POLICE v TSAVLIDIS No. SCGRG-99-1501 [2000] SASC 6

3 The three counts alleged, respectively, driving at a speed dangerous to the public (Road Traffic Act 1961 s 46), driving at a speed greater than 60 kilometres an hour, namely, 115 kilometres an hour (Road Traffic Act 1961 s 49), and being the holder of a driver's licence and failing to have given written notice to the Registrar of a change of address (Motor Vehicles Act 1959, s 136).

4 After hearing the evidence led by the complainant, the learned trial Magistrate accepted a submission of no case to answer as to the first two counts, which he proceeded to dismiss. He entered a conviction on the third count, as to which there is no appeal.

5 On the day in question, the respondent was timed while driving a Commodore sedan on Victoria Road. Evidence was given by Chief Inspector Barry Lewis of the Elizabeth local service area of the Police Force that, at that time, he was driving an unmarked police car when the vehicle driven by the respondent came to his attention.

6 The respondent's vehicle was approaching from the rear of his vehicle and he caught sight of it in his rear vision mirror. It appeared to be travelling in the right hand lane at a very fast rate of speed. He described it as having "flashed" past him, and he thereupon accelerated to a speed of about 120 kilometres per hour. He intended to pursue the vehicle, overtake it and stop the driver. However, he found that even by maintaining a speed of 120 kilometres per hour, which he did after positioning his vehicle at about 100 metres behind the respondent's vehicle, he was not able to overtake it, but continued to monitor its speed at that level over a considerable distance.

7 Eventually, he decided to pull out and not to chase the vehicle any further, as he felt that it was too dangerous to do so. He dropped back his speed but continued to observe the respondent's vehicle. The passage of that vehicle was eventually arrested by a congestion of traffic ahead of her, as a result of which Inspector Lewis decided to renew the chase. He then overtook her, and signalled to the driver to stop, whereupon she stopped and was questioned.

8 When he alleged to her that she had been travelling at a speed of at least 115 kilometres per hour (he allowed a margin of 5 kilometres per hour on the speed at which she had been timed) in an area where the speed limit was 60 kilometres per hour, her answer was "Really? I didn't know, I thought I was only doing a bit over 60". When he asked "Do you realise the difference between 60 and 115?" she said "I really didn't realise".

9 There were two passengers in the vehicle, another woman and a small child in the back seat.

10 Inspector Lewis calculated that from the time he first observed the respondent's vehicle to the point at which he was able to stop her passage and speak to her was a total distance of 3.1 kilometres. During the course of the chase both vehicles passed a number of side streets.

11 Inspector Lewis gave evidence that he had had some considerable experience in traffic matters. He said that he had "reported or arrested drivers for driving at a speed over 100 kilometres per hour or above at least 100 to 150 times" and that he reported "approximately 10 to 12 people a year for speeding or speed zone or other traffic matters".

12 The prosecution did not attempt to invoke the procedures under s 175(3)(b) of the Road Traffic Act and offer evidence in the form of a certificate as to the accuracy of the speedometer of the vehicle driven by Inspector Lewis. The reason why the prosecution did not do so became apparent during the course of evidence, in that the vehicle driven by Mr Lewis was not tested in accordance with the requirements of that sub-section, as it then stood, within a 14 day period on either side of the date in question. In fact, it was only four days after the 14 day period had expired that it was tested, namely, on 20 February 1998.

13 No doubt in an endeavour to remedy the situation brought about by reason of the omission to test the accuracy of the speedometer within the 14 day period, the prosecution led evidence of three tests, the first conducted on 4 March 1997.

14 Evidence was led from a witness who was the service manager of the RAA at its Mile End depot, that on that date he tested the vehicle using a test unit for speedo testing. The test indicated that at 30 kilometres per hour the speedo of the vehicle registered 30 kilometres; at 49 it registered 50; at 77 it registered 80; and at 96 it registered 100 kilometres per hour. The witness gave evidence that the test unit was itself tested once a year, and that the RAA is provided with a certification of the accuracy of the unit. However, the certificate was not in fact produced by the witness.

15 As to the test which was performed on 20 February 1998, another employee of the RAA was called who deposed to the fact that a similar test had been conducted on that day at the Mile End centre of the RAA. The result was that at 20 kilometres per hour the speedo registered 20; at 40 it registered 39; and at 60 it registered 58.

16 The third test of which evidence was adduced was performed on 8 May 1998, again at the Mile End centre of the RAA. On that day the result was that at 60 the speedo read 59, and at 100 it read 98.

17 Against the background of that evidence, the learned trial Magistrate observed in giving an extempore ruling on the submission of no case to answer that:

"Commonsense dictates that the defendant was speeding on the date in question in that she must have exceeded 60 kilometres per hour. The police have charged her, however, with driving at a speed dangerous to the public and driving at a speed of about 115 kilometres per hour. Clearly the issue here is the speed."

18 He went on to say that there was "... simply no evidence at all upon which a tribunal of fact could rely to prove the elements of either offence", that is, driving at a speed in excess of 60 kilometres per hour, or driving at a speed dangerous to the public.

19 He then referred to the evidence which had been given by Chief Inspector Lewis and the evidence of the RAA tests. He commented that there was no evidence of any testing of the accuracy of the machine used by the RAA (in fact he had refused an application by the prosecutor for leave to call a witness responsible for checking the accuracy of the RAA testing machine) and in those circumstances, he was simply not able to rely upon the accuracy of the speedometer of the police vehicle.

20 As to the count of speeding, as to which he found no case to answer, he held that:

"An allegation of about 115 kilometres per hour must mean with close proximity to 115, it cannot mean 100 kilometres per hour. Where is the line to be drawn? As a tribunal of fact, I have no evidence before me to establish that the speed was in close proximity to 115 kilometres per hour."

21 As to his dismissal of the second count, the learned trial Magistrate was clearly wrong. The allegation of 115 kilometres per hour by way of particularity of that charge was not an essential particular. The overwhelming evidence was that the respondent was travelling substantially in excess of 60 kilometres per hour, and she should have been convicted of that offence. In circumstances where the evidence does not disclose precisely what speed a defendant was doing, but at the same time, that he or she was travelling at a speed in excess of the speed limit, a conviction should be recorded. The uncertainty as to the precise speed is a matter which may properly be taken into account in imposing penalty.

22 More fundamentally, however, in my view, the Magistrate was clearly wrong in acceding to the submission of no case to answer with respect to the first two counts.

23 In the first place, this was a case in which the learned trial Magistrate might properly have exercised his discretion to require the respondent to elect whether or not she proposed to give evidence, before proceeding to rule on the submission of no case to answer. The submission of no case to answer was based upon an allegation that the weight of the police case, more particularly the evidence adduced in support of it, was simply not sufficient to amount to a prima facie case. In those circumstances, the discretion whether or not to put a defendant to an election is clearly invoked. If I had been in the shoes of the Magistrate, I would have exercised the discretion by putting the respondent to an election.

24 I do not, however, take that aspect of the matter any further. My decision on the appeal will not be influenced by the failure to have regard to the question of an election, as this was not a point taken by either party on the appeal.

25 The notice of appeal complains that the learned Magistrate erred in finding no case to answer in relation to counts 1 and 2. In my opinion, this ground is made out. It seems to me that the learned trial Magistrate took far too technical an approach to the question of the discharge by the prosecution of the onus of proof. He seems to have approached the matter on the footing that if there was no certificate tendered in accordance with s 175(3)(b), there was some sort of onus on the prosecution to verify independently the accuracy of the speedo.

26 That is not the law. Section 175 is no more than an aid to proof which may or may not be invoked by the prosecution if it sees fit to do so. If it chooses not to invoke the section, it may rest its case upon the adequacy of whatever other evidence is adduced which goes towards proof of the charge.

27 Ms Chambers for the respondent argued that once the defendant had put the question of the accuracy of the speedo in issue, as clearly was the case here, there was an onus on the prosecution to call evidence to verify the accuracy of the speedometer. She further submitted that there should be independent evidence of the accuracy of the testing machine. In the absence of such evidence, she submitted that the charge could not be made out and, indeed, the prosecutor could not be held to have proved a prima facie case sufficient to repel a submission that there was no case to answer.

28 Ms Chambers very competently and persuasively expanded on that submission, but at the end of the day, in my opinion, the submission puts the matter too highly.

29 In cases such as this, it is open to the prosecution to rely on the common law presumption in favour of the accuracy of scientific instruments. Ms Chambers conceded that this instrument, namely the speedometer on the car driven by Inspector Lewis, was in the category of scientific instruments. Indeed, she had little choice but to do so, having regard to the decision of the Full Court in Redman v Klun.

30 Here, there was evidence of testing of the speedometer on three separate occasions on the dates to which I have referred, which extended over a period of some 14 months, the closest date being 18 days after the incident in question.

31 Furthermore, it is not correct to say that there was no evidence as to the accuracy of the testing machine used by the RAA. As I have indicated, there was evidence from one of the RAA witnesses that the machine used was regularly tested every 12 months, and from one of the other witnesses that "since the installation of the speedo machine and the testing of it, there have been no complaints in regard to the operation or its accuracy".

32 Even in a criminal case where the required degree of proof is beyond reasonable doubt, the court is entitled to apply a degree of commonsense in evaluation of the evidence. In this case, in my opinion, the outcome of the three tests conducted by the RAA should have been considered in relation to the real evidence of what occurred on the day in question.

33 Clearly, the vehicle driven by the respondent was being driven at a very fast rate of speed having regard to the description by Mr Lewis of its approach, the manner in which he timed it over a considerable distance and the fact that, as an experienced police officer, he broke off the chase because he thought that it was too dangerous.

34 There was a presumption of accuracy as to the reading of the speedo in the police vehicle which was reinforced by the three tests conducted by the RAA, despite the fact that formal proof was not offered of any independent check of the accuracy of the testing machines. In any event, the presumption of accuracy applied to the testing machines as well.

35 It defies commonsense to think that there could have been a situation in which the speedo in the police vehicle and the accuracy of the testing machine by the RAA used on three different dates over a period of 14 months could all have been so wide of the mark that it could not safely be assumed that the respondent was travelling at a speed in excess of 100 kilometres per hour.

36 In my opinion, the case as it stood at the close of the prosecution evidence was sufficient to prove overwhelmingly that the speed was in excess of 100 kilometres per hour. The learned trial Magistrate erred in not having regard to the commonsense of the matter, and in failing to recognise the strength of the case as it then stood. Furthermore, in my opinion, he erred in yielding at that stage to the submission that there was no case to answer.

37 There is a separate appeal as to the award and quantum of costs which the learned trial Magistrate ordered to be made in the light of his ruling. He ordered the prosecution to pay defence costs of $3,600 plus disbursements of $416. It is unnecessary for me to deal with that aspect of the matter in view of the order which I consider to be appropriate in disposing of the appeal.

38 A question has arisen as to whether or not, if I am disposed to allow the appeal, the matter should be remitted to the learned trial Magistrate in question for him to pick up the threads, as it were, from the time at which he delivered his ruling by allowing the respondent to give evidence if she saw fit to do so, and then to complete the hearing. In my opinion, that would not be appropriate as it seems to me that having been critical of the ruling which he gave, it would be in the interests of justice that the matter start afresh before another Magistrate.

39 The appeal is allowed. I order that the dismissal of the complaint be quashed, and that the matter be remitted for re-hearing before another Magistrate as soon as that can be arranged.

PERRY J. I order the appellant to pay the respondent's costs of and incidental to the appeal and the hearing before me, which I fix in the sum sought by the prosecutor, namely $150.

(1979) 20 SASR 343.