Such v Police - [2010] SASC 274

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SUCH v POLICE
[2010] SASC 274
Judgment of The Honourable Justice Anderson
2 September 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appellant appeals against conviction for exceeding speed limit - offence detected by laser speed gun.

TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN BREACH OF SPECIFIC SPEED LIMITS
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - PRESUMPTIONS - AS TO SCIENTIFIC INSTRUMENTS
Certificate of accuracy for laser speed gun tendered at trial as aid to proof and to invoke statutory presumption - statute states laser speed gun record of speed presumed accurate unless proof to the contrary - appellant submits certificate of limited weight without supporting calibration certificate - calibration certificate contemplated by Australian Standard and Police General Order - whether compliance with Australian Standard or Police General Order required to invoke statutory presumption - whether rebutted by other evidence.
Held: It is not a prerequisite to the s 175(3)(ba) presumption of accuracy that the Australian Standard or Police General Order be complied with.

EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - ONUS OF PROOF
Appellant submits that the magistrate wrongly reversed the onus of proof - whether the onus of proof rests on the appellant or respondent.
Held: Section 175(3)(ba) presumes the accuracy of the instrument unless the contrary is proved - onus is on the appellant to prove on the balance of probabilities that the laser speed gun was inaccurate - no error on the part of the magistrate.
Appeal dismissed.
Australian Road Rules r 20; Road Traffic Act 1961 (SA) s 47(b)(1), s 79B(10) and s 175(3)(ba); Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 19(1)(a); Development Regulations 2008 (SA), referred to.
Evans v Benson (1986) 46 SASR 317, applied.
Police v Henwood (2005) 92 SASR 15; Police v Bulgin [2010] SASC 143, discussed.

SUCH v POLICE
[2010] SASC 274
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

This is an appeal from the decision of a magistrate following a conviction for speeding contrary to r 20 of the Australian Road Rules.
The prosecution case, which was accepted by the magistrate, was that on 2 January 2008 at Aberfoyle Park the appellant drove at a speed of about 69 kilometres per hour on a road which had a designated speed limit of 50 kilometres per hour.
The appellant was detected by means of a laser speed gun. In the Magistrates Court the defendant pleaded not guilty and challenged the accuracy of the laser gun. There were also challenges made to various factual aspects including the precise location where the appellant was alleged to have committed the offence and its distance from where the laser gun was operated.
The prosecution case relied to a significant extent upon a certificate tendered pursuant to s 175(3)(ba) of the Road Traffic Act 1961 (SA). That is exhibit P4. The section contains a presumption to the effect that the laser speed gun was accurate, in the absence of proof to the contrary, as proof of the facts certified.
Section 175(3)(ba) reads:
175—Evidence
…
(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 differed in any other respect from the circumstances of the test;
…
The certificate of accuracy (exhibit P4) is from an Inspector of Police and certified that the particular device used was tested before use on 2 January 2008, and at or near the completion of use on that day, and was accurate to within the manufacturer’s specifications, namely, plus or minus two kilometres per hour. The certificate is dated 12 May 2010.
Grounds of appeal
The notice of appeal contains four main grounds as follows:
1.     The magistrate erred in finding that the certificate of accuracy for the Laser Speed Gun, which was tendered, amounted to proof of the accuracy of the instrument.
2.     The magistrate erred in finding beyond reasonable doubt that the instrument was properly operated.
3.     The magistrate reversed the onus of proof.
4.     The magistrate’s findings were unsafe and unsatisfactory and against the weight of evidence.
The magistrate’s reasons
The magistrate delivered comprehensive reasons for her decision to convict the appellant. The magistrate summarised the evidence called for both the prosecution and the defence. She then made her findings.
Her Honour found that the constable who operated the gun on the day in question was experienced and an impressive and credible witness. Her Honour acknowledged some errors made by the constable in the recording of his notes. Constable Thompson was challenged in relation to the testing which he carried out on the laser gun on the day of the alleged offence, and the magistrate found that the testing was carried out, and in accordance with requirements.
Constable Thompson was also challenged as to the location in which he says he operated the gun. There were discrepancies in estimates of distance but the magistrate accepted the evidence of the police officer.
Her Honour found that the appellant, when giving his evidence, was “somewhat defensive and on occasions seemed reluctant to accept simple matters that were not in dispute”. She said, “My impression was that to some extent he was reconstructing his evidence and was not greatly convinced of his own recollections”.
Her Honour concluded that she was not satisfied that the appellant had discharged his onus in rebutting the presumption that the laser gun was accurate within the required degree of tolerance. It is apparent from a perusal of Her Honour’s reasons that she analysed the disputes regarding the evidence of Constable Thompson in some detail. She concluded in Constable Thompson’s favour.
Arguments on appeal
Mr Woods’ first ground of appeal relates to the evidentiary weight of exhibit P4 and the failure of the prosecution to tender what he called an “annual certificate” relating to the testing of the Laser Speed Gun. An example of such a certificate was tendered by Mr Woods to show that such a document does exist. It was not the document for the relevant period in question.
The “annual certificate” is a separate certificate of accuracy and refers to the serial number of a particular laser gun and bears a certification date. It is signed by a police officer. It certifies that the particular laser gun has been tested against an instrument “traceable to a National Standard”, and verified as “a speed measuring device capable of determining the speed at which a motor vehicle travels within a limit of error not exceeding plus or minus 2 kilometres per hour”.
In other words, the certificate is to show that the particular gun has been tested against an instrument calibrated to a particular standard. In his evidence Constable Thompson referred to it as a “calibration certificate”. He explained that when preparing for court, it is the officer’s responsibility to request the calibration certificate from technical services. The calibration certificate would then be faxed to the requesting officer, who would include it in the package of documents for the prosecution. Constable Thompson further explained that the calibration certificate is produced to his inspector at the time he gets the certificate of accuracy signed. In other words it was part of the process in obtaining P4 from the inspector. As I understand it, P4 would not be given if there was no “calibration certificate” produced to the inspector.
The magistrate summarised Constable Thompson’s evidence in relation to the certificate at [27]. Her Honour said:
[27]With respect to the certificate of accuracy (Exhibit P1), Constable Thompson said he prepared that certificate for the inspector to sign. The information required by the inspector in order to sign that certificate required details of the calibration, his certification that he has done the appropriate checks, including the range tests in the morning and afternoon, that the seals were intact on the day and the calibration date. That information was included in a document that he prepared, declared as being accurate. The inspector signed Exhibit P1 on the basis of that information. He recalled that he had put into the declaration the wrong calibration certificate date. He had realised that he had made a mistake about it when he spoke to the inspector. Constable Thompson was shown a calibration certificate of the type that would have been presented to the inspector (Exhibit D12).
The appellant argued that the prosecution case was defective in that there was no evidence before the court of the annual calibration testing of the particular laser gun used in this matter.
There is no legislative requirement that an annual certificate needs to be tendered in prosecutions such as this. The annual certificate is not in fact mentioned in the Act. Exhibit P4 was, as I have said, a certificate tendered pursuant to the provisions of s 175(3)(ba).
Mr Woods acknowledged that there is nothing in the relevant legislation which mentions the annual or calibration certificate. He referred to the Australian Standard which he tendered, exhibit D1. That relates to the operational procedures for the laser gun. Clause 2.2.2 says, “the laser device shall not be used unless it has been tested and certified by a testing authority as meeting the requirements set out in clause 2.2.3 and been sealed by the testing authority within the past 12 months”. So, Mr Woods submits, this requirement in the Australian Standard is a prerequisite for the production of the certificate P4, because otherwise P4 cannot be said to be truly accurate and the appellant has no means of challenging the reading.
Mr Woods submitted that the certificate P4 tendered in this case pursuant to s 175(3)(ba), which he referred to as the field testing certificate, is not sufficient to prove the prosecution case beyond reasonable doubt.
I note that in his evidence Constable Thompson stated that part of the field test is to note the existence on the laser gun of calibration stickers on the front and back, giving a calibration date within the last 12 months. This is done at the beginning of the shift. The calibration stickers must relate to the annual calibration testing of the laser gun. That is to be presumed, in my view.
As I understood Mr Woods’ line of reasoning, it is that the annual testing which is carried out on a laser gun is an essential prerequisite for the accuracy of the machine to be established and therefore a necessary requirement before the evidentiary aid provided by s 175(3)(ba) can be invoked. He submitted that the certificate tendered (P4) is deficient unless there is evidence which shows that the particular machine has been calibrated and complies with the Australian Standard applicable for the machine.
As I have said, the Australian Standard was tendered. Also tendered was the relevant manual under Police General Order 8910 relating to traffic speed analysers. Much of the information in the General Order applies to all speed analysers, whether traffic cameras, radars or laser speed guns. The appendices contain detailed instructions to police officers on the use and operation of the laser speed gun as well as other traffic speed analysers. Appendix B provides as follows:
BASIC SPEED MEASUREMENTS
Measuring a Moving Vehicle
To measure the velocity of a vehicle using the UltraLyte, use the following procedure:
· Aim the instrument at the number plate area of the target vehicle and squeeze the trigger. A low-pitched growl begins; indicating the instrument is trying to acquire a lock on the target.
· Keep the trigger pressed and the instrument sighted on the target until operators hear a beep. A high-pitched beep means that a speed was captured; a low-pitched beep that a measurement error occurred.
The speed calculated for the target displays in the LCD and in the scope. If the target was going away when it was measured, the speed displays as a negative number; if the target was approaching, the speed displays as a positive number.
As long as the trigger is kept pressed, the UltraLyte instrument may retry the speed measurement, depending upon its configuration, up to 10 times or more. Consequently, it is very important that the aiming point on the target remain constant for the entire measurement time. If operators move the instrument off the aiming point, it cannot capture a speed-reading and displays an error message.
…
Line of Sight
Operators must at all times have a clear line of sight to the target vehicle. If an object intersects the beam while a velocity measurement is being taken, an error message is displayed.
…
ERROR CONDITIONS
Error conditions can occur in a measurement or in system hardware. To make sure operators never get an erroneous speed-reading, the UltraLyte monitors both the system and the measurement. When the instrument detects an error condition, it displays an error code instead of a speed.
…
TESTING DISPLAY INTEGRITY
…
Fixed Distance Check
The fixed distance test requires only one target. For uniformity, it should be a set distance from the test mark.
There are set ranges at every police station and patrol base. If operators are unable to locate the test markets contact Radio and Technical Support.
[Diagram omitted]
The test procedure is as follows:
1.Stand on the shooting mark and aim the UltraLyte at the target. Squeeze and release the trigger.
2.Check the back panel screen. The speed-reading should be zero. (A reading of zero verifies the timing accuracy of the instrument, and is identical in nature to an accurate velocity reading of a vehicle moving at any speed.) The displayed distance should read .to plus or minus 0.2 metres.
The above excerpts from the General Order are relevant to the first, second and fourth grounds of appeal and the challenges made by counsel for the appellant to the magistrate’s findings regarding Constable Thompson’s evidence.
As I have said, Constable Thompson was cross-examined in detail about his compliance with Appendix B of the Police General Order. The magistrate found at [38] that his testing was done and occurred in accordance with what was required.
The respondent submitted that there was no legislative requirement for the operator of the laser gun to either be in possession of the annual calibration certificate relating to that gun or for it to be tendered as part of the prosecution case. As I have said, the field test required Constable Thompson to check the calibration stickers. Ms Halliday further submitted that both in the case of the Australian Standard and in the case of the Police General Order there was no adoption of either in the relevant legislation. She submitted that no intention to incorporate those concepts into the legislation can be made out from the legislation. She submitted that Parliament could easily have achieved that outcome if that was the intention of the legislation.
Examples of such an intention can be found in the Road Traffic (Miscellaneous) Regulations 1999 (SA) where the Australian Standard has been adopted in relation to requirements for helmets and seatbelts. Another example is in the Development Regulations 2008 which expressly adopt the Building Code of Australia, which in turn expressly adopts the Australian Standard.
Ms Halliday submitted that the decision of Doyle CJ in Police v Henwood (2005) 92 SASR 15 is relevant. In that matter it was argued that procedures recommended in a General Order were not followed and therefore the statutory presumption relating to the accuracy of a breath analysis reading provided for in the Road Traffic Act 1961 (SA) did not arise. The General Order gave a 15 minute waiting period which was suggested in the Order as a time to wait, after someone who is providing a breath sample, vomits or belches. It was argued that the recommendation in the Order was a requirement or procedure as defined in the relevant section of the Road Traffic Act 1961.
Doyle CJ held that the Road Traffic Act 1961 did not authorise or contemplate the establishment of a requirement such as the waiting period in the Order.
His Honour said at [26]:
[26]The issue on appeal is whether s 7.4 of the Order had to be complied with before the concentration of alcohol, indicated by the breath analysing instrument as being present in the blood of Mr Henwood, could attract the statutory presumption. On the findings of fact that the magistrate must have made, less than 15 minutes elapsed between Mr Henwood belching and the breath analysis in question.
His Honour went on to say at [54] and [55]:
[54]The obstacle to the success of Ms Fuller’s submission is, ultimately, that the RTA does not authorise the Commissioner to establish “requirements and procedures in relation to breath analysing instruments and breath analysis under” the RTA or under a statutory instrument. What the Commissioner has said in s 7.4 of the Order, or elsewhere in the Order, about conducting a breath analysis is not authorised (in the sense of deriving its legal effect) by anything in the RTA, either directly or as a result of the RTA authorising the Commissioner to make a statutory instrument on that topic.
[55]To say this is not to say that the Commissioner cannot issue such orders to members of SA Police in relation to breath analysing instruments or breath analysis. The validity of the Order, and of s 7.4 in particular, was not raised before me. What I have said does not imply any doubt about the validity of the Order. I do no more than make the point that the provisions of the Order, and of s 7.4 in particular, are not picked up by s 47G(1) as “requirements and procedures in relation to breath analysing instruments and breath analysis”. Accordingly, they are not a condition of the availability of the statutory presumption.
In Henwood the magistrate had excluded evidence of the reading and therefore the presumption under s 47(b)(1) of the Road Traffic Act. His Honour held that the evidence was wrongly excluded.
It is my view that the reasoning of Doyle CJ is apposite to this case. That appears to be so certainly in relation to the argument regarding the effect of police orders. I can see no difference in principle to the Australian Standard. It may be that the analogy is stronger again in the case of the Australian Standard. It remains the fact that neither the Police General Order nor the Australian Standard have been embraced by the legislature which, as Ms Halliday points out, was an easy step to take. There is simply no legislative backing for the use of the General Orders or the Australian Standard as a necessary prerequisite before invoking the statutory presumption of the certificate in s 175(3)(ba).

In Police v Bulgin [2010] SASC 143, White J dealt with s 175(3)(ba) in considering whether a magistrate had erred in refusing to admit into evidence certificates pursuant to both s 79B(10) of the Act and s 175(3)(ba). That matter involved the use of a speed camera.
White J held that the fact that there had been non-compliance with the camera’s operating instructions did not preclude the admission of the certificates into evidence. He held that it was not necessary for the prosecution to prove that the camera was in proper working order as a precondition to the tender of the certificates.
In that matter the Road Traffic (Miscellaneous) Regulations 1999 provided the requirements for both the means of operation and for the basis of testing the camera. His Honour said at [22]:
[22]… The question on the voir dire in relation to the alleged offence of 7 June 2007 was solely that of whether there had been non-compliance with the police and manufacturer’s operating instructions with the resultant possibility of an unreliable reading.
White J dealt with regulation 19(1)(a) and said at [26]:
[26]Regulation 19(1)(a) does contain requirements with respect to the programming, positioning and operation setting of a speed camera. It is apparent that those requirements are designed to minimise the possibility of mistaken or faulty recordings by a speed camera. However, the regulation does not require that a speed camera be programmed, positioned and set to operate in accordance with the operating instructions of the police themselves, or of the manufacturer. …
His Honour referred to Police v Henwood and said at [30]:
[30]… However, it is one thing to say that the prosecution must prove the good order and proper operation of a speed camera: it is another thing to hold that it must do so before it can invoke the statutory aids to proof in s 79B(10)(b).
He went on to say at [31]:
[31]The respondent submitted that proof that the speed camera was in good order and properly operated must be a condition of the admissibility of the s 79B(10) certificate because, if it was otherwise, the effect of the statutory aids to proof in s 79B(10) would be to impose upon the defendant the obligation to prove that the speed camera was not in good order and properly operated. …
His Honour said at [37]:
[37]An inference that the speed camera was in good operating order at the relevant time could be drawn from a certificate tendered under s 175(3)(ba) as to the accuracy with which the speed camera registered speeds on the relevant date. Again, this would not be conclusive evidence about the good operating condition of the camera but it is evidence from which such a conclusion could be drawn.
Mr Woods attempted to distinguish this decision on the basis that it was a camera offence and dealt with s 79B(10) which brought into play regulations containing specific criteria relating to the machine in question. No such regulations exist for laser guns. Whilst Bulgin can be distinguished in some ways, it seems to me that the reasoning employed by White J in the passages which I have set out above is contrary to the tenor of the submissions made by Mr Woods. It is also correct that it was a case on its own facts. Notwithstanding that, however, the comments and reasoning employed by White J are relevant and instructive in relation to this matter.
Likewise in relation to Police v Henwood, the fact that the decision related to a different section of the Road Traffic Act 1961 is not to the point because once again the case is instructive in relation to the use which can be made of Police General Orders and whether those orders can be adopted into the Act despite any legislative intention to do so.
In my opinion both cases are persuasive in convincing me that the arguments put by Mr Woods in relation to ground 1 on the appeal do not succeed.
It was not necessary, in my view, for the prosecution to prove, prior to the admission of the P4 certificate, that the laser gun was in good operating order. Section 175(3) imposes on the appellant what has been termed the “persuasive onus” of establishing on the balance of probabilities that the recording by the laser gun was inaccurate. That relates to the appellant’s third ground of appeal and I will deal with that later in these reasons.
The appellant’s second main point on the first ground of appeal was the lack of the satisfactory field testing of the laser gun on the day in question.
Constable Thompson stated both in examination-in-chief and in cross-examination that he conducted the field tests both at the commencement and completion of his shift on 2 January 2008. He was challenged on this point. In cross-examination Constable Thompson admitted that his note confirming the 3.00 pm field test was actually written at 7.30 am, in anticipation of doing the afternoon test, and so there was no contemporaneous note of having done the test. His affidavit did not mention the 3.00 pm test. However, he stated that he always did the end-of-shift field test and explained the procedure he followed every time. He said he had a “very clear recollection” of that day. The tests were described as follows:
The first thing we do is the integrity test … [then you] conduct the tone test … Then to do the range test it’s merely a matter of pulling the trigger, targeting a wall or a fixed object at one of the range sites at Sturt.
Constable Thompson explained placing the laser gun over the mark, aiming at the wall and pulling the trigger. He said, in relation to the accuracy of the field test, that:
The whole process is dependent on placing that laser while you’re standing over a mark – it varies between 49.9 or 24.9 and usually I find it comes pretty well accurately on either 50 or 25, depending on which range. But, yes, it can vary and you just have to check to make sure that you’re directly above the mark.
Constable Thompson stated that he would perform the test, repositioning himself over the mark, until a correct reading of 50 or 25 was reached. He said:
… it’s just a matter of whether you’ve positioned the UltraLyte directly over the target and just a matter of rechecking whether it is directly over and trying again.
He said that at the end of the shift:
We take our laser out of the laser holder of the motor cycle. We walk about three metres to the range or we do it on the way in. We record it, place it in the equipment room, sign it off and that’s the end of our day.
Mr Woods challenged Constable Thompson on the fact that he did not know what the accepted variances, or tolerances, were in the distance field test. However it is clear from the evidence that while Constable Thompson could not answer those questions, his evidence of how he conducts the field test makes it clear that he conducts the test with an accepted variance of 0.2 metres in mind.
As I have said, the magistrate analysed Constable Thompson’s evidence in relation to the tests he carried out and she was satisfied that he had done so appropriately. There is no obvious error in the magistrate’s finding in this regard. She was entitled to come to that conclusion.
In my view, it is not good practice for an officer to pre-empt, at the start of the day, the result of the test that he has to perform at the end of each day. The officer should not have made the entry in the morning in anticipation of a correct test later that day. The magistrate was, however, aware of this and found, notwithstanding the procedure adopted, that the officer performed the testing in accordance with the requirements that I set out earlier in these reasons. It cannot be shown that the magistrate erred in this conclusion. There was evidence to support such a conclusion.
The second ground of appeal raised by the appellant related to the actual operation of the instrument and as to the officer’s actual use of the instrument at the time. Once again, the magistrate made findings in this regard in favour of Constable Thompson. The appellant submitted that there is good reason to disturb those findings because of suggested errors made by Constable Thompson.
The appellant argued that Constable Thompson made errors on 2 January 2008 in the recording of notes. These are related to handwritten notes recorded by him at the site which are clearly deficient. The deficiencies complained of relate to the recording of the conversation between Constable Thompson and the appellant on the day, the notations made of the field testing done, as I have already described, the note made of where he set up the laser gun, and a notation relating to another motorist.
Her Honour dealt with the suggested errors made by Constable Thompson in her reasons and concluded that the evidence was reliable. The magistrate set out her findings after considering the suggested errors: see reasons of magistrate at [36]-[48]. Her Honour was entitled to make that conclusion. In fact it was Her Honour’s conclusion that it was the appellant and not Constable Thompson who made significant errors in relation to the location where the laser gun was operated. On appeal, Mr Woods also submitted that Constable Thompson could not have operated the laser speed gun correctly when he was not aware of “panning” and “sweep” errors. However, there is evidence to support the magistrate’s findings that Constable Thompson operated the gun in accordance with the General Order, as I have set out earlier in these reasons. Again there is no reason to interfere with Her Honour’s findings in that regard.
The appellant’s third ground of appeal is that the magistrate reversed the onus of proof. The relevant section, s 175(3)(ba), as I have said, although creating a presumption, allows for the presumption to be rebutted on the balance of probabilities. The appellant bore the onus in that regard. The magistrate found that that onus had not been discharged: see Police v Bulgin [2010] SASC 143 at [46] per White J and Evans v Benson (1986) 46 SASR 317 at 319. I have dealt with Her Honour’s findings. The decisions above outline the basis for the reversal of the onus of proof in these matters. In my view, the magistrate did not err in this respect.
The appellant called evidence to rebut the presumption of accuracy at trial. Her Honour dealt in some detail with the defence case in her reasons at [28]-[35]. Having considered the appellant’s evidence, the magistrate made her findings. In simple terms she preferred the evidence of Constable Thompson but made the observations regarding the appellant which I have set out earlier in these reasons at [11]. She went on to say at [43]:
[43]… I accept that the defendant has an exemplary driving record and is no doubt in the usual circumstances, a careful driver. In all of the circumstances, it is in my view that in following up on the concerns raised by the resident at number 80, and because the defendant was not feeling particularly well at the time, he made a mistake about the location where he was stopped. His attention to, and recollection of, the speed at which he was travelling is likely to similarly have been affected.
The magistrate was entitled to conclude, as she did, that the evidence of the appellant did not rebut the presumption of accuracy on the balance of probabilities. No error in this process has been demonstrated.
Finally, it was submitted as a fourth ground that the appeal should be allowed because the findings were unsafe and unsatisfactory and against the weight of evidence. I have already dealt with the relevant findings, and it is my view that this ground of appeal must fail. As I have said earlier, the findings were available on the evidence before the magistrate. It is true that other findings in favour of the appellant may also have been available but Her Honour was entitled to make the findings she did.
Conclusion
Many of the complaints made in this appeal revisited the challenges which were made in the Magistrates Court to the factual basis of the alleged speeding of the appellant. The magistrate had the ability to see and hear the witnesses, and on the basis of the conflicting evidence she made a decision as to the defence challenge on the prosecution’s evidence. It cannot be illustrated that Her Honour has erred in her assessment of the evidence.
In relation to the legal onus on the appellant, Her Honour found on the whole of the evidence that that had not been discharged. Once again, an appeal court cannot interfere in the absence of demonstrable error. There is no such error obvious.
I have dealt in some detail with the main ground argued on appeal. The presumption that the certificate tendered pursuant to s 175(3)(ba) as proof of the facts certified creates just that, namely, a presumption. It can be rebutted by proof to the contrary. Her Honour held, correctly in my view, that it had not been rebutted.
Accordingly, the appeal is dismissed.