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 given by the specified vehicle. The accuracy of that specified vehicle was proved by exhibit P4, tendered in accordance with s 175(3)(b) RTA. The date, time, location of the offence and registered number of the vehicle driven by the appellant was proved by the photograph, exhibit P10, tendered pursuant to s 79B(10)(a).
The magistrate concluded that the appellant had provided no proof contrary to the certificates. He found Mr van Reesema guilty as charged and imposed a fine of $100 and ordered that he pay the costs of the prosecution and the relevant victims of crime levy.
In his notice of appeal, the appellant enumerated 16 grounds suggesting that the magistrate was in error. He then purported to amend those grounds in his outline of argument filed on the day before the appeal. At his request I have proceeded to deal with the grounds as detailed in his most recent outline. I shall address each of those grounds in turn.
Ground 1
The Defendant/Appellant is innocent of the charge as it cannot be independently determined whether the speed detection device has been tested for accuracy as required by the Road Traffic Act 1961 section 175(ba), and hence whether the accusation of exceeding the speed limit is lawful.
The appellant argued that the speed analyser was not tested for accuracy as required by s 175(3)(ba) of the RTA. The appellant made reference to the certificates tendered by the police at trial and in particular exhibit P13, a certificate showing the accuracy of the calibration test undertaken on the speed analyser. The appellant argued that P13 either did not relate to, or was ineffective in proving, the accuracy of the analyser. The appellant argued that the certificate should have contained more detail. The respondent’s submission was that the magistrate relied rather upon exhibit P5, being the certificate of accuracy of the speed analyser, and that P13 was tendered as supporting evidence, but was not essential to proof of the charge.
The accuracy of the speed analyser was proved by the certificate, exhibit P5, which proved, in the absence of proof to the contrary, that the speed analyser had been tested and shown to be accurate within the specified limits. The certificate, exhibit P13, did not amount to proof to the contrary. Rather, it supported the assertions within P5. A comparison of the certificate P5 with s 175(3)(ba) which allows for its tender and gives it its evidentiary weight, does not support the argument that P5 is in any way deficient.
The magistrate was obliged to accept the accuracy of the analyser in the state of the evidence. This ground fails.
Ground 2
The Defendant/Appellant is innocent of the charge as the alleged speed of the subject vehicle is within the combined limits of error of the subject vehicle’s speedometer and the subject automated photographic detection device’s speed analyser and recorder.
The appellant argued that the speed he was travelling was within the combined margin of error of the speedometer in his car and that of the speed detection device. He asserted that, by law, vehicle speedometers were required to be accurate only within 10 per cent of the speed travelled. He then argued that a traffic detection device could also misread speeds, since there was a tolerance of 10 per cent in terms of accuracy of a speed detection device. Accordingly, he put that his true speed could have been ‘misread’ by 20 per cent. If he was driving at 55 to 60 kilometres per hour as he claimed then the combined errors could have been as much as 12 kilometres per hour.
The flaw in this argument is that the reading on the appellant’s speedometer has nothing to do with the issue of whether or not he was committing an offence. Proof of the prosecution case did not involve any assumption as to the accuracy of the speedometer in the car driven by the appellant. This ground fails.
Ground 3
The defendant has been denied natural justice because SAPOL Testing Officer(s) carried out testing of the device without documenting test procedures, without testing the device in the field, or providing any adequate documentation of the test results. This prevented the defendant from being able to have an independent review of test procedures and challenge the accuracy of a recorded result. This right has been confirmed by Justice Smith in Gaffee v Johnson (1996) 90 A Crim R 157 and Justice Balmford in Kaschke v Hornsby (1998).
The appellant claimed that he had been denied natural justice because the police had failed to sufficiently document the test procedures relevant to the speed detection device and that they failed to respond to numerous subpoenae. The appellant argued that there was no documentation of tests that had been carried out, or that such tests were never conducted.
The remarks of the magistrate detailed the fact that the appellant and his ‘expert’ witness had the opportunity to inspect various manuals and operating instructions at the Crown Solicitor’s Office. Documents referring to the testing were in evidence. The documents relied on by the prosecution in proving its case were made available to the appellant. There is no substance in this ground of appeal.
Ground 4
Magistrate erred in finding said speed detection device had been tested according to regulations.
Ground 4 alleges that the magistrate erred in finding that the speed detection device had been tested in accordance with the regulations. The appellant argued that the tests were not done to an acceptable standard since they were based on only one test drive. At least ten such tests should have been undertaken to prove the accuracy of the device. In his outline of argument the appellant suggested that the exhibits P4, P5 and P13 did not display a recording of sufficient ‘extent’ because it was not possible to determine accuracy based on a single measurement. In addition, he submitted that the certificates were defective in failing to specify the range within which they were accurate.
The appellant also argued that exhibits P4 and P5 were not original documents since they were dated 8 February 2008 and the offence occurred on 27 March 2004. He argued that providing new certificates instead of the originals was not “kosher”.
There is no requirement under the legislation or regulations for the police to perform more than one ‘drive through’ test. Again, the certificate P5 is, by force of s 175(3)(ba) proof of accuracy of the speed analyser, in the absence of proof to the contrary. The appellant’s arguments are not such proof. In regard to the dates listed on exhibits P4 and P5, there is no requirement that the certificates be unique, or that they bear a date proximate to the offence. They should be dated when they are signed.
Ground 4 is without merit.
Ground 5
The Magistrate erred in accepting the testimony of the SAPOL officers that exhibits P4 + P5 + P11 + P12, were all that was required by the regulations.
The appellant alleged on ground 5 that the magistrate erred in accepting the evidence of the police officers as to the accuracy of exhibits P4, P5, P11 and P12. The appellant suggested that there were numerous things wrong with the documents and as such they could not prove the case against him. He argued that there was no reference to the word ‘extent’ on exhibit P11 in accordance with the National Measurement Institute, or the National Measurement Act 1960 (Cth) and that this certificate was also contradictory and therefore did not “come up to scratch”.
In my view the appellant’s argument on this ground must also fail. On my reading of the provisions the prosecution case was proved by means of the contents of the complaint, together with P3 and P5, absent proof to the contrary. Exhibit P11 was otiose. The magistrate did not have to accept the testimony of the police officers, since the legislation provided that the certificates were proof in the absence of any proof to the contrary. The legislation effectively places the onus on the appellant to prove that the certificates were defective or irrelevant. References to the National Measurement Institute or the National Measurement Act really do not advance the appellant’s argument.
Ground 6
The refusal to make orders on 27/05/08.
The appellant complains of the orders made by the magistrate on 27 May 2008 refusing to order further disclosure. The appellant claimed that the magistrate refused to read affidavits he filed and, in particular, an affidavit setting out why he was seeking further documents and an adjournment to gain expert advice on those documents. The appellant claimed that he made disclosure requests by way of affidavit because of problems with his concentration and memory. He claimed that his trial was compromised by the refusal of the magistrate to order further documents for his inspection.
It has already been noted that the appellant had opportunity to attend the Crown Solicitor’s Office and view all relevant documents.
I am not persuaded that there was any error, let alone miscarriage of justice, on this account.
Ground 7
That Mr. K.P. Edgecomb SM continued to preside over hearings when disqualified.
The appellant argued that the magistrate should not have continued to hear the matter once he had apparently disqualified himself on 3 September 2007. The appellant stated that prior to the hearing of 3 September he had written to the magistrate to inform him of the background of his matter. The appellant claimed that he did not wish to influence the magistrate, but rather to put the facts before him. Later, he became aware that the certificate of record relating to this hearing noted that the magistrate had disqualified himself from hearing the trial. The appellant acknowledged that there was no mention of disqualification at the hearing.
The respondent pointed to a ruling made by the magistrate and dated 27 May 2008. The magistrate there explained that he had, much earlier, disqualified himself out of an abundance of caution. However, the matter came back for trial before him, because there were no other magistrates available. He considered the matter of disqualification before the trial commenced and decided that in the absence of any application, he would proceed to hear it.
In these circumstances I do not consider the ground has substance.
Ground 8
The hearing dates listed are incomplete.
The appellant alleged that the hearing dates within the Certificate of Record were incomplete and there was no record of the magistrate’s refusal to order further disclosure on 27 May 2008. In these circumstances he argued he was precluded from appealing against the failure to order additional disclosure.
Counsel for the respondent pointed to the transcript of 27 May 2008 as providing a record of the magistrate’s refusal to order further disclosure. As seen, far from being precluded from appealing against the refusal to make further disclosure orders, the appellant purports to do so in ground 6. There is no dispute that a point was reached where the magistrate refused to order (or, more correctly, invite) further disclosure. I have already found that this refusal did not involve error.
Ground 9
Presumption as to the required expertise of a witness.
Ground 9 disputed the ruling the magistrate made as to the lack of relevant expertise of the appellant’s witness. The appellant called Mr Gradimir Zivkovic to give evidence to establish what form the certificates tendered by the prosecution should take and the pre-requisites for validity of such certificates. He wished to examine Mr Zivkovic to show him the prosecution exhibits and have him point out how each certificate should have been framed.
In evidence the magistrate asked Mr Zivkovic what experience he had with the speed camera equipment used by police and the ways in which such equipment needed to be calibrated. Mr Zivkovic told the magistrate that he had no experience with either the equipment or calibrating it and that his familiarity with the equipment was based only on his understanding of the manuals.
The magistrate ruled that Mr Zivkovic was not qualified to give expert evidence on the accuracy of the speed camera.
In my view the ruling was sound. The evidence before the magistrate admitted of no other finding on the witness’s expertise. The evidence was therefore inadmissible.
Ground 10
Failure to determine a definition of the terms “testing”, “accuracy” and “extent of accuracy”.
The appellant argued that in interpreting the certificates the magistrate should have had regard to the words “testing”, “accuracy” and “extent of accuracy” used within them. The magistrate should have apprised himself of the meanings of these words on the basis of “industry standards”. The appellant stated that he filed documents giving the relevant meanings, but that the magistrate refused to read them.
These words are not defined within the RTA. Where legislation does not define a certain term the court has regard to the usual meaning, rather than to “industry standards”. The magistrate was not required to receive the proffered materials. This ground of appeal therefore fails.
Ground 11
South Australian Police are subject to the Wednesbury principles.
Under this ground the appellant argued that the police were subject to the Wednesbury principles as established in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and as such they had a duty to act reasonably in gathering evidence. The appellant argued that the police were unreasonable in that they did not conduct relevant tests of the device used and apprise themselves of the necessary processes and were unreasonable in signing the certificates.
I do not consider it appropriate to attempt to go behind the certificates tendered. The obligations upon police officers are not raised by this appeal.
Ground 12
The magistrate accepted the exhibits P-12 and P-13 as compliant with the Road Traffic Act.
The appellant argued that documents tendered as P12 and P13 are not contemplated by the RTA and the magistrate should therefore have not accepted them as evidence.
Exhibits P12 and P13 were tendered in response to the appellant’s attack on police evidence. They are not documents contemplated by the provisions of the RTA. Exhibit P12 was a document generated by the CSIRO, called a “Measurement Report”, dealing with testing of the accuracy of the equipment used to test the photographic detection device. It added nothing. Exhibit P13 is an internal police document dealing with the accuracy of the same device. Exhibit P13 was, essentially, for internal police use. It was tendered as a business record but, in my view, again added nothing to the case. Both documents would be relevant to the issue of the certificates P3 and P5 by police, rather than to the magistrate’s task. The magistrate was entitled to receive documents such as these under s 45A and s 45B of the Evidence Act 1929 (SA) irrespective of whether the documents were referred to in the RTA.
Ground 13
The magistrate considered the evidence of the defendant was unclear as to the speed.
Ground 13 disputes the magistrate’s ruling that the appellant was unclear in his evidence as to the speed he was travelling at the time of the offence. The appellant argued that he said clearly at trial that he was travelling at 55-57 kilometres per hour. He also acknowledged that he had said in evidence that he was not absolutely certain about his exact speed. It would be surprising if he were, as he was not aware of his detection for the offence until more than six weeks later. I note that even at the appeal hearing the appellant said:
I recall that I was doing under 60 – the grading between 60 and 70 and 80 [on the speedometer] is not very clear.
The magistrate said in his reasons that there was “nothing remotely firm or reliable in what Mr van Reesema said”. That finding was clearly open to him. There is no force in this complaint.
Ground 14
The magistrate found that there was no other evidence contrary to the accuracy of the speed camera.
The appellant disputed the magistrate’s ruling that there was no evidence contrary to the prosecution’s case. The appellant repeated his arguments about the required form of a certificate and argued that he had determined, with the help of a qualified engineer, that there was an error of about 16 kilometres per hour in the analysis by the speed analyser.
In his ruling on 7 October 2009 the magistrate stated that he had “no hesitation nor reservation in receiving” the prosecution exhibits and that he did not doubt “the accuracy or the reliability of the equipment”. The magistrate therefore concluded that there was “no other evidence contrary to the accuracy of the camera”.

There was nothing presented by way of argument on appeal that made me doubt the correctness of the magistrate’s findings on this issue.
Ground 15
The defendant has been denied natural justice because South Australian Police have carried out testing of the device without documenting test procedures.
The appellant here argued that he had been denied natural justice in that the police provided certificates without providing the evidence on which the certificates were based; that is, documents establishing the validity of the testing procedures.
In my view the police documented the procedures to the extent required by the legislation.
Ground 16
The conduct of the magistrate K Edgecomb evidencing bias.
Ground 16 was an allegation of bias displayed by the magistrate in overlooking missing documents, including a particular manual, together with the appellant’s general observations of the attitude and conduct of the magistrate. The appellant stated that he had viewed a particular edition of a relevant manual at the Crown Solicitor’s Office prior to the trial commencing and had noted a section which interested him. He then put that at trial this manual had been replaced with a later version that did not include the relevant passage. There is no evidence beyond the appellant’s to support this. The magistrate was not obliged to accept Mr van Reesema’s evidence.
Mr van Reesema further claimed the magistrate had displayed bias in determining his guilt before the trial had commenced.
My reading of the transcript of the trial provides no evidence of bias on the part of the magistrate. On the contrary, it appears to me the magistrate conducted the trial with patience, courtesy and objectivity.
In my view none of the grounds is made out. The appeal will be dismissed. The orders are as follows:
1.Notice of Appeal amended to replace all grounds with those within document filed 9 June 2010 and headed “Appellant’s Summary of Argument By Way of Affidavit”;
2.appeal dismissed;
3.the appellant is to pay the respondent’s costs of the appeal, fixed in the sum of $250.