Van Reesema v Police - [2010] SASC 201

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
VAN REESEMA v POLICE
[2010] SASC 201
Judgment of The Honourable Justice Vanstone
30 June 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN BREACH OF SPECIFIC SPEED LIMITS
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - STATUTORY PROVISIONS AS TO PRIMA FACIE EVIDENCE - OTHER PROVISIONS - TRAFFIC OFFENCES
Appeal against conviction - appellant charged with speeding offence - suggested errors made by magistrate in finding the case proved.
Held: appeal dismissed.
Australian Road Rules Rule 20; Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 reg 51(1)(a); National Measurement Act 1960 (Cth); Road Traffic Act 1961 s, 79B(10)(a), s 79B(10)(b), s 79B(10)(c), s 80, s 175(1), s 175(3)(b), s 175(3)(ba); Evidence Act 1929 (SA) s 45A, s 45B, referred to.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, not followed.

VAN REESEMA v POLICE
[2010] SASC 201
Magistrates Appeal

VANSTONE J: The appellant was charged on complaint with speeding, contrary to Rule 20 of the Australian Road Rules. It was alleged that on 27 March 2004 at Fitzroy he was driving at a speed of about 71 kilometres per hour on a road governed by a speed limit of 60 kilometres per hour. The offence was detected by use of a fixed traffic speed analyser and photographic detection device.
After a series of adjournments the charge went to trial in the Magistrates Court at Holden Hill on 11 February 2008. The trial occupied six days in total, being interrupted for various reasons, and did not conclude until 7 October 2009.
In proof of the charge the prosecution called oral evidence and tendered a number of certificates invoking evidentiary aids provided in the relevant legislation.
The prosecution relied on s 175(1) Road Traffic Act 1961 (RTA) to prove the allegations in the complaint that the appellant was the driver of the car and that the location was a road. It proved that the speed limit was 60 kilometres per hour by means of regulation 51(1)(a) Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999 as well as by the allegation in the complaint: s 80 RTA.
Proof that the speed limit was exceeded was provided by certificates, exhibit P3, tendered pursuant to s 79B(10)(b) and (c) RTA and exhibit P5, pursuant to s 175(3)(ba) RTA.
Exhibit P3 proved (in the absence of proof to the contrary) that the identified traffic speed analyser was a photographic detection device within the meaning of the RTA and was an approved device, and that it was set, tested and operated as required. Exhibit P5 proved (in the absence of proof to the contrary) that the specified device was tested six days before the offence, by comparison with the speedometer in another specified vehicle, and showed a speed of 54 kilometres per hour, against the same reading…

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 Van Reesema v Police

Details

AGLC: Van Reesema v Police [2010] SASC 201
Case: [2010] SASC 201
Decision Date: 30 June 2010

CaseChat Overview and Summary

Van Reesema appealed against his conviction for a speeding offence, arguing that the magistrate made errors in finding the case proved. The case was heard by the Supreme Court of South Australia. The appellant contended that there was insufficient evidence to support the conviction and that the magistrate failed to properly apply the relevant statutory provisions regarding prima facie evidence.

The court was required to determine whether the magistrate correctly applied the law and whether the evidence was sufficient to support the conviction. The appellant argued that the prosecution did not meet the burden of proof as outlined in the relevant statutes, particularly regarding the presumption of speed based on the speed camera evidence. The appellant also contested the weight and sufficiency of the evidence presented.

The court found that the magistrate properly applied the relevant legal principles and correctly assessed the evidence. The court held that the evidence provided by the speed camera was sufficient to meet the statutory presumption, and the appellant did not provide any credible counter-evidence to rebut this presumption. The court further found that the appellant’s arguments regarding the weight and sufficiency of the evidence did not undermine the magistrate’s decision. Consequently, the appeal was dismissed.

The court upheld the conviction and confirmed the original penalty imposed on the appellant. The appeal was dismissed with costs.

Orders