Roads and Maritime Services v Addario

Court of Appeal (NSW)|2012-09-27|Before: Beazley JA, Campbell JA, Hulme J

Judgment 1BEAZLEY JA: On 6 September 2010, Magistrate O'Sullivan in the Local Court of New South Wales dismissed a Court Attendance Notice (CAN) issued against the respondent, in which it was alleged that the respondent had exceeded the speed limit. The allegation was that on 14 December 2009, at 9:16:11 am, the respondent was travelling at more than 40 km ph in a school zone. The speed limit in that zone was 40 km ph until 9:30 am. 2The particulars to the CAN specified that the respondent's motor vehicle had been detected by an approved speed measuring device and recorded by an approved camera recording device within the meaning of the Road Transport (Safety and Traffic Management) Act 1999 (the Act). The respondent contended that he could not have been in the place where his vehicle was photographed at the time alleged in the CAN, as at that time he was in a nearby service station buying petrol and putting air into his tyres. 3The magistrate dismissed the charge. The Roads and Traffic Authority (RTA) (now Roads and Maritime Services (RMS)) appealed to the Supreme Court pursuant to the Crimes (Appeal and Review) Act 2001, s 56, which provides for an appeal to the Supreme Court on a question of law alone. The appeal was heard by R S Hulme J, who dismissed the appeal: [2011] NSWSC 1285. The RMS (the appellant) has sought leave to appeal from that dismissal. The summons for leave and the appeal have been heard concurrently. Leave should be granted, as there is an important question of construction of the legislation, which is applied on a daily basis in the prosecution of speeding offences in the State. The appeal raises the question of the proper construction of s 73A of the Act. Sections 47(5) and (6) are also relevant to the construction of the section.

The evidence at trial 11The evidence adduced by the prosecution consisted of the following documentary evidence: (1) A statement by an RTA officer that contained the following information: (a) an approved speed measuring device, interfaced with an approved digital camera recording device was installed at the location where the respondent was alleged to have committed the offence; and (b) a photograph had been taken of the respondent's vehicle on the approved digital camera recording device. (2) Certificates under the Act, s 46(1) and s 47(5). (Section 47(5) relates to an approved digital camera recording device, which is the type of camera device used in this case.) (3) Three certificates under the Road Transport (General) Act 2005, s 230. (4) Three photographs: (a) one of which clearly showed the respondent's number plate; (b) a photograph that bore the notation: "Speed Limit: 40 km/h Vehicle Speed: 50 km/h Lane: 3 REDFLEX Monday, 14 December 2009 09:16:11"; and (c) a photograph that bore an identical notation as above, except that the time was stated to be 09:16:12. 12The respondent gave evidence in the proceedings. He said that at 9:15 am he was at a Mobil service station some short distance from where the speed camera and measuring device were located. He said that he commenced to pour fuel into his vehicle from the petrol bowser and that at 9:23 am he paid for the petrol and was provided with a receipt. The respondent said that he then put air into his tyres before leaving the service station. He tendered two receipts from the Mobil service station in support of this evidence. The first receipt recorded a credit card transaction at 9:15:28 am on the date of the alleged offence for the purchase of a quantity of fuel for $27.00. The second receipt recorded a cash transaction at 9:23 am on the same date for the same quantity of fuel and the same purchase price at the same Mobil service station. 13The camera recording device was approximately 200 m away from the service station. As one receipt showed a payment for petrol at 9:23 am, it followed, on the respondent's case, that he could not have been on the road at 9:16 am as recorded by the camera recording device.

Proceedings before the magistrate 14Her Honour construed s 47 as applying to the measurement of speed and concluded that the issue in the case was not about the measurement of speed but rather the time of the alleged offence as it was recorded on the photographs. Her Honour held, therefore, that s 73A, which deals with the rebuttal of evidence of matters of specialised knowledge, did not apply. As the appellant bore the onus of proving the offence beyond reasonable doubt and adduced no further evidence after the respondent gave his evidence, her Honour was not satisfied that the offence had been proved. O'Sullivan LCM thus dismissed the charge on the basis that the respondent's oral and documentary evidence was "sufficient to raise a doubt" for the purposes of s 47(6) of the Act.

Appeal to the Supreme Court 15Two principal issues were argued on the appeal to the Supreme Court. First, whether s 73A precluded the evidence of the receipts being admitted into evidence or otherwise relied upon. The appellant's argument focussed upon the meaning of the word "assertion" in the statutory phrase "[a]n assertion that contradicts or challenges" the accuracy of the recording device in s 73A(2). Secondly, whether s 47(6), properly construed, would have precluded the respondent's evidence from having the effect attributed to it by the Local Court, that is, as being evidence sufficient to raise a doubt that at the time of the alleged offence, the camera recording device was accurate, reliable and operating correctly. 16The appellant argued that on its proper construction, the word "assertion" in s 73A meant evidence, or, at least, evidence to the effect of an implied assertion, that contradicted or challenged either the accuracy, reliability or the correct or proper operation of an approved device or the accuracy or reliability of information (including a photograph) derived from such device, being evidence given by a person having the relevant specialised knowledge. As the respondent was not a person with relevant specialised knowledge, it was argued that the evidence comprised in the receipts was not admissible to contradict the accuracy or reliability of the speed camera. 17R S Hulme J rejected both aspects of this construction. In construing the meaning of "assertion" in s 73A(2), R S Hulme J observed, at [19], that the word "evidence" also appeared in s 73A(1) and s 73A(2). His Honour considered that in accordance with basic principles of statutory construction, the legislature did not intend "assertion" and "evidence" to have the same meaning. Rather, the legislature intended that different meanings be given to the different terminology used. As his Honour stated: "... it is not readily to be assumed that Parliament intended to exclude all forms of evidence other than such assertions [of general denial] or from a person with relevant specialised knowledge." 18His Honour considered the consequence of giving to the section the construction for which the appellant contended by reference to the following example. He instanced a case where, notwithstanding that a motor vehicle had been captured on a speed camera, a tow truck driver and police officer gave evidence, corroborated by contemporaneous photographs, that the vehicle had been written off in an accident an hour before the time recorded on the speed camera photograph. His Honour considered that on the appellant's construction, such evidence would be inadmissible because it was not given by a person with relevant specialised knowledge within the meaning of s 73A(2). Whilst the example is compelling, it is a different question as to whether it provides an insight into the proper construction of the provisions under consideration. I will return to this later. 19His Honour concluded, at [20]: "The section is intended to operate in circumstances where a criminal charge has been preferred. An enactment that denies a defendant a right to tender exculpatory evidence is not to be given a wider interpretation than it clearly bears and accordingly I reject the RTA's contentions that 'assertion' means 'evidence' and because the evidence adduced by the [respondent] was not 'adduced from a person who has relevant specialised knowledge ...' it was inadmissible." 20It should be noted at this point that in Roads and Traffic Authority (NSW) v Baldock [2007] NSWCCA 35; 168 A Crim R 566 Spigelman CJ, at [24], expressed the view that the dominant purpose of the Act is one of safety. However, I do not consider that R S Hulme J's statement of the applicable principle of statutory construction was wrong. His Honour clearly had regard to the ordinary meaning of the words of the section: see Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85 at 109-110. 21In an obiter observation, at [25], his Honour considered that a mere statement from the respondent that he had been at the service station at 9:16 am may have fallen within the term "assertion" in s 73A. However, his Honour considered that the respondent's evidence combined with the service station dockets did not fall within the terms of s 73A. As I understand his Honour's reasoning on this point, he considered there was a possible construction of s 73A whereby evidence, that was no more than a statement by or on behalf of a defendant that the defendant was not at the place at the time recorded on the camera recording device, was precluded. However, where as here, there was independent supporting evidence, s 73A was not engaged. 22It is apparent from his Honour's reasons, at [21]-[25], that he had understood the appellant to contend that no evidence, other than from a person with relevant specialised knowledge, was admissible to raise a doubt as to whether the offence had been proved on the requisite criminal standard. The appellant, through counsel on the appeal, informed this Court that the appellant had not made that submission to his Honour. The appellant contended that this misunderstanding (if that be the case) resulted in his Honour not dealing with the issue before him. The relevance of this submission is discussed below. 23His Honour then stated, at [30]: "But whatever be the correct approach in these connections, once the view be taken that s 73A does not prohibit all evidence other than from someone with specialised knowledge, the magistrate was entitled to take into account that adduced on the [respondent's] behalf and, subject to the other issues as to admissibility referred to below, regard that evidence as leading to the existence of a reasonable doubt and dismiss the charge. Furthermore, there is nothing in the group of sections to justify departure from the view in Baldock that evidence from the [respondent] could be given and taken into account in deciding whether the offence alleged was committed, even if it was not to be taken into account in some assessment of the accuracy and reliability of the speed measuring device and camera."

The arguments on the appeal to the Court of Appeal 24In its oral argument in this Court, the appellant contended that the issue on the appeal to the Supreme Court was whether the learned magistrate's decision, that the respondent's evidence was sufficient to raise a doubt within the meaning of s 47(6), was wrong in law. The appellant submitted that it had argued before R S Hulme J that s 73A precluded the use of the respondent's evidence in the way it had been used by the magistrate in the Local Court. The appellant complained that because his Honour found s 73A had no application to the facts of this case, he failed to determine that issue which, it contended, was the only issue that relevantly arose on the appeal. 25The articulation of the issue in this way in turn focussed attention on the grounds of appeal. The appellant acknowledged that as drafted, the grounds of appeal were too wide and it abandoned all grounds save for ground 1(2) of its notice of appeal. Thus, the matter in issue before this Court was whether R S Hulme J erred in not holding that s 73A precluded the respondent's evidence that his vehicle was in the service station at 9:16 am as being sufficient to raise a doubt as to any matter specified in s 47(6). 26It is important in recording these submissions that the appellant's case is properly understood. The appellant does not contend that the respondent's evidence was inadmissible. Rather, it contended that the evidence was not sufficient to challenge the matters referred to in s 47(6) which in turn derive their evidentiary status from the prima facie status of the particulars specified in a s 47(5) certificate. The appellant accepted that the respondent's evidence may otherwise have been admissible and sufficient to give rise to a doubt as to whether the offence occurred. For the same reason, the appellant did not challenge the admissibility of evidence of the type referred to in R S Hulme J's example. It accepted that evidence of that kind was admissible to challenge whether the charge had been proved beyond reasonable doubt, but was not admissible to challenge the matters referred to in s 47(6). 27The appellant submitted that by the tender of the s 47(5) certificate, there was evidence before the court that the camera recording device was accurate, reliable and operating correctly as provided for in s 47(6). There was no evidence before her Honour by a person with specialised knowledge to raise a doubt as to that evidence. Accordingly, had the learned magistrate determined the prosecution by assessing all of the evidence, including the s 47(6) evidence and the respondent's evidence, to determine whether the prosecution had proved the commission of the speeding offence beyond a reasonable doubt, the appellant would have had no complaint. 28However, the magistrate had proceeded on the basis that the respondent's evidence was sufficient to raise a doubt for the purposes of s 47(6), so that it was necessary for the appellant to adduce evidence of the matters specified in that subsection. As the appellant failed to adduce such evidence, the magistrate dismissed the prosecution. The appellant submitted that her Honour erred in doing so, as the respondent's evidence was not of the kind that fell within s 47(6): see s 73A. 29The error in the decision of the magistrate, which the appellant contended was not dealt with by R S Hulme J on appeal, was that it wrongly deprived the appellant of the effect of the certificate given under s 47(5) that the device was presumed to be operating accurately and reliably for the purposes of s 47(6). In short, the submission was that upon the proper construction of s 73A(2)(a), a challenge as to the accuracy or reliability of the camera recording device, or as to whether it was operating properly at the time it was inspected, could only be made by expert evidence, as specified in s 73A(2). It followed on this submission, as the appellant accepted, that his Honour's reasoning, at [30], would have been unassailable, had the matter in issue been other than the proper construction of s 47(6). 30The respondent's principal submission was that s 73A was to be construed in the context of the presumptions provided for in s 46 and s 47, which related to the measurement of speed and not to the recording of time. The respondent submitted that that construction, which he contended was plain on the face of the statutory provisions, was supported by the statement of Spigelman CJ in Roads and Traffic Authority (NSW) v Baldock, at [27], that: "The provision for the admissibility of the evidence is s 47(1). That subsection permits evidence to be given of 'a measurement of speed'. That measurement is identified as having been 'obtained by the use of an approved speed measuring device'. The role and function of the 'approved camera recording device' is only to 'record' the 'speed' so obtained." 31The respondent's argument focussed upon the express terms of s 47 and, in particular subss 47(3)-(5). 32The respondent drew attention to two points in s 47(3). First, he pointed out that s 47(3) does not make any reference to the time at which the photograph was said to have been taken. Rather, the subsection only made reference to the "day" on which and "location" at which the photograph was taken. The respondent contrasted this language with that of s 45, which specifically provides that an approved camera recording device was a device for recording on a photograph, inter alia, "the time and location" at which the photograph was taken. The respondent submitted that it could not be said that the legislature had intended that both date and time were subsumed within the word "day" in s 47(3), given that there was express reference to "time" in s 45. It followed on this construction that "matters" in s 73A should be construed as meaning the matters identified in s 47(3), namely, speed, day and location and not the time at which the image was taken. 33The respondent also pointed out that s 47(4) and s 47(5) each make specific reference to "the time at which ... the photograph was taken". The respondent submitted that the express reference in these sections to "time" supported the proposition that the legislature intentionally omitted the term "time" in s 47(3). It followed that "time" did not constitute a "matter" for the purpose of the presumptions that operated in s 47(3).

Construction of s 73A 34Section 73A relates to the sufficiency of evidence to rebut matters provided for by other sections of the Act. For that reason, the proper construction and application of s 73A is interrelated to and must be cohesive with the operation of those other sections. The question in this case is concerned with the status of evidence adduced in accordance with s 47 and, in particular, the accuracy, reliability and proper operation of the camera recording device that took the photographs of the respondent's vehicle. The provision thus in issue was s 47(6). Section 47(5) is relevant to the extent that s 47(6) is dependant upon the evidentiary status of the matters specified in s 47(5). 35Section 47(5) provides for the prima facie evidentiary status of a certificate certifying the matters specified in the subsection. Upon tender of such a certificate, it is not necessary for the prosecution to adduce evidence of the accuracy or reliability of the camera recording device or that it was operating correctly, unless "evidence sufficient to raise a doubt" as to those matters, at the time of the alleged offence, is adduced. Whether that evidence is sufficient is governed by s 73A. 36Section 73A(2)(a) provides that an "assertion" that contradicts or challenges the accuracy, reliability or proper operation of, relevantly, a camera recording device, is sufficient to rebut such evidence only if it is evidence adduced by a person with relevant specialised knowledge. 37As I have already indicated, R S Hulme J construed the word "assertion" to mean something different from evidence. In doing so, he was concerned to preserve the admissibility of the respondent's evidence. This is apparent from his Honour's remarks at [19]-[20]. However, the admissibility of the respondent's evidence was not, as the argument was put in this Court, in issue. What was in issue was whether that evidence was sufficient to raise a doubt as to the accuracy, reliability or operation of the camera recording device. 38In my opinion, his Honour's construction of s 73A(2)(a) misunderstood the operation of the section. Section 73A(2) is not a provision relating to the admissibility of evidence but rather to the sufficiency of evidence for a specific purpose. In the case of s 73A(2)(a), the specific purpose is to confine the evidence which is sufficient to raise a doubt as to the accuracy or reliability or the correct operation of, in this case, the camera recording device, to evidence by a person with specialised knowledge. Section 73A(2)(a) is thus directed to an assertion that contradicts or challenges the matters specified in s 47(6). However, if the relevant assertion is not made by a person with specialised knowledge, no evidence of those matters is required to be called by the prosecution. 39Contrary to his Honour's construction that "assertion" in s 73A(2) meant something different from "evidence", I am of the opinion that "assertion" in s 73A refers to an assertion, whether by way of statement or opinion, given in evidence in proceedings in a court. A prosecution under the Act proceeds by way of a criminal prosecution before a judicial officer. There is nothing in the provisions of the Act that state that the rules of evidence are not to apply. In my opinion, not only does any such "assertion" have to be given in evidence by a person with specialised knowledge, but also any such "assertion" would have to comply with the ordinary rules as to the admissibility of evidence and be given by a person with specialised knowledge within the terms of the section. Thus, hearsay assertions and opinion evidence, even if given by a person with specialised knowledge, would not be admissible except as provided for by the Evidence Act 1995. 40The effect of this construction is that in a prosecution such as occurred here, as there was no assertion given in evidence by a person with specialised knowledge as to the accuracy, reliability and operation of the devices, the prosecution was not required to call other evidence in respect of those matters. 41However, the prosecution evidence does not thereby constitute conclusive evidence of the commission of the offence. It is evidence that is to be weighed with all the evidence in the case. In this case, the magistrate was required to determine whether the prosecution had proved its case beyond a reasonable doubt, having regard both to the evidence that the camera recording device was accurate, reliable and operating properly at the relevant time, and the respondent's evidence. 42For my part, I consider that this is sufficient to dispose of the issue on the appeal. However, during the course of argument, attention was given to the proper construction of s 73A(2)(b). The respondent's submissions to which I have referred were substantially related to this provision. There is a possible construction of s 73A(2)(b) that would have the effect that evidence of the kind given by the respondent, or that was referred to by R S Hulme J, would not be such as could rebut the prima facie status of the evidence of the time recorded on the photograph. Indeed, the respondent's submissions appeared to be substantially directed to this question. Whilst this argument seemed troubling at the time, I consider that even if that is the reach of s 73A(2)(b), which is likely, it does not make evidence such as that given by the respondent inadmissible. The judicial officer determining the case would still be required to determine if such evidence was credible and sufficient to cast a doubt on whether the prosecution had proved the offence beyond a reasonable doubt.

Conclusion 43It follows from what I have said that I would propose that the appeal be allowed. The appellant sought that the magistrate's order dismissing the charge be set aside. In seeking that order, however, the appellant informed the Court that it did not seek an order that the matter be remitted to the Local Court for redetermination according to law, as its concern was with the systemic issue of the proper application of s 73A, rather than the outcome in this particular case. In this regard, the appellant expressly undertook to the Court that it would not proceed to further prosecute the matter and would take the necessary procedural steps to withdraw the CAN in the Local Court. 44The appellant also agreed that as the case was one of general importance for the prosecution of offences under the Act, it would consent to pay the costs of the respondent in the appeal to the Supreme Court and to an order for costs of this appeal regardless of the outcome. 45Accordingly, the orders I propose are as follows:

Leave to appeal granted upon condition that the appellant discontinue proceedings against the respondent in Local Court proceedings 421/10 filed in the Local Court at Burwood;
Appeal allowed;
Set aside the orders of the Supreme Court made 21 December 2011;
Set aside the order made in the Local Court at Burwood on 6 September 2010 dismissing the prosecution in proceedings 421/10;
Order that the appellant pay the costs of the respondent of the appeal proceedings in the Supreme Court and to further pay the respondent's costs of this appeal. 46CAMPBELL JA: I have had the advantage of reading the judgment of Beazley JA, and agree with her Honour's conclusion and her proposed orders. I wish to make some additional remarks. 47One of the evident purposes of sections that are under consideration in the present litigation is to enable the various certificates referred to in ss 46 and 47 of the Act to provide prima facie evidence of the commission of an offence. Making provision for such certificates to be prima facie evidence saves the Crown from the costly and time-consuming task of calling viva voce evidence of the accuracy and reliability of the recording devices in every prosecution for a traffic offence that is alleged to have been detected by a recording device. The provisions in question should be construed with that purpose in mind. There is no basis in the text of the statute for finding an intention that prosecutions for traffic offences alleged to have been detected by recording devices should be made undefendable. 48The Macquarie Dictionary defines "assertion" as "a positive statement; an unsupported declaration". It is the former of those meanings that best fits the context of s 73A. The most appropriate to the context of s 73A of the meanings given by the Oxford English Dictionary are: "The action of declaring or positively stating; declaration, affirmation, averment" and "A positive statement; a declaration, averment." This is in accordance with the meaning that "assert" has in ss 59-63 Evidence Act 1995 where an "asserted fact" is one that it can reasonably be supposed a person intended to assert by a representation. 49In the Act, an "assertion that contradicts or challenges ... the accuracy or reliability of information (including a photograph) derived from..." (relevantly) an approved digital camera recording device is a statement the gist of whose meaning is that the output of the device is not accurate or reliable together, possibly (indeed, usually, given the requirements for opinion evidence) with reasons why that opinion is held. If any such statement is to be placed before a court, it must necessarily be placed there in the course of evidence. Section 73A(2)(b) has the effect that any statement in evidence whose meaning is of that type can be given only by an appropriate expert. 50However, not every piece of evidence that has the effect of raising a doubt about whether information recorded by a digital camera recording device is accurate is an assertion that contradicts or challenges the accuracy or reliability of the information derived from the device. If a photograph produced by a digital recording device shows that on a particular date a defendant's motor vehicle was travelling at a particular speed at a particular time and place, and the defendant says in evidence, in effect: "I know nothing about cameras or recording devices, but I know that I was overseas on that date", that is not an assertion about the accuracy or reliability of information derived from an approved digital camera recording device. Instead, it is an assertion about where the defendant was on a particular date. In deciding whether to accept such evidence a magistrate would need to take into account that, assuming the appropriate certificates had been tendered, there was prima facie evidence of the accuracy of the device and the particulars it had recorded. In light of that prima facie evidence a magistrate might decide that the unsupported (or slightly supported) say-so of the defendant was not sufficient to give rise to a reasonable doubt about whether the offence had been committed. However, once prima facie evidence of the elements of the offence was proved by the appropriate certificates, whether any other evidence was sufficient to raise a reasonable doubt about whether the offence had been committed would, always, be a matter for the magistrate to assess. 51The facts in the present case illustrate how the content of the certificates that are tendered might themselves bear upon the strength of evidence that a magistrate regarded as sufficient to raise a reasonable doubt about whether the offence had been committed. Section 46 of the Act concerns certificates of the accuracy of approved speed measuring devices. There is some specificity about the manner in which the s 46 certificate must state that the testing has occurred, namely in accordance with the regulations. Section 47(5) is the corresponding provision concerning certificates relating to the accuracy of digital camera recording devices. It requires the certificate to certify, inter alia, that on inspection "the approved digital camera recording device was found to be operating correctly". However there is no regulation or other specification that identifies the manner in which the inspection takes place. The certificate in the present case contained a schedule giving information about the location and type of the camera in question, and the date and time of the inspection. The certificate also stated as "Details": "observed five vehicles pass the device and then observe images of those vehicles recorded by the device". The certificate says nothing about the certifier having made any observations or checks of the accuracy of the date and time recordings made by the device. 52Section 45(1) requires an approved camera recording device to be designed for recording on a photograph: (a) the speed at which the vehicle is travelling (as measured by the approved speed measuring device); ... (b) the date on which the photograph is taken; and (c) the time and location at which the photograph is taken. 53Section 47(3)(c) provides that the photograph is prima facie evidence of the matters shown or recorded on the photograph. As a matter of ordinary construction, that includes all of the s 45(1) matters, including, pursuant to s 45(1)(c), the time at which the photograph is taken. In my view it is a matter of concern that the certificate can provide prima facie evidence of all the matters recorded on a photograph, but the legislation does not require the accuracy of all the details recorded on the photograph to be checked periodically, and certified to be correct. 54TOBIAS AJA: I agree with Beazley JA.

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