Tsakonakos v Police
[2007] SASC 149
•4 May 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TSAKONAKOS v POLICE
[2007] SASC 149
Judgment of The Honourable Justice Gray
4 May 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF TRIAL JUDGE
Appeal against conviction - appellant convicted of the offence of driving at a speed exceeding the default speed limit of 50 kilometres per hour, contrary to Rule 20 of the Australian Road Rules - whether the Magistrate failed to explain the nature of the proceedings or the allegations the subject of the charge - whether the Magistrate failed to explain the evidence tendered and its legal implications - whether the Magistrate displayed bias in assisting the prosecution - whether the police were involved in corruption in doctoring photographic evidence - Held:appeal dismissed.
Australian Road Rules rr20, 25; Road Traffic Act 1961 (SA) s 53A, 79B, 80, 175; Road Traffic (Miscellaneous) Regulations 1999 r 15(b)(i), referred to.
R v White; R v Piggin (2003) 7 VR 442; McPherson v The Queen (1981) 147 CLR 512; R v Gidley [1984] 3 NSWLR 168; Cooling v Steele (1971) 2 SASR 249; Moore-McQuillan v Police (1998) 196 LSJS 488; Hittmann v Police (1999) 202 LSJS 132; Gould v Police [2005] SASC 297; Pezos v Police [2005] SASC 500, considered.
TSAKONAKOS v POLICE
[2007] SASC 149Magistrates Appeal
GRAY J
This is an appeal against conviction.
On 2 June 2006, a Magistrate following a trial convicted Lewey Tsakonakos, the defendant and appellant, of the offence of driving at a speed exceeding the default speed limit of 50 kilometres per hour, contrary to Rule 20 of the Australian Road Rules.[1]
[1] Applying Rule 25 of the Australian Road Rules.
The substance of the prosecution case was that the appellant’s vehicle was detected on 27 April 2005 being driven on Fowles Street, Barmera at a speed of 65 kilometres per hour in a 50 kilometre per hour zone. Following his conviction, the appellant was ordered to serve 50 hours community service and pay costs and levies of $655.00.
Before coming to discuss the prosecution and defence cases and the reasons of the Magistrate, it is convenient to first discuss the statutory offence and the evidentiary aids available to the prosecution.
Rule 20 of the Australian Road Rule:
A driver must not drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving.
Offence provision.
Note 1—
The rules about speed-limits are as follows:
• rule 21—speed-limit where a speed-limit sign applies
• rule 22—speed-limit in a speed-limited area
• rule 23—speed-limit in a school zone
• rule 24—speed-limit in a shared zone
• rule 25—speed-limit elsewhere.
Rule 25 of the Australian Road Rules provides:
(1)If a speed-limit sign does not apply to a length of road and the length of road is not in a speed-limited area, school zone or shared zone, the speed-limit applying to a driver for the length of road is the default speed-limit.
...
(2)The default speed-limit applying to a driver for a length of road in a built-up area is 50 kilometres per hour.
As a result of these Rules, the prosecution was required in the present proceedings to prove:
-that the appellant was the driver of a vehicle;
-on a length of road that was in a built-up area, particularised as Fowles Street;
-to which a speed limit sign does not apply and which is not a “speed-limited area”, “school zone” or “shared zone”;
-that the vehicle was driven at a speed in excess of the default limit of 50 kilometres per hour, in particular at a speed of 65 kilometres per hour.
It is relevant to point out that the Australian Road Rules form a body of road rules to be applied consistently throughout Australia. Each State has enacted essentially similar provisions. In South Australia the Australian Road Rules have force and effect as rules made by the Governor pursuant to the provisions of section 80 of the Road Traffic Act 1961 (SA). That Act provides:
The Governor may make—
(a)rules (Australian Road Rules) to regulate traffic movement, flows and conditions, vehicle parking, the use of roads, and any aspect of driver, passenger or pedestrian conduct; and
(b)regulations to deal with matters ancillary to this Part and the Australian Road Rules and to make miscellaneous provisions relating to matters of a kind referred to in paragraph (a).
The general regulation-making power under the Act is also a sufficient source of power for the enactment of the Australian Road Rules.
Evidentiary aid provisions available to support a prosecution are found in the Road Traffic Act. Rule 20 and Rule 25 of the Australian Road Rules are prescribed offences for the purposes of section 79B and section 175 of the Road Traffic Act.[2] Section 79B(10) provides:
[2] Road Traffic (Miscellaneous) Regulations 1999 rule 15(b)(i).
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
(c)where it is also certified in a document of a kind referred to in paragraph (b) that the device was designed and set to operate according to a specified system during that period, it will be presumed, in the absence of proof to the contrary, that the device was designed and set to operate according to that system during that period and did, in fact, so operate.
A further evidentiary aid is provided in section 175 of the Road Traffic Act, which relevantly provides:
(1) In proceedings for an offence against this Act, an allegation in a complaint that—
(a) a specified place was a road or road-related area, or a specified kind or portion of road or road-related area; or
...
(i) a specified person was the owner, operator, person in charge or driver of a specified vehicle,
is proof of the matters so alleged in the absence of proof to the contrary.
(3) In proceedings for an offence against this Act—
...
(b) a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or by any other member of the police force of or above the rank of inspector, and purporting to certify that a specified stopwatch or speedometer 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 relevant instrument was accurate to that extent on the day of the test and—
...
(ii)in the case of a speedometer—throughout the 3 month period following and the 3 month period preceding the day of the test,
for the purpose of measuring the speed of any motor vehicle, whether or not the speed measured differed from the speed in relation to which the stopwatch or speedometer was tested or the circumstances of the measurement differed in any other respect from the circumstances of the test;
(ba) a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or by any other member of the police force 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 6 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;
...
(4)For the purposes of subsection (3)(ba), a traffic speed analyser will be taken to have been mounted in a fixed housing at the time of measuring the speed of a motor vehicle if it was, at that time, mounted in a structure that was affixed to the ground at the particular location with the prior approval of the Minister.
At trial, it was the prosecution case that the appellant had driven in a 50 kilometre zone at 65 kilometres per hour and thereby breached the provisions of the Australian Road Rules. The prosecution case was said to be proved by the evidence led in the trial and the application of evidentiary aids – a photograph with notations and certificates of accuracy.
At trial, it was accepted that the appellant was the driver of the vehicle at the location and on the occasion, the subject of the charge.
On the prosecution case, the appellant was travelling from north to south on Fowles Street, Barmera. He was detected by a speed analyser as his vehicle approached the intersection of Fowles Street and Farmer Street and Hardwick Street. Fowles Street was a road in a “built-up area”, there being buildings on land next to the road. It was not in dispute that the speed limit at the location was 50 kilometres per hour.[3]
[3] The allegation in the complaint that there was no speed limit sign operating on that length of road, and that the road was not marked by signs as a “speed-limited area”, “shared zone” or “school zone”, was sufficient proof, in the absence of proof to the contrary, pursuant to section 175 of the Road Traffic Act.
The speed analyser was set up in accordance with the requirements identified in section 79B(10)(b) of the Road Traffic Act. It is evident from the denotation printed on the frame of the photograph, that it was programmed at a speed limit of 50 kilometres per hour.
The speed at which the vehicle was being driven was detected by a gazetted traffic speed analyser, a Traffipax Speedoshot II.[4] It had been certified to be accurate for the purposes of the presumption in section 175(3)(ba) of the Road Traffic Act. In combination with the certificate of accuracy of the speedometer of the vehicle against which it was tested, the analyser could be seen to be accurate. Further, the analyser is a photographic detection device. That device was relevantly certified under section 79B(10)(b) and (c). The photograph and denotations marked on the frame were admissible as proof of their contents pursuant to section 79B(10) of the Road Traffic Act.
[4] See section 53A of the Road Traffic Act.
There was a proper basis for finding beyond reasonable doubt that the appellant’s vehicle was travelling at a speed of 65 kilometres per hour.
The Defence Case
At trial, the appellant gave evidence and called two witnesses in support of the defence case. It was his case that he had not been speeding. He claimed that the speed analyser taking the relevant photograph was in a vehicle positioned further north and much closer than his point of entry onto Fowles Street. He claimed that there was insufficient time for his vehicle to attain a speed of 65 kilometres per hour before it reached the point where he said his vehicle was photographed. He had attended the scene and taken a number of photographs depicting what he said was the location of the vehicle and camera.
A further ground of defence advanced at trial was that the speed analyser carried a margin of error and that as a result the information as to speed recorded was not reliable. One of the defence witnesses claimed to have been travelling behind the appellant that morning. His evidence generally confirmed the defence case as to the position of the vehicle and camera. The other witness gave evidence that on prior occasions the vehicle with the camera had been in the same location as claimed by the appellant on this occasion.
It is relevant to record that a transcription of the second day’s hearing has been lost. On the second day, the defence witnesses were called, final submissions were made and an ex tempore judgment delivered. All that remains of that day’s proceedings are the first nine pages of the Magistrate’s reasons. A letter on file from the Magistrate provided an explanation for what occurred. The Magistrate’s notes from which he delivered his ex tempore reasons have been provided in both handwritten and typed form. Those notes provide an adequate summary of the balance of the Magistrate’s reasons.
Fairness at Trial and Asserted Bias
On appeal, the appellant complained that the Magistrate failed to explain the nature of the proceedings or the allegations the subject of the charge, the evidence tendered and its legal implications. The appellant did not identify any specific disadvantage or point to any evidence that he would have tendered or any submission that he would have made, but did not. The appellant also asserted the Magistrate was biased in that he assisted the prosecution.
The duty of a trial Judge or a Magistrate conducting a trial with a self-represented defendant has been the subject of considerable authoritative discussion. In White,[5] Chernov JA observed:[6]
The courts have recognised…that, where the accused is unrepresented, a trial judge has considerable discretion not to apply strictly the procedural and evidentiary rules that would otherwise operate notwithstanding that strict adherence to such rules may be required of the Crown. The extent to which the trial judge may give the accused such leeway, or the extent to which the trial judge may be required to inform him or her of the legal position as to the substantive and procedural issues in the case and the degree to which the judge may properly intervene in the conduct of the trial in order to achieve its effective conduct while ensuring that it is not unfair to the accused, will obviously depend on the circumstances of the case. But the general position seems to be that there is a trend towards requiring more judicial intervention in the conduct of a criminal trial in order to achieve the twin objectives of efficiency and fairness.
[5] R v White; R v Piggin (2003) 7 VR 442.
[6] R v White; R v Piggin (2003) 7 VR 442 at [38] (footnotes omitted).
The duty of the trial Judge is not to advise the unrepresented defendant how to conduct the defence case but to ensure that the defendant is fully aware of the legal position in relation to the procedural and substantive aspects of the case, thereby putting the defendant in a position in which he or she can make effective choices. This necessity arises from the Judge’s duty to ensure that the trial is fair.[7] As Hunt J observed in Gidley:[8]
The duty of a trial judge to ensure that every accused has a fair trial thus obliges him to give an accused who is unrepresented such information and advice concerning his rights as is necessary to put him in a position where he can make an effective choice whether he should exercise those rights, but the trial judge must make it clear that he is not advising the accused either that he should exercise those rights or how he should conduct his case. Contrary to the submission of the accused in the present case, it is not part of a trial judge’s duty to advise an unrepresented accused against the tender of prejudicial material. It may be that in a particular case a trial judge will be obliged to advise an unrepresented accused of the likely prejudicial consequences of a course which he is proposing to undertake so as to enable the accused to make an effective choice as to whether or not he should persist in that course, but the choice must remain that of the accused. There is no obligation upon the trial judge to do more. He may express his own opinion as to what would best serve the interests of the unrepresented accused if he feels it is appropriate but he is not under any obligation to do so, and his omission to give such advice does not amount to an error of law.
[7] McPherson v The Queen (1981) 147 CLR 512 at 546-547 (Brennan J); see also at 535 (Mason CJ).
[8] R v Gidley [1984] 3 NSWLR 168 at 181.
These principles have long been applied in this State. In Cooling v Steele,[9] Wells J observed:[10]
In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.
[9] Cooling v Steele (1971) 2 SASR 249.
[10] Cooling v Steele (1971) 2 SASR 249 at 251.
Similarly, in Moore-McQuillan,[11] Bleby J observed:[12]
[A] magistrate, despite busy lists and the need for expedition, must ensure that a self-represented litigant is not denied a fair hearing through ignorance of the basic procedures of the court and of the rules with which he must comply in presenting his case. It is not for a magistrate to advise a litigant on the law or his rights. However, he or she must ensure that a self-represented litigant at least understands that there are rules under which parties must proceed, and ensure that he or she is not deprived of a fair hearing by virtue of a failure to bring to that party’s attention some of the more obvious rules which are second nature to legal practitioners and those who regularly appear in the courts. The court does have an obligation to protect a litigant in person from any apparent procedural disadvantages that such a party may suffer simply through ignorance of particular procedural rules.
In Cooling v Steele, … Wells J had occasion to give a warning about the need for magistrates to be vigilant in ensuring that unrepresented litigants, at the various stages of a hearing on a plea of guilty to an offence, were not ignorant of their rights and duties. I have recently had occasion to refer to and adopt the principles to which His Honour there referred (Taylor v Police, unreported judgment S6540…). The general observation of Wells J which I repeat was (ibid at 251):
“In general, the court should ensure that the defendant is appraised of his rights and duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.”
His Honour was there speaking of an unrepresented defendant on entering a plea of guilty. The remarks apply with equal, if not greater force, to an unrepresented litigant’s understanding of the more complex procedures involved in a contested hearing.
[11] Moore-McQuillan v Police (1998) 196 LSJS 488.
[12] Moore-McQuillan v Police (1998) 196 LSJS 488 at 496-497.
More recently, the foregoing principles have been considered and adopted in Hittmann,[13] Gould[14] and Pezos.[15]
[13] Hittmann v Police (1999) 202 LSJS 132.
[14] Gould v Police [2005] SASC 297.
[15] Pezos v Police [2005] SASC 500.
It would appear from the reasons and transcript in the present case that contrary to the appellant’s assertion, there were ongoing steps taken by the Magistrate to ensure the appellant understood the nature of the prosecution case and the relevant evidence presented. The Magistrate made frequent and repeated explanations to the appellant of the evidence led by the prosecution and of the implications that might arise from that evidence. The Magistrate sought to avail the appellant of any opportunity that might assist him in the presentation of his defence. It is evident that the Magistrate took considerable care to ensure that he understood what was being put by the appellant. The appellant was assisted in presenting issues of dispute to the police witness. Explanations were offered as to why certain questions should not be put. The Magistrate took steps to assist the appellant with the seeking and arranging of a view.
The allegation of bias should be rejected. There was no clear basis articulated to support the allegation. There was nothing in the transcript to suggest any bias.
On the hearing of the appeal, the appellant appeared in person. He presented oral submissions partly by reading from a prepared text and partly by making oral submissions. In the course of those submissions, he spoke of alleged police corruption and of the photograph being “mocked up”. These were serious allegations, which were no more than mere allegations on the appeal. They were based on the appellant’s assertion that the speed analyser has never been positioned at the place where it must have been to have taken the photograph. The appellant submitted that the speed analyser has always been positioned in a different place on Fowles Street, on top of a hill where it is harder for motorists to detect. When the Court, on appeal, undertook a view of Fowles Street, it was clear that the speed analyser could not have taken the photograph that was exhibited if it had been positioned where the appellant submitted it was. On this basis, the appellant suggested that the photograph may have been doctored. In submissions on appeal, the appellant stated:
That the police are corrupt and a law unto themselves is a well documented fact.
…
I truly hope to show the court that the – I’ll refer to it as a cam car – I truly hope to show the court that the cam car couldn’t and wouldn’t have been where it is alleged by the police … There are rarely cars parked there. A cam car would stick out and the template too easy to deter. Where the cam car was is right on top of a hill where there are official looking cars parked due to the irrigation department there.
…
It’s no lie. The cam car was as ever on top of the hill there’s no question of that. The dilemma here is whether the police can shift the goal posts anytime they like with the court’s blessing.
These assertions were unsupported by any evidence. The allegations should be rejected. The information before the Court disclosed no basis at all for the allegations.
The Magistrate in lengthy and careful ex tempore reasons reviewed the evidence led by the prosecution in some detail and carefully considered the evidentiary aids. He reached the conclusion the offence was proved beyond reasonable doubt. The Magistrate observed:
The defendant having pleaded not guilty, the onus was on the prosecution to prove each element of the offences beyond reasonable doubt before the defendant could be convicted. The prosecution case consisted of evidence from Acting Senior Sergeant Robert Cyrus and seven exhibits being tendered.
I found a case to answer at the end of the prosecution case. There were no submissions made by the defendant on the case to answer, but given that he is not legally trained, that is not surprising. Therefore, I took particular note of the prosecution evidence to ensure that there was a case to answer, notwithstanding the lack of submissions.
Having found a case to answer, the defendant gave evidence and called two witnesses, Paolo Centofanti and Craig Hooper. The defendant also tendered 10 exhibits.
I attempted to assist [the appellant] in presenting his case and explaining the law to him, but he has had difficulty understanding the evidentiary nature of the exhibits tendered as part of the prosecution case and little idea of the laws of evidence and the relevance of certain parts of evidence I have heard.
…
The prosecution sought to prove the accuracy of the Traffic Speed Analyser at that time by the use of other certificates which are allowed under the provisions of the Road Traffic Act. First of all, the first exhibit tendered, which was Exhibit P1 is a short copy of the South Australian Government Gazette dated 30 September 1999 at page 1342. Under the provisions of the Road Traffic Act, section 53A, the division which deals with Traffic Speed Analysers and radar detectors, it states that the Governor may by notice published in the Gazette approve apparatus of a specified kind as Traffic Speed Analysers. The Governor may, by subsequent notice vary or revoke any notice under this section.
Therefore, I must be satisfied beyond reasonable doubt that the Traffic Speed Analyser serial number BC in conjunction with Camera number BC was an approved Traffic Speed Analyser approved by the Governor.
The “notice”, exhibit P1 indicates that pursuant to section 53A of the Road Traffic Act 1961 and with the advice and consent of the Executive Council, the then Governor approved apparatus of the following kind as a Traffic Speed Analyser:
Traffipax Speedophot II
That occurred on 30 September 1999. From that notice I am satisfied beyond reasonable doubt that a Traffipax Speedophot II is an approved Traffic Speed Analyser and was so approved on 27 April 2005.
Whilst satisfied beyond reasonable doubt that a Traffipax Speedophot II was an approved speed analysis device, am I satisfied that that was the speed analysis device used on this occasion and that it was accurate?
…
Before me the certificate pursuant to section 175(3)(ba) has at the bottom, ‘Officer of Police’ and what appears to be a signature, and above ‘Rank’ Inspector with a date 26 May 2006. I am satisfied that this a document which purports to be signed by a member of the police force of the rank of Inspector …
There is no evidence, that is proof to the contrary that can dispute the contents of that certificate.
At trial there was no attempt to challenge the evidentiary aid material including the relevant certificates. However, as the appellant was unrepresented on the appeal, the Court requested counsel for the Crown to take the Court through the use made by the Magistrate of the evidentiary aid provisions.
In the result, I am satisfied that there can be no complaint in regard to the above findings. The prosecution had made out a case to answer. There was a presumption in the circumstances that the defendant’s vehicle was travelling at 65 kilometres per hour in a 50 kilometre per hour zone.
It is evident that the Magistrate rejected the evidence of the appellant and his witnesses. As earlier observed, during the defence case photographs were produced showing where on the defence case the photographic detection device had been positioned. A view was undertaken by the Magistrate. It was open to the Magistrate to conclude that the photograph taken by the camera showing the appellant’s vehicle was taken at a point on the road where the appellant could have attained a speed of 65 kilometres per hour. This is evident from a comparison of identifying features shown in the photograph and matching those features to the scene. The Magistrate concluded that the photograph was taken where the police said it had been taken. On the hearing of the appeal, a view was taken. The conclusion of the Magistrate in this respect is plainly correct.
The photographs used by the appellant did not show the relevant position of the vehicle and camera. The Magistrate did not reach the conclusion that the appellant was being dishonest in presenting his photographs. Rather, he treated the presentation of this material as resulting from the appellant’s misunderstanding of what had occurred.
On the hearing of the appeal, it appeared that the appellant had the firm belief that he had not been speeding and that he had been “set up” by the police. I reached the conclusion that the appellant was genuine but mistaken in his belief.
The significance of the evidence of Centofanti for the appellant’s purpose was that the position of the photographic detection device was said to differ from the location identified by the police. That evidence was elicited and considered. It was evidence that was implausible having regard to the photographic evidence as understood following the view.
The Magistrate’s notes make it plain that he found no assistance from Mr Centofanti’s evidence. He formed the view that Mr Centofanti might be confused about the time of the offence and was recalling a different occasion. The other defence witness described where the photographic detection device was positioned on different occasions. The evidence was of little or no relevance.
It was open to the Magistrate to reject the appellant’s evidence. There was a clear basis for him to do so considering the appellant’s assertions of the position of the car and camera at the scene. There was no credible evidence that affected the strength of the presumptions earlier referred to.
For these reasons this appeal should be dismissed.
The appellant should pay the respondent’s costs fixed at $150.00.