Such v Police - [2011] SASCFC 4

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SUCH v POLICE
[2011] SASCFC 4
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Vanstone)
28 February 2011
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - PRESUMPTIONS - AS TO SCIENTIFIC INSTRUMENTS
Application for permission to appeal against speeding conviction on grounds that suggested failures in testing laser speed gun undermined admissibility of statutory certificate going to gun's accuracy and alleging failures of process associated with testing laser speed gun - allegations that magistrate reversed onus of proof in relation to matters beyond ambit of statutory certificate.
Held: application for permission to appeal refused.
Road Traffic Act 1961 (SA) s 175(3)(ba), referred to.

SUCH v POLICE
[2011] SASCFC 4
Full Court: Gray, Sulan and Vanstone JJ

GRAY J: I would refuse permission to appeal. I agree with the reasons of Vanstone J.
SULAN J: I would extend the time for filing the Notice of Appeal. I would refuse the application for permission to appeal. I agree with the reasons of Vanstone J.
VANSTONE J:
Introduction
In the afternoon of 2 January 2008, Constable Thompson, an officer of the Southern Traffic Enforcement Section conducting speed detection duties, positioned himself on the footpath of Oakridge Road, Aberfoyle Park. He was equipped with an LTI Ultralite 100 LR laser traffic speed analyser (speed gun). At about 1.40 he used that device to target the applicant’s vehicle, which to his eye, was travelling at a rate greater than the applicable speed limit of 50 kilometres per hour. A speed of 69 kilometres per hour was recorded. The officer stopped and spoke to the applicant and then issued an expiation notice.
After a trial in the Magistrates Court the applicant was convicted. An appeal to a single judge of this Court was unsuccessful. The applicant now applies for permission to appeal and an extension of time within which to appeal against the decision of the single judge dismissing his appeal.
The arguments on appeal
The application for permission to appeal was argued as an appeal. Two grounds of appeal were agitated. First it was said that both the magistrate and the single judge erred in finding admissible a certificate signed by Inspector White and purporting to comply with s 175(3)(ba) of the Road Traffic Act 1961 (SA) to prove the accuracy of the speed gun. As an aspect of that ground it was argued that, in any event, the magistrate and the single judge erred in concluding that the assertions of fact contained within the certificate had not been rebutted by other evidence. Secondly, it was argued that the magistrate had erred in reversing the onus of proof.
In support of the first ground, Mr Borick QC who appeared in this court for the applicant (though not previously) pointed to what he said were deficiencies in the testing carried out by Constable Thompson prior to operating the speed gun. Mr Borick argued that the testing to which Constable Thompson said he had subjected the speed gun prior to commencing his speed detection work on that day could not have given rise to the terms of the s 175(3)(ba) certificate as tendered. The provision is as follows:
175 (3) In proceedings for an offence against this Act –
…
(ba)a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or by any other police officer of or above the rank of inspector, and purporting to certify that a specified traffic speed analyser had been tested on a specified day and was shown by the test to be accurate to the extent indicated in the document constitutes, in the absence of proof to the contrary, proof of the facts certified and that the traffic speed analyser was accurate to that extent on the day on which it was so tested and, for the purpose of measuring the speed of any motor vehicle—
(i)in the case of a traffic speed analyser that was, at the time of measurement, mounted in a fixed housing—during the period of 27 days immediately following that day; or
(ii)in any other case—on the day following that day, whether or not the speed measured differed from the speed in relation to which the analyser was tested or the circumstances of the measurement.
The relevant assertion in the certificate was that the speed gun had been tested before use on 2 January 2008 “… and was accurate to within manufacturer’s specifications, namely + or – 2 km/h”. Mr Borick argued that the certificate could not do what the legislation said it had to do in order to prove the accuracy of the device.
In order to explain the argument it is necessary to refer to some of Constable Thompson’s evidence. The tests to which he said the speed gun was subjected prior to the commencement of active duty were first, a screen integrity test and second, a scope alignment test. These are tests built into the device and are performed by engaging particular control buttons on the device. For present purposes they need not be described. The third test was described as a “fixed distance check”. This required testing the device against a precise distance which was set up at the police complex where Constable Thompson’s duties commenced. The test involved placing the speed gun over a painted mark in the car park of the complex and targeting a point on a wall exactly 50 metres away. Constable Thompson said that upon performing this test the speed gun showed 50 metres on the screen and gave a speed reading of 0 kilometres per hour. He said the test was supposed to “indicate that the device is measuring distance and time and therefore it comes up with a speed”.
In respect of this last test, Mr Borick argued that, as a matter of “logic and science”, a test involving a fixed object could not give rise to a valid result of + or ‑ 2 km/h. He said that therefore the certificate could not prove the accuracy of the device as contemplated by the legislation. As I understand his argument, it was to this effect. Because the tests described by Constable Thompson did not involve measuring the accuracy of the speed gun against a moving target, those tests were incapable of resulting in a measure of accuracy of speed assessment which could be expressed as “+ or – 2 km/h”, or to any meaningful measure. Therefore, the certificate did not comply with the legislation and was inadmissible. Mr Borick put that a “calibration certificate” which referred to the testing of the speed gun could have (and had) produced a result in these terms much earlier, in August 2007. This was part of the material relied upon by Inspector White in supplying the s 175(3)(ba) certificate, but was not tendered at the trial. This issue was described by counsel as his “fundamental” argument. He accepted that the fact that there was no objection to the admission of the certificate at trial was an impediment to the success of his argument.
It might be argued, on the same basis that, even if the certificate were admissible because, on its face, it complied with the requirements of s 175(3)(ba) Constable Thompson’s evidence about the limited tests he conducted demonstrated that it was lacking in any weight. However, as I understood Mr Borick, he preferred to put this argument in terms of admissibility only.
Mr Borick’s argument as to the weight to be given the certificate rested on other matters. There he pointed to Constable Thompson’s evidence of the way in which he conducted the fixed distance test. He said the officer’s methodology was flawed inasmuch as the officer said that, generally speaking, if the distance measured by the speed gun varied at all from the true distance, he would take steps to ensure that the speed gun was exactly over the test mark and would then re-test the device. Mr Borick argued that this undermined the validity of the test because it amounted to the officer moving the device until the correct result was obtained. Both the magistrate and the single judge dealt with this argument. It is said that the magistrate’s analysis was inadequate.
In addition, Mr Borick referred to a number of what he said were errors or failures of process attending, not only the production of the certificate, P4, but also other documents associated with the prosecution. For example, in relation to the expiation notice (which was not admitted into evidence at the trial) there was an assertion by Constable Thompson that he was positioned 20 metres from the nearest side street. In fact he was about 30 metres from it. Then, there was an inconsistency on the topic of whether there was another vehicle about at the time of the incident. The officer admitted at trial that when he filled out the expiation notice he anticipated the time of the range test relating to the speed gun, which he was required to conduct at the end of his shift. He inserted 3.00pm into the form, which was the time his shift was to finish. That proved to be ultimately correct as to the time of the second test, but, as the magistrate observed, it was not good practice to anticipate the time in that way. Then, where the form made provision for a person to indicate that it had been checked, apparently Constable Thompson’s own signature appeared.
Mr Borick also referred to an affidavit which was apparently prepared by Constable Thompson for the purposes of briefing Inspector White in order to obtain the s 175(3)(ba) certificate. He pointed to an error in the affidavit giving the date when the speed gun had last been calibrated. That error found its way into the form headed “Request for a Certificate of Accuracy of Traffic Speed Analyser”, which was to be furnished to Inspector White along with the affidavit. That error was noted by Inspector White.
The documents referred to were internal police documents and not part of the prosecution case against the applicant. The errors in the documents provided material for cross-examination of Constable Thompson by counsel who appeared at the trial for the applicant. The documents have no status in this Court. They cannot affect the admissibility of the s 175(3)(ba) certificate. There were other matters about which Constable Thompson was cross-examined which Mr Borick highlighted.
The second ground of appeal is a complaint that the magistrate reversed the onus of proof. The paragraphs in the magistrate’s reasons which were said to embody this error were as follows:
^[36]In defending the charge, the defendant sought to highlight a number of errors in the way Constable Thompson carried out his duties both on the relevant day and subsequently. The defendant sought to discharge the onus to prove inaccuracy of the laser by challenging Constable Thompson with respect to his training, his knowledge of the laser and how it works and whether or not the laser had been tested and used as was required.
…
^[49]For these reasons I am not satisfied that the defendant has discharged the onus to rebut the presumption that the laser was accurate to within the manufacturer’s specifications. Further, I am satisfied beyond reasonable doubt that the laser was operated and read correctly. It follows that I find the defendant guilty of the charge.
In relation to the latter paragraph, Mr Borick placed particular emphasis on the opening three words of the paragraph. In the preceding seven paragraphs the magistrate had analysed Constable Thompson’s evidence in some detail and referred to a number of the defence criticisms of it. Mr Borick argued, as I understood him, that the magistrate had effectively put an onus on the applicant, not only to disprove the accuracy of the speed gun, but also in relation to Constable Thompson’s evidence that he operated the device correctly and read and reported the result correctly.
Analysis
As I have explained, this matter comes before the Full Court as an application for permission to appeal. In my view it does not raise any issue of general importance. It is in part an attempt to re-agitate arguments going to the police officer’s credit and, in respect of what Mr Borick said was the “fundamental” ground, it is an argument that was not put to the magistrate or to the single judge. It is also an argument which, in my view, lacks any evidentiary basis. In my view permission to appeal should not be granted on any ground. In those circumstances I propose to deal with Mr Borick’s arguments quite briefly.
In my view the certificate, P4, was admissible. Its terms answered the requirements of s 175(3)(ba). There was no error on its face. That there might be evidence which could call into question the appropriateness of the tests carried out and the conclusion expressed in the certificate did not, in my view, go to its admissibility. I consider that it was correctly admitted. Accordingly, there is no need to consider whether it is now open to Mr Borick to argue to the contrary, having regard to the fact that defence counsel did not object to its tender.
In respect of the possible alternative argument going to the weight of the certificate, the plain fact is that the suggested inability of the fixed distance test to justify the conclusion reached in the certificate was not the subject of evidence before the magistrate. Indeed, when the police prosecutor raised a question going to the training of Constable Thompson and the extent to which that training and the testing conducted by Constable Thompson reflected the requirements of police general orders and the Australian Standard dealing with such devices, counsel then acting for the applicant said that it was not necessary to call such evidence. In my opinion, no conclusion can be reached by this Court about the suitability of the fixed distance check to assess accuracy of speed measurement, or about the way in which the conclusion has been expressed in the certificate having regard to the use of that test.
In respect of the criticism of Constable Thompson relating to his recording of distances, his anticipation of the time at which he would later perform his second range tests, as to his note taking generally and the error in his affidavit, these were matters which went to his credibility. They were the subject of extensive cross-examination before the magistrate. The magistrate referred to these matters but found Constable Thompson to be “an impressive and credible witness”. The same matters were raised before the single judge and he found no error in the way the magistrate had considered and assessed the evidence.
I do not agree that the magistrate erred in her approach to questions of onus of proof in this matter. The paragraphs which I have set out do not disclose any such error. In [49] the magistrate did not purport to attribute to the section any role beyond its work in proving, in the absence of proof to the contrary, that the speed gun was accurate. The magistrate went on to find, in relation to the operation and reading of the result, that the criminal onus of proof had been discharged by the prosecution.
Conclusion
In my view this application for permission to appeal is unmeritorious. There was no objection to the application to extend time within which to appeal. It appears that the delay in filing the Notice of Appeal was related to matters outside the applicant’s control.
I would extend the time for filing the Notice of Appeal to 11 October 2010 but I would refuse the application for permission to appeal.