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…

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 Such v Police

Details

AGLC: Such v Police [2010] SASC 274
Case: [2010] SASC 274
Decision Date: 2 September 2010

CaseChat Overview and Summary

In this case, the appellant appealed against his conviction for speeding, contending that the magistrate erred in accepting the certificate of accuracy for the laser speed gun and other evidence provided by the prosecution. The case was heard in the Supreme Court of South Australia. The primary dispute centred around the admissibility and sufficiency of the evidence presented by the prosecution to prove the appellant’s guilt beyond reasonable doubt. The appellant argued that the magistrate erred in finding that the certificate of accuracy for the laser speed gun constituted proof of its accuracy and that the officer who operated the gun was properly trained and that the device was used correctly.

The legal issues before the court were whether the magistrate correctly interpreted and applied the law regarding the presumption of accuracy of the laser speed gun as per Section 175(3)(ba) of the relevant legislation and whether the magistrate’s findings were supported by the evidence. The court had to determine if the magistrate’s decision to convict the appellant was based on a proper assessment of the evidence, considering the certificate of accuracy and the officer’s testimony. Additionally, the court examined whether the appellant had discharged the onus of proof to rebut the presumption created by the certificate.

The court found that the magistrate had appropriately applied the law and correctly assessed the evidence. The certificate of accuracy, signed by an Inspector of Police, created a presumption of accuracy as per the statute, which was not rebutted by the appellant. The court held that the magistrate was entitled to find the police officer credible and experienced, despite some minor errors in note-taking. The discrepancies in distance estimates did not undermine the magistrate's acceptance of the officer’s evidence. The court concluded that the appellant had not demonstrated any demonstrable error in the magistrate’s assessment of the evidence and that the findings were safe and satisfactory.

The appeal was dismissed, and the conviction was upheld. The court affirmed that the magistrate’s decision was based on a proper evaluation of the evidence and that the presumption of accuracy under the statute had not been rebutted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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”.

Decision

Reasons for decision

ANDERSON J

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.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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