TIMMS v Police - [2008] SASC 293

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TIMMS v POLICE
[2008] SASC 293
Judgment of The Honourable Justice David
31 October 2008
TRAFFIC LAW - REGULATION OF TRAFFIC - TRAFFIC SIGNS AND NOTICES
TRAFFIC LAW - OFFENCES - GENERALLY
Appeal against conviction for entering intersection when traffic light showing red – magistrate allowed fresh tender of certificate during trial and refused submission of no case to answer – whether magistrate should have allowed fresh tender of certificate – whether certificate tendered was defective – whether magistrate correctly refused submission of no case to answer – whether any defences were applicable to the appellant’s evidence, if accepted, at trial.
Held: Appeal dismissed – no bar to fresh tender of certificate – certificate tendered was not defective – magistrate correctly refused submission of no case to answer – no defences were applicable to the appellant’s evidence, even if it were accepted by magistrate, at trial.
Road Traffic Act 1961 (SA) s 79B, s 173AB(1)(c); Road Traffic (Miscellaneous) Regulations reg 14, reg 17(2); Australian Road Rules r 59(1), referred to.
Le Poidevin v Police (2005) 44 MVR 322; [2005] SASC 314, applied.

TIMMS v POLICE
[2008] SASC 293
Magistrates Appeal
DAVID J.
Introduction

The appellant was found guilty by a magistrate of entering the intersection of Brighton Road, Sturt Road and Old Beach Road, Brighton on 21 December 2006 when a red traffic light was showing, contrary to r 59(1) of the Australian Road Rules (SA) (the “AAR”) and s 79B of the Road Traffic Act 1961 (SA) (the “RTA”).
The appellant had originally been issued with an expiation notice alleging the offence, but he proceeded, as he was entitled, to elect to be prosecuted. He pleaded not guilty according to s 8 of the Expiation of Offences Act 1996 (SA). He now appeals against the conviction imposed by the magistrate.
Both at trial, and on appeal, the appellant was self-represented.
The Trial
Before setting out the course of the trial, it is important to outline the relevant sections of the RTA and regulations made under it. Section 79B of the RTA states:
79B—Provisions applying where certain offences are detected by photographic detection devices
…
(2)Where a vehicle appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of a prescribed offence, the owner of the vehicle is guilty of an offence against this section unless it is proved—
(a)     that although the vehicle appears to have been involved in the commission of a prescribed offence, no such offence was in fact committed; or
(b)     that the owner, or, if the owner is a body corporate, an officer of the body corporate acting with the authority of the body corporate, has furnished to the Commissioner of Police a statutory declaration stating the name and address of some person other than the owner who was driving the vehicle at the time; or
(c)     that—
(i)if the owner is a body corporate—the vehicle was not being driven at the time by any officer or employee of the body corporate acting in the ordinary course of his or her duties as such; and
(ii)the owner does not know and could not by the exercise of reasonable diligence have ascertained the identity of the person who was driving the vehicle at the time; and
(iii)the owner, or, if the owner is a body corporate, an officer of the body corporate acting with the authority of the body corporate, has furnished to the Commissioner of Police a statutory declaration stating the reasons why the identity of the driver is not known to the owner and the inquiries (if any) made by the owner to identify the driver.
…
(10)In proceedings for an offence against this section or proceedings for a prescribed offence—
(a)     a photograph or series of photographs produced by the prosecution will be admitted in evidence if—
(i)the photograph or each of the photographs was produced from an exposure taken, or electronic record made, by a photographic detection device; and
(ii)the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with that use of the device,
and a denotation as to date, time and location that appears as part of such a photograph will be accepted as proof, in the absence of proof to the contrary, of the date, time and location at which the exposure was taken or the electronic record made by the photographic detection device; and
(b)     a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or any other member of the police force of or above the rank of inspector, and purporting to certify—
(i)that a specified device used at a specified location during a specified period was a photographic detection device; and
(ii)that the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of that device during that period,
will be accepted as proof, in the absence of proof to the contrary, of the facts so certified; and
…
Section 173AB(1) of the RTA as it was enacted at the dates of the hearing in the Magistrates Court, namely 2 January 2008 and 25 March 2008, states:
173AB—Further defences
(1)It is a defence to a charge for an offence against this Act if the person charged establishes that the conduct constituting the offence was—
(a)     authorised or excused by or under a law; or
(b)     done in compliance with a direction given by an authorised officer or police officer or an Australian Authority or a delegate of an Australian Authority; or
(c)     done in response to circumstances of emergency.
…
Regulation 14(1) of the Road Traffic (Miscellaneous) Regulations 1999 (SA) (“the Road Traffic Regulations”) states:
14—Apparatus approved as photographic detection devices
(1)Pursuant to section 79A of the Act, the following are approved as photographic detection devices:
(a)     in relation to an offence against section 46(1) of the Act, a red light offence, a speeding offence, a level crossing offence or a red light offence and a speeding offence arising out of the same incident—
(i)a Traffipax Traffiphot III-SR manufactured by Robot Visual Systems GmbH of Germany, linked to and used in conjunction with an induction loop vehicle detector;
(ii)a Traffipax Traffiphot III-SRD manufactured by Robot Visual Systems GmbH of Germany, linked to and used in conjunction with an induction loop vehicle detector;
(iii)a Traffistar SR520 manufactured by Robot Visual Systems GmbH of Germany, linked to and used in conjunction with an induction loop vehicle detector;
(iv)a REDFLEXred-speed HDX system manufactured by Redflex Traffic Systems Pty Ltd, linked to and used in conjunction with an induction loop vehicle detector;
…
Regulation 17(2) of the Road Traffic Regulations also sets out a number of provisions which must be complied with, in relation to positioning and testing of equipment, if evidence from photographic detection devices is to be used.
As can be seen from the above, the prosecution at trial is aided in a number of ways. Consistent with that, the prosecution tendered a number of documents at trial in order to establish their case. The most important of those documents for the purposes of the present appeal were exhibits P7, which consisted of two photographs tendered pursuant to s 79B10(a) of the RTA, and P10, which was a certificate signed by an Inspector of Police, tendered pursuant to s 79B(10)(b) of the RTA. The prosecution at trial also called a police officer from the Expiation Notice Branch, Sergeant Brian Todd, to explain the nature of the information on the photographs produced and how the photographic detection device worked.
All of these aids, plus the evidence of Sergeant Todd, were used to prove that the appellant’s vehicle entered the intersection when a red light was showing. At trial, the appellant objected to the tender of both of the above exhibits, and also the expert evidence of Sergeant Todd. Those applications having been refused, the appellant then made a “no case to answer” submission. As that application was also refused, the appellant then gave evidence.
In his evidence, the appellant admitted having entered the intersection when a red light was showing on the day in question, but said that he did so because there had been a lot of thunderstorm activity. He said as he approached the intersection he heard a huge crash and was blinded by an enormous lightning bolt. He froze, removed his hands from the steering wheel and then crouched, curled into a foetal position. One or two seconds later, he opened his eyes and then saw the light had turned red and that he was about to enter the intersection. He braked heavily, but could not prevent his vehicle from entering the intersection.
The Magistrate’s Decision
The magistrate found that the documents tendered, including exhibits P7 and P10, established that the appellant’s vehicle entered the intersection when a red light was showing. In particular, she found no defence had been made out pursuant to s 79B(2)(a) of the RTA, nor had any defence been made out pursuant to s 173AB(1)(c) of the RTA. In relation to the latter defence, the magistrate said:
The defendant raised a defence under s 173AB(1)(c), RTA. As indicated above, I am not satisfied on the balance of probabilities that the event as described by the defendant (that a bolt of lightning caused him to lose voluntary control) did in fact occur. In any event, the conduct referred to in s 173AB(1)(c), RTA has nothing to do with the type of response described by the defendant. It is plain from reading the section in full, that the offence relates to positive and active conduct in circumstances of emergency. The defendant’s circumstances were not of that nature.
As the argument developed before me, the magistrate was mistaken in concerning herself with the defence pursuant to that section, because that section did not come into operation until 30 April 2007.[1] It was therefore inapplicable as at the date of the offending in this matter on 21 December 2006.
[1] The section was inserted by s 39 of the Statutes Amendment (Road Transport Compliance and Enforcement) Act 2006 (SA).
Consequently, the magistrate found the appellant guilty of the charge.
The Arguments on Appeal
The appellant now argues, as he did at trial, that the photographs, exhibit P7, which were tendered pursuant to s 79B(10)(a) of the RTA were inadmissible, because the certificate, exhibit P10, which was tendered pursuant to s 79B(10)(b) of the RTA, had such imperfections as to make it inadmissible.
The appellant’s first argument in relation to the tender of exhibit P10 is that it was tendered in such circumstances as amount to unfairness. An original version of the certificate, exhibit P10, was sought to be tendered, but was withdrawn because of inaccuracies. A fresh, corrected certificate, ultimately becoming exhibit P10, was then tendered in its stead. The appellant argues that substituting the corrected version led to unfairness. There is no merit in that argument. There was no bar to the prosecution withdrawing the tender of a document and tendering a further document. If the appellant was somehow caught by surprise at the tender of the fresh document, an adjournment may have been considered, but there was no bar to the tendering of the fresh document.
A further argument presented on appeal in relation to the certificate, exhibit P10, is that the description of the red light camera was inaccurate. The photographic detection device used and certified was “Traffipax Traffiphot III SR Red Light Camera No. 23”, whereas pursuant to reg 14 of the Road Traffic Regulations, the approved photographic detection device is a “Traffipax Traffiphot III-SR, manufactured by Robot Visual Systems GmbH of Germany”. The appellant argues that the certificate is invalid as the full description has not been given.
In my view, that argument is misconceived. There was no dispute that the appropriate photographic detection device approved by reg 14 of the Road Traffic Regulations was that which was used. The fact that the description on the certificate, exhibit P10, is slightly different in detail than that described in the Road Traffic Regulations is of no moment.
The appellant also argues that nothing in the certificate sets out compliance, as required by s 79B(10)(a)(ii) of the RTA, with the extensive provisions in reg 17(2) of the Road Traffic Regulations. Once again, in my view that argument is misconceived, as the purpose of the certificate, exhibit P10, is to confirm that the photographic detection device was operated and tested in compliance with the Road Traffic Regulations. The certificate, exhibit P10, stated the following:
the photographic detection device was operated and tested in compliance with the Road Traffic (Miscellaneous) Regulations, 1999 and, the photographic detection device did operate as it was designed and set to operate in compliance with the Road Traffic (Miscellaneous) Regulations, 1999.
The prosecution also tendered a document evidencing a loop test (exhibit P13). Even in the absence of that document, specific details of compliance with the extensive Road Traffic Regulations need not be set out in the certificate.
In my view, the tender of exhibits P7 and P10 was proper.
The appellant also argues that the police officer, Sergeant Todd, should not have been allowed to give evidence because of a lack of expertise. Sergeant Todd’s evidence that he had been responsible for the day-to-day running of the Expiation Notice Branch since May 2007 and had a basic knowledge of the photographic detection devices, and his interpretation and explanation of those devices, in my view, was not essential to the tender of the photographs. They spoke for themselves. Sergeant Todd merely assisted by explaining certain details in the photographs, such as the time and what the photographs indicated. As he had worked with such devices, he was entitled to do that, although his evidence was, strictly speaking, not necessary for the tender of the photographs.
The Appellant’s Defence
If I had been of the view that the magistrate erred in finding a case to answer because there were defects in the tender of exhibits P7 or P10, I would be faced with a dilemma because, at trial, the appellant admitted driving into the intersection when a red light was showing, and that admission made out the prosecution case. Authority is unclear as to whether an appellate court, when considering whether a case to answer was properly found, should look at the whole of the evidence or only the prosecution evidence. However, as I have indicated, in my view the magistrate properly found a case to answer based on exhibits P7 and P10 and their legislative aid. If I had been of the contrary view about the admissibility of those exhibits, I would nevertheless have allowed the appeal, irrespective of the evidence the appellant gave at trial in which he admitted entering the intersection when a red light was showing.
I am also of the view that the magistrate has not erred in her decision that, on the defence case, a defence to the charge has not been established on the balance of probabilities. The magistrate had the advantage of seeing and hearing the appellant give evidence and made a finding as to his credibility. The magistrate herself raised the defence under s 173AB(1)(c) of the RTA, but as I have indicated, that was inapplicable. An offence contrary to r 59(1) of the AAR and s 79B of the RTA is an offence of absolute liability.[2] The only available defence at the time of the offence was to be found in s 79B(2)(a) of the RTA, and that is clearly not applicable to this case. There was no other defence available.
[2] Le Poidevin v Police (2005) 44 MVR 322; [2005] SASC 314.
Conclusion
I dismiss the appeal.