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

1. GRAY J:               I would refuse permission to appeal.  I agree with the reasons of Vanstone J.

2. 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

3. 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.

4. 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

5. 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.

6. 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…