WOOLMER v Police - [2020] SASC 184

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WOOLMER v POLICE
[2020] SASC 184
Judgment of The Honourable Justice Parker
2 October 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - EVIDENCE
EVIDENCE - PROOF - FACILITATING PROOF - MATTERS RELATING TO MACHINES, PROCESSES AND OTHER DEVICES
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
This is an appeal against conviction and an application for an extension of time in which to appeal.
The appellant was found guilty of being the owner of a motor vehicle involved in the commission of a prescribed offence contrary to s 79B of the Road Traffic Act 1961 (SA) (the RTA).
At trial, the prosecution tendered a “Certificate of Testing and Operation” relating to the Traffistar device pursuant to s 79B(10)(b) and (c) of the RTA signed by a police inspector which certified, amongst other facts, that the device operated and was tested according to the requirements of the Road Traffic (Miscellaneous) Regulations 2014 (SA) (the Regulations); and did operate as it was designed and set to operate in compliance with the Regulations. The evidence of the inspector was that the results of the induction loop testing of the red light camera linked to the right-hand or turning lane were recorded on a “trim sheet” which she conceded that she was not provided with at the time of, or prior to, signing the Certificate of Testing and Operation.
The Magistrate found the charge proven.
The sole ground of appeal advanced by the appellant is that the Magistrate erred in: (1) finding that there was no proof to the contrary of the facts contained in the Certificate of Testing and Operation; and (2) finding that the testing conducted on 26 February 2018 complied with the Regulations.
Held per Parker J (allowing the appeal):
1. The extension of time in which to appeal is granted.
2. Applying the reasoning of Peek J in Police v Hanton (2018) 131 SASR 226, the appellant has succeeded in proving, on all of the evidence before the Court and on the balance of probabilities, that the relevant photographic detection device had not been tested in accordance with the statutory requirements, contrary to the facts asserted in the Certificate of Testing and Operation signed by the inspector under s 79B(10) of the RTA.
3. The Magistrate erred in his finding that the testing requirements established by reg 32(2)(d) and (g) of the Regulations can be read down with the support of s 22 of the Acts Interpretation Act 1915 (SA).
4. The Bunning v Cross discretion cannot be employed to receive the Certificate of Testing and Operation into evidence as there was no suggestion that the police acted unlawfully or improperly to obtain relevant and probative evidence, rather there was a failure to adhere to the statutory testing process.
5. Without the assistance of the Certificate of Testing and Operation as aid to proof, the photographs of the appellant’s vehicle turning…

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 WOOLMER v Police

Details

AGLC: WOOLMER v Police [2020] SASC 184
Case: [2020] SASC 184
Decision Date: 2 October 2020

CaseChat Overview and Summary

In the matter of Woolmer v Police, the appellant contested a conviction for breaching Rule 60 of the Australian Road Rules, which pertains to entering an intersection while a red traffic arrow was displayed. The conviction was based on photographs taken by a Traffistar SR520 photographic detection device at an intersection. The legal issues before the court revolved around the admissibility and sufficiency of the evidence provided by the photographic device and the certificate issued under section 79B(10) of the Road Traffic Act. Specifically, the court had to determine whether the evidence met the statutory requirements for proof of the offence and whether the statutory presumptions established by the certificate were rebutted.

The court found that while the photographs clearly depicted a red traffic arrow, they did not prove that the arrow was red at the moment the vehicle entered the intersection. The prosecution's case relied heavily on the certificate signed by Inspector Healey, which certified that the Traffistar device was tested and operated in compliance with the regulations. However, the court determined that the appellant had provided evidence that suggested the device had not been tested in accordance with the requirements of the regulations. This included evidence that the device was not tested for all lanes, contrary to the statutory requirements. Consequently, the court held that the totality of the evidence did not establish beyond reasonable doubt that the device was operating correctly, and thus, the statutory presumptions created by the certificate could not stand. The court quashed the conviction and ordered a hearing on costs.

The court's decision underscores the importance of strict compliance with statutory testing requirements for photographic detection devices used in traffic enforcement. The court emphasised that without proper testing and certification, the presumptions created by the statutory certificate cannot be relied upon to establish an offence beyond reasonable doubt. The court's ruling highlights the need for rigorous adherence to regulatory standards to ensure the integrity and admissibility of evidence in traffic law prosecutions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Regulation 32(2)(g) further requires that once in every 28 days while the device is being used to provide evidence of red light offences: (i) a test must be carried out to ensure that the device detects and takes exposures, or makes electronic records, of vehicles passing over the induction loop and accurately indicates the lane in which any such vehicle is travelling; and (ii) the device must be checked to ensure that the device— (A) indicates the correct date, time and code for the location at which exposures or electronic records are taken or made by the device; and (B) is set to operate in accordance with paragraph (d) or (e); and (iii) if a fault is indicated by the test referred to in subparagraph (i), corrective action must be taken and the test must be repeated until no fault is indicated; and (iv) if a fault is indicated by the check referred to in subparagraph (ii), corrective action must be taken until no fault is indicated; The evidence At trial, the prosecution relied upon several documents to prove its case. The documents admitted into evidence were: ·Extract from Register of Motor Vehicles Certificate providing that, at the date of the relevant offence, the appellant was the registered owner of a White Holden Sedan with a specified registration number (P1). ·Two photographs taken by a Traffistar SR520 photographic detection device located at the intersection of Magill Road and Portrush Road (Traffistar device), depicting a white Holden sedan with the specified registration number (the vehicle) at 3:28 pm on 14 March 2018 (P4). The first photograph depicts the vehicle entering the intersection .89 seconds after the right-hand traffic arrow had turned red and the second photograph depicts the vehicle in the intersection 1.89 seconds after the right-hand traffic arrow had turned red. ·Letter Enclosing Photographic Evidence as Requested – enlarged photograph depicting the specified registration number (P6). ·Digital Red Light/Speed Camera Disposition Sheet (D1), signed by Mr Dellow and certifying that the Traffistar device was tested on 26 February 2018, and that the device was tested in compliance with the Regulations and it operated correctly and as programmed. The relevant intersection has two through lanes (lanes 1 and 2) and one right turning lane (lane 3). D1 records the results of the Induction Loop tests on lanes 1 and 2, but not lane 3. ·Certificate of Testing and Operation relating to the Traffistar device pursuant to s 79B(10)(b) and (c) of the RTA (P3). Certificate P3 is signed by Inspector Healey and certifies that: ·The Traffistar device manufactured by Jenoptik Robot GmbH of Germany, that is linked to and used in conjunction with an induction loop vehicle detector, is a photographic detection device as approved under reg 29 of the Regulations for a specified period of 28 days from 1938 hours on 26 February 2018; ·The Traffistar device was operated and tested according to the requirements of the Regulations; and·The Traffistar device did operate as it was designed and set to operate in compliance with the Regulations.

Decision

Reasons for decision

One photograph shows the vehicle at an early stage of the right-hand turn while the second photograph depicts the vehicle with the turn being almost complete. The appellant was charged with a breach of Rule 60 of the Australian Road Rules. To make out that offence it was necessary for the prosecution to prove beyond reasonable doubt that the appellant’s vehicle had entered the intersection when a red traffic arrow was showing. The photographs clearly show a red traffic arrow but they do not give any indication as to whether that red arrow was showing at the instant when the vehicle entered the intersection, i.e. the red arrow may possibly have first appeared a moment after the vehicle entered the intersection. That element of the prosecution case relied upon the evidentiary effect of the certificate signed by Inspector Healey. Without the assistance of that aid to proof, the prosecution could not establish that the light was already red at the instant that the appellant’s vehicle entered the intersection. Thus, without the support of the certificate, the photographs do not establish beyond reasonable doubt that the appellant breached Rule 60.Conclusion I find that the Magistrate should have found that the totality of the evidence established that the relevant photographic detection device had not been tested in accordance with the requirements of the Regulations. Thus, I am satisfied on the balance of probabilities that the appellant has provided proof contrary to the facts asserted in the certificate signed by Inspector Healey under s 79B(10) of the RTA. I uphold the appeal and quash the finding of the Magistrate that the charge against the appellant of breaching Rule 60 of the Australian Road Rules on 14 March 2018 had been proven beyond reasonable doubt. I quash the appellant’s conviction. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

Even if Hanton and Miller were correctly decided, the respondent submits that the appellant did not cross-examine Mr Dellow as to what the “system test” actually established about how the camera was set to operate. Thus, the appellant did not rebut the statutory presumption created by the certificate.Consideration It is necessary to consider the statutory presumptions created by the admission into evidence of a certificate issued under 79B(10) of the RTA. The further issue is whether those statutory presumptions have been rebutted by the appellant. That requires a careful assessment of the evidence relied upon by the appellant at trial. Statutory presumptions Section 79B(10) of the RTA creates several statutory presumptions. These are as follows:1A photograph produced from the relevant photographic detection device denoting the time, date and location at which the exposure was taken, is proof of those facts, in the absence of proof to the contrary.2A certificate certifying that the requirements of the RTA and the Regulations as to the “operation and testing” of the relevant device were complied with in connection with the use of that device during the relevant period is proof of those facts, in the absence of proof to the contrary. 3If the certificate certifies that the relevant 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 acceding to that system and did, in fact, so operate. 4If the certificate certifies that the relevant device is a “photographic detection device”, the certificate is proof of that fact, in the absence of proof to the contrary. The appellant does not suggest that there is any evidence to the contrary that might prove that the particular red light camera is not a “photographic detection device”. Similarly, there is no suggestion by the appellant of any contrary evidence that might establish that the photographs taken by the red light camera do not display the correct time, date and location. Thus, the issues are, first, whether the appellant has proven on the balance of probabilities that, during the relevant period, the device was not set to operate according to a specified system and, secondly, whether he has proven that the requirements of the RTA and the Regulations as to the operation and testing of the device were not complied with. The statutory testing regime It is necessary to examine closely the provisions of reg 32(2) concerning the use and testing of red light cameras. A key issue is the proper construction of reg 32(2)(g) which provides for the regular testing of such devices. That testing regime is plainly intended to ensure that the device is set to operate in accordance with the offence detection provisions in reg 32(2)(d) and must be understood in that light. The chapeau to reg 32(2)(g) requires that while the device is being used to provide evidence of red light offences it must be tested once in every 28 days in accordance with the regime established by the subsequent provisions of reg 32(2)(g). The purpose of the testing regime is stated in reg 32(2)(g)(i) as being to ensure that:·the device detects and takes exposures:·of vehicles passing over the induction loop; and·accurately indicates the lane in which such a vehicle is travelling.As I note below at [109], the evidence of Mr Dellow about the testing he undertook was sufficient to establish that each of the requirements in reg 32(2)(g)(i) was satisfied.