that he was just giving it a tune up, is a telling response. The defendant’s evidence that what he was referring to was that he had been at his friend’s home tuning up a car was a highly unlikely response. Mr Grant submits that the defendant did not challenge Constable Chatfield’s account that the defendant referred to tuning up the car. Mr Grant contends that the response of the defendant to the allegation of speeding, as recorded by Constable Chatfield, is responsive to the allegation. The defendant’s version of what he said is non-responsive and makes little sense.
Discussion
I have reviewed the evidence. The reasons of the Magistrate were given ex tempore.
The issues in this case were not complex. Much of the argument before the Magistrate was that the certificate of accuracy of the speed gun should not have been admitted. That issue was not pursued in the appeal. The Magistrate dealt with the evidence which was within a relatively narrow compass. He directed himself on the onus of proof and the requirements that he must be satisfied beyond reasonable doubt that the charge has been proved.
The Magistrate was faced with two versions of the event. It is clear from the Magistrate’s reasons that he preferred the evidence of Constable Chatfield, and that he was satisfied beyond reasonable doubt that the case against the defendant had been proved. He rejected the defendant’s evidence. This was a case in which little can be said by way of explanation for preferring one witness to another. However, if, as the Magistrate concluded, the evidence of Constable Chatfield was accepted as honest and reliable, then the defendant’s statement that he had just tuned his car and was giving it a run, when asked to explain his speed of 120 kilometres per hour, was telling.
The extent to which a magistrate must give reasons for preferring the evidence of a witness to the evidence of another witness has been the subject of discussion in a number of authorities.[1] The criticism of the Magistrate’s reasons have some force but, when the reasons are read as a whole, it is clear that the Magistrate understood the issue, had regard to relevant matters and was satisfied that Constable Chatfield’s evidence was truthful and reliable. There was sufficient evidence for the Magistrate to arrive at that conclusion. In my view, no error has been demonstrated.
[1] 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.
I would dismiss the appeal.