Criminal law - Driving offence - Speeding - Evidence of speed reading from laser speed measuring equipment - Whether or not the equipment was apparatus of a type approved by the Minister

Road Traffic Act 1974 (WA), s 98A

1 BLAXELL J: This is an appeal from the decision of a Magistrate in the Magistrates Court at Armadale dismissing a prosecution against the respondent motorist for an offence of exceeding the speed limit. It was alleged that the respondent was speeding at 113 km per hour in a 50 km per hour zone, which speed was recorded by a police officer using a laser speed measuring device known as a 'LTI 20-20 Ultralyte'.

2 However, at the material time, the only type of laser device approved by the Minister as speed measuring equipment was apparatus bearing the name 'LTI 20-20'. The Magistrate was not satisfied that the apparatus used by the police officer fell within the description of the approved apparatus, and there was no other evidence to sustain the allegation of speeding. His Honour accordingly found that the offence was not proven.

3 The appellant has been granted leave to appeal against the dismissal of the prosecution on the following ground:

The learned Magistrate erred in law and in fact by holding that the prosecution had failed to prove that the LTI 20-20 Ultralyte speed measuring equipment was the same type of apparatus as the LTI 20-20 speed measuring equipment approved by the Minister and published in the Gazette of 7 April 1992. The learned Magistrate ought to have held that the evidence of First Class Constable Hands enlivened the operation of section 98A(4) of the Road Traffic Act 1974; that accordingly the accused bore an evidentiary onus of adducing evidence that the LTI 20-20 Ultralyte speed measuring equipment was not the same type of apparatus as the LTI 20-20 speed measuring equipment approved by the Minister and published in the Gazette of 7 April 1992, and that the accused failed to discharge that onus.

4 Section 98A of the Road Traffic Act 1974 (WA) provides as follows:

...

(b) in relation to speed measuring equipment -

(i) a member of the Police Force; or

(ii) a person certified by the Commissioner of Police as being competent to use the equipment;

speed measuring equipment means apparatus of a type approved by the Minister pursuant to subsection (2).

(2) The Minister may, from time to time, by notice published in the Government Gazette, approve of types of apparatus for the purpose of ascertaining the speed at which a vehicle is moving and may, by notice so published, revoke any such approval.

...

(3) In any proceeding for an offence against this or any other Act or the regulations evidence may be given of the use of speed measuring equipment by an authorised person in relation to a vehicle and of the speed at which that vehicle was moving as ascertained by the use of that equipment, and that evidence is prima facie evidence of the speed at which that vehicle was moving at the time of the use of that equipment in relation to that vehicle.

...

(4) In any proceeding such as is mentioned in subsection (3), evidence by an authorised person that apparatus used by him was speed measuring equipment within the meaning of this section is prima facie evidence of that fact.

...

(5) Nothing in this section shall be construed as precluding or restricting the introduction of any competent evidence, whether in addition to, or independent of, any evidence for which provision is made by this section, bearing on the question of whether a person was or was not guilty of an offence against this or any other Act or the regulations.

5 As can be seen, evidence by an authorised person that the speed measuring equipment used by him was apparatus of a type approved by the Minister, is prima facie evidence of that fact. Furthermore, the speed of a vehicle ascertained by use of that equipment is prima facie evidence of the speed at which the vehicle was moving at that time.

6 Once such evidence has been given, the burden passes to the defendant to displace the prima facie effect of the same. This onus is discharged if there is evidence which establishes on the balance of probabilities, that the speed of the vehicle that the defendant was driving, did not exceed the limit at the relevant time (Davis v Armstrong (1993) 17 MVR 190).

7 On 17 April 2008, Constable S R Hands and Sergeant R C Birch were conducting stationary speed detection duties on Williams Road, Armadale. Constable Hands was an 'authorised person' pursuant to s 98A and he was operating a laser speed detection device. At about 6.15 pm, the device recorded the speed of a vehicle being driven by the respondent as being 113 km per hour.

8 According to the transcript, Constable Hands initially testified that the equipment he was using was a 'Trend speed detection device' but he went on to say:

It's a Laser Industries Technology, it's LTI 20-20 and it's a speed measuring device, it's serial number was UX005750.

9 It was also the evidence of Constable Hands that the equipment he was using 'has been gazetted'. He then tendered an extract from the 'Government Gazette' of 7 April 1992 which reads as follows:

ROAD TRAFFIC ACT 1974

ROAD TRAFFIC (SPEED MEASURING EQUIPMENT) NOTICE 1992

Made by the Minister for POLICE UNDER SECTION 98a(2)

Citation

1. This notice may be cited as the Road Traffic (Speed Measuring Equipment) Notice 1992.

1. The radar system bearing the name 'Kustom KR-10 SP' is approved as apparatus for ascertaining the speed at which a vehicle is moving.

1. The speed detection system bearing the name 'LTI20-20' is approved as apparatus for ascertaining the speed at which a vehicle is moving.

10 During cross-examination, Constable Hands agreed that the apparatus he had used was a small black gun-like machine. The serial number was stamped on top of the machine, and on the side there was a little aluminium plate with what appeared to be the manufacturer's brand written on it. The brand written on the plate was 'LTI 20-20 Ultralyte'. It was also Constable Hands' evidence that 'there are different model numbers' for LTI 20-20 apparatus. As well as the LTI 20-20 Ultralyte, there is an LTI 20-20 Ultralyte Compact. This latter device does not have a handle or a trigger but is held in two cupped hands, and is activated by pressing a button.

11 The reasons expressed by the Magistrate in dismissing the charge included the following:

Now, the difficulty I am having in relation to this, but I don't know what the LTI 20-20 device was in 1992, but it does appear that there are at least two different types of apparatus used now, or may be more but there is one type of apparatus whilst it bears the name of LTI 20-20, it also has Ultralyte and Compact and that's a different operation completely as I understand it from the operation of LTI 20-20 Ultralyte.

Now for such a difference in the operation of LTI 20-20 Ultralyte Compact and LTI 20-20 (indistinct), one of the better way of putting it, it may be a different operation and different types of machinery. ...

I am not satisfied the device known as ... LTI 20-20 Ultralyte is an approved apparatus, it seems that it may well be that it is a different apparatus than the LTI 20-20 and I have to say that given the evidence of Constable Hands that there is another device called the LTI 20-20 Ultralyte Compact which has a different operation all together, or at least the operator has to handle it differently, then I am not satisfied that device used by Simon Robert Hands on that day; that is, the LTI 20-20 Ultralyte has in fact been approved by the gazette pursuant to section 98A (indistinct), therefore I find that offence is not proven.

12 For the purposes of the appeal, the parties have agreed on certain additional facts. In this regard, I am told that at the time that the Minister approved a laser speed measuring device in 1992, there was only one model of the LTI 20-20 apparatus. Thereafter, new models were introduced, including the LTI Marksman, the LTI Ultralyte, the LTI Ultralyte LR, and the LTI Ultralyte Compact. These later models did not receive ministerial approval pursuant to s 98A until 2008. By a notice published in the 'Government Gazette' of 6 January 2009, the Minister approved a number of specified models, including the apparatus bearing the name 'LTI 20-20 Ultralyte'.

13 I am not informed as to the extent to which the newer versions of the LTI 20-20 speed measuring devices might vary from the original model. However, it is clear from Constable Hands' evidence that the 'LTI 20-20 Ultralyte Compact' is a significantly different device from the 'LTI 20-20 Ultralyte'.

14 The critical issue that the Magistrate had to determine was whether the 'LTI 20-20 Ultralyte' speed measuring equipment used by Constable Hands was apparatus of the type approved by the Minister in 1992. At one stage of his evidence, Constable Hands testified that the equipment he used was approved by the Minister in the 'Government Gazette' which he produced, and that assertion on its own would have been prima facie evidence of that fact. However, Constable Hands qualified this evidence by describing the equipment he had used as a 'LTI 20-20 Ultralyte', thus raising the issue whether it was in fact apparatus approved by the Minister. The determination of that issue required a consideration of the precise terms of the Minister's approval, as well as Constable Hands' evidence relating to the name on the device.

15 At the time that the Minister approved a speed detection system bearing the name 'LTI 20-20' there was only a single model of that device in existence. Accordingly, and even though the approval under s 98A(2) was of a 'type' of apparatus, there was only one model of the apparatus to which the approval could then in fact apply. Sixteen years were to elapse before a derivative or substitute model was used to measure the speed of the vehicle driven by the respondent.

16 In my view, it is difficult to construe the Minister's approval in 1992 as applying to any future variations or versions of 'LTI 20-20' speed measuring equipment. In that regard, Constable Hands' evidence indicates that 'LTI' signifies 'Laser Industries Technology' (which I understand to be the name of the manufacturer). Although there is no evidence as to the meaning of '20-20', I assume that to be a reference to the common expression '20-20 vision'. It follows that in describing the apparatus that was approved by the name 'LTI 2-20', the Minister was referring not to some form of specific laser technology, but to a piece of equipment with that particular brand name. It is hardly likely that in doing so, the Minister was approving any future form of that manufacturer's equipment simply because it bore that brand name.

17 In any event, the terms of the Minister's approval should be strictly construed, given the impact that approved equipment has on the prosecution of a motorist charged with a speeding offence. The apparatus approved by the Minister is a technological means of establishing a prima facie case of guilt. Because it is a machine and not a person, it cannot be cross-examined as to the accuracy of the speed which it records. Accordingly, justice can only prevail if the machine is strictly compliant with the statutory procedure under which it was lawfully approved.

18 In the present instance the Minister approved a particular speed detection system which bore the name 'LTI 20-20'. He did not approve a speed detection system bearing the name 'LTI 20-20 Ultralyte'. In my view, the Magistrate was correct in coming to the decision that he did and in finding that the offence had not been proved. It follows that the appeal must be dismissed.