Allen v Broome [2003] TASSC 38

Evidence - Burden of proof, presumptions, and weight and sufficiency of evidence - Presumptions - As to scientific instruments - Accuracy of speedometer.

Avins v Garvey [2001] WASCA 415, Re Appeal of White (1987) 9 NSWLR 427, followed.

Evidence - General - Judicial notice - Matters not requiring proof - Locality and boundaries - Matters of common knowledge.

Avins v Garvey [2001] WASCA 415, followed

Judgment Number: [2003] TASSC 38

1 This is an appeal against the dismissal of a complaint alleging that the respondent rode his motor cycle at a speed in excess of the speed limit in a built-up area on Penguin Road, Ulverstone in breach of the Traffic (Road Rules) Regulations 1999 ("the Regulations"), regs20 and 25 .

2 The hearing of the complaint proceeded on the unstated assumption that the speed limit in the relevant section of Penguin Road was 60 kilometres per hour; I will return to this assumption. The evidence called by the complainant included evidence: that as the respondent rode a motor cycle along Penguin Road, he was followed, at a constant distance for about 300 metres, by a police vehicle on mobile patrol; that during this period the police officer who drove that vehicle observed that the speedometer of the police vehicle read between 75 kilometres per hour and 80 kilometres per hour; and that during this period the police officer who was a passenger in that vehicle observed that the motor cycle's speed was "clocked" at about 75 kilometres per hour. Both police officers also gave generalised evidence as to the accuracy of the speedometer in the police vehicle, but no specific evidence of a recent test of its accuracy was given.

3 Upon the close of the complainant's case, the learned magistrate in summary said that: the respondent being unrepresented, he, the learned magistrate, was obliged to consider certain aspects of the evidence; there was no direct evidence of a recent check of the speedometer of the police vehicle with a properly calibrated speed analysis device; there needed to be that sort of evidence to sustain a case to answer; and in the circumstances there was no case for the respondent to answer. The learned magistrate dismissed the complaint.

4 The issue for the learned magistrate to determine, he having decided to consider whether the respondent had a case to answer, was whether on the evidence before the Court the respondent could lawfully be convicted. The learned magistrate had uncontradicted evidence before him that on the basis of the speedometer in the police vehicle, the speed of the respondent's motor cycle had been about 75 kilometres per hour. The learned magistrate's statement to the effect that in order for this evidence to sustain a conviction there must be evidence of the accuracy of the speedometer having been checked is wrong; the contrary is the case. There is a common law presumption as to the accuracy of readings of scientific or technical instruments of a character which, by general experience, are known to be trustworthy. For a considerable time in a number of jurisdictions it has been accepted that a speedometer is such an instrument and that evidence of a speedometer reading is prima facie evidence of that fact without the need for evidence that the accuracy of the speedometer has been tested; see Avins v Garvey [2001] WASCA 415, Perron v Seiler [2000] WASCA 145; (2000) 31 MVR 190, Police v Tsavlidis [2000] SASC 6, Re Appeal of White (1987) 9 NSWLR 427, Redman v Klun (1979) 20 SASR 343, Porter v Kolodzeij [1962] VicRp 11; [1962] VR 75, Thompson v Kovacs [1959] VicRp 40; [1959] VR 229, Nicholas v Penny [1950] 2 KB 466, Crawley v Laidlaw [1930] VicLawRp 56; [1930] VLR 370 and Peterson v Homes [1927] SASR 419.

5 The operation of this evidentiary presumption is not affected by: the provisions of the Evidence Act 2001, it being consistent with the same, see that Act, s9(2)(b); or, the provisions of the Traffic Act 1925, see that Act, s56. In the light of the presumption and in the absence of any evidence to the contrary, it was incumbent upon the learned magistrate to accept the evidence of the speed recorded on the speedometer in the police vehicle. Whilst counsel for the respondent acknowledges the presumption, he submits that the evidence as to observations of the speedometer in the police vehicle should not have been accepted in this case because the evidence was challenged by the respondent and there is no evidence that it subscribes to the National Measurement Act 1960 (Cth), which states:

"When, for any legal purpose, it is necessary to ascertain whether a measurement of a physical quantity for which there are Australian legal units of measurement has been made or is being made in terms of those units, that fact shall be ascertained by means of, by reference to, by comparison with or by derivation from:"

(and thereafter the section lists a number of appropriate and described standards)

As to the effect of that section, I agree with what was said in Re Appeal of White (supra) by Shadbolt DCJ at 430, where he expressed the view that:

"... the section only operates when it becomes necessary to ascertain whether or not a measurement of a physical quantity has been made in terms of those units, namely the Australian legal unit of measurement. Then and then only need it be ascertained by reference to comparison with or derivation from the appropriate standard.

It does not preclude the acceptance by the Court of evidence of the reading of the speedometer unless and until that reading is challenged by virtue of a challenge to the accuracy of the instrument in regard to its capacity to measure in accordance with the Australian measures."

(See also Jenkins v WMC Resources Ltd [1999] WASCA 171; (1999) 21 WAR 393.)

6 In my view, the intent of the section is to provide a means of ascertaining whether a measurement for which there is an Australian legal unit of measurement has been made in accordance with that unit. It may also assist where results derived from similar measuring devices differ, in which case resort may be had to the section in order to determine which of the devices provides the measurement which accords most accurately with the applicable Australian unit of measurement. The section does not purport to have any impact on the admissibility of evidence of measurements and does not do so; it is of no consequence to this case.

7 It is clear that the learned magistrate erred in finding that by reason of the absence of evidence of the accuracy of the speedometer in the police vehicle, the respondent had no case to answer; this, however, does not dispose of the appeal. Counsel for the respondent submits that the learned magistrate should, in any event, have dismissed the complaint as the prosecution had not established that the applicable speed limit was 60 kilometres per hour. For the speed limit to have been 60 kilometres per hour, the incident needed to occur in a "built-up area" as to which the Regulations, Sch 5, provides:

"'built-up area', in relation to a length of road, means an area in which there are buildings on land next to the road, or there is street lighting, at intervals not over 100 metres for a distance of at least 500 metres or, if the road is shorter than 500 metres, for the whole road."

8 The evidence before the learned magistrate was that the incident occurred in a section of Penguin Road within the town of Ulverstone between Clara Street and Undara Crescent. There was no evidence as to the presence of or distribution of buildings on land next to the road or street lighting on the road. The learned magistrate did not expressly advert to whether or not the section of road was a built-up area; this is perhaps not surprising as the respondent did not suggest that the speed limit was other than 60 kilometres per hour, and it is implicit, from the evidence of the respondent's response to the police officer who stopped the respondent, that the respondent accepted that 60 kilometres per hour was the speed limit. Whilst it might be inferred that the learned magistrate took judicial notice that the road was in a built-up area, in the absence of any comment from him about this issue, I am unable to conclude that he did so, or that he would have done so, had he adverted to it. I am not familiar with the road.

9 The rule that local courts are entitled, or even obliged, to have regard to local conditions is an exception to the theory behind judicial notice that judges have a corporate mind which is informed by the experience of each judge; Cross on Evidence, 5 ed, 3065 and Kent v Cattini [1961] WAR 74 at 76. In Avins v Garvey (supra), it was held that this rule required a magistrate to take judicial notice that a particular road in the City of Perth, Western Australia, was a built-up area. Whilst the rule entitles a local court to take judicial notice of general topographical features, it does not entitle the court to take judicial notice of the precise distance between two points on a particular road, Pope v Ewendt (1977) 17 SASR 45. Counsel for the respondent relies on this limitation to the rule to distinguish the decision in Avins v Garvey (supra) from the circumstances of this case as the definition given to the term "a built-up area" in the legislation which is the subject of that decision differs from the definition of that term in the Regulations. The latter definition includes a reference to specific intervals and distances. I am not satisfied that the inclusion in the definition of references to intervals and distances warrants the conclusion that the learned magistrate could not have taken judicial notice that the relevant section of Penguin Road was a built-up area. It may be notorious to those in the locality, and the learned magistrate, that along that road there are buildings, or there is street lighting, at regular intervals of substantially less than 100 metres. As I am unable to say that such a conclusion was not open to the learned magistrate, I am unable to find that in any event the complaint should have been dismissed.

10 The appeal is allowed. The dismissal of the complaint is set aside and I order that it be remitted for retrial by another magistrate.