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[2011] NSWSC 1285
Supreme Court of NSW
2011-05-25
Hulme J
Original judgment source is linked above.
Judgment 1In these proceedings the Roads and Traffic Authority (hereinafter referred to as "RTA") challenges a decision of Magistrate O'Sullivan to dismiss a charge of exceeding the speed limit, an offence said to have occurred on 14 December 2009. Particulars of the offence alleged were exceeding the speed limit by travelling at 50 kilometres per hour at 9:16:11 am in a school zone on the Hume Highway at Ashfield. 2The evidence adduced by the RTA in the Local Court consisted of a statement by an RTA officer, Ms McKelvey to the effect that an approved speed measuring device and, interfaced with it, an approved digital camera recording device was installed with the relevant approvals at the location where the Defendant was said to have offended and that a photograph of vehicle WWX 394 had been taken by that camera recording device, certificates under s 46(1) and s 47(5) of the Road Transport (Safety and Traffic Management) Act 1999, some further certificates that it is unnecessary to detail, and a certificate under s 230 of the Road Transport (General) Act indicating that the Defendant was the registered operator of the vehicle with plate number WWX 394. 3There were three photographs, at least one of which shows clearly the number plate WWX 394. Two included the following notations:- Speed limited: 40km/h vehicle speed: 50km/h lane: 3 REDFLEX Monday 14 December 2009 09:16:11 4The third bore an identical notation except that the time was stated to be 09:16:12. 5The Defendant gave evidence to the effect that on the relevant morning he was driving to a train station, that some 200 metres from the camera was a service station, that he entered the service station and stopped there for a period. He said that he filled his car with petrol, receiving two dockets, one when he started and one when he paid for the petrol. The dockets were tendered. Both are obviously machine generated and bear the heading "Mobil". One is described on its face as a tax invoice. The purpose of the second is not clear although both contain provision for signature, both bear the date 14/12/09 and refer to a sum of $27. Disregarding seconds, one bears a time notation 09:23 and the other bears a time notation 09:15. 6The Defendant's evidence included the following:- Q. After receiving that docket did you also put some air in the tyres and some water - - A. WITNESS: Yeah I move the car and I go to check the air in my - - GILL (for the informant): Objection... Q. Anyway you did that? A. WITNESS: Yeah. 7The significance of this evidence is that the area where the Defendant was photographed was a school zone where the 40 kilometres an hour limit ceased to apply at 9.30 am. The speed at which he was recorded driving did not constitute an offence after that time. 8A number of objections were made to the admissibility of the evidence adduced on the Defendant's behalf. The primary one was that s 73A of the Road Transport (Safety and Traffic Management) Act precluded it being admitted or relied on. 9Although originally only admitting the dockets provisionally, the magistrate eventually relied on them and said that despite the terms of some of the sections of the relevant Act, there was an onus on the prosecution to prove the commission of the offence beyond reasonable doubt. The prosecution indicated that it did not seek an adjournment and the magistrate went on to dismiss the charge. 10I set out below the relevant provisions of the Road Transport (Safety and Traffic Management) Act 1999. Because the RTA much relied on a decision of the Court of Criminal Appeal in Roads & Traffic Authority of New South Wales v Baldock [2007] NSWCCA 35; (2007) 168 A Crim R 566 where the Court construed an earlier version of some of the principal provisions currently relevant, in the case of those provisions I have set out the 2 versions side by side (also introducing some blank lines to further ease comparison):- 44(1) In this Act an " approved speed measuring device " is a device of a type approved by the Governor... as being designed to measure the speed at which a vehicle is travelling. 45(1) In this Act an " approved camera recording device " is a device of a type approved ... as being designed for attachment to an approved speed measuring device for the purpose of taking photographs of vehicles being driven in excess of speed limits and for recording on any such photograph: (a) the speed at which any such vehicle is travelling (as measured by the approved speed measuring device), and (b) the date on which the photograph is taken, and (c) the time and location at which the photograph is taken, and (d) the speed limit that, in accordance with the regulations, is applicable to the length of road or road related area at which the photograph is taken, and (e) ... Current Version Previous Version 46(1) In proceedings for an offence against this Act in which evidence is given of a measurement of speed obtained by the use of an approved speed measuring device, a certificate purporting to be signed by an appropriate officer certifying that:- 46(1) In proceedings for any offence in which evidence is given of a measurement of speed obtained by the use of an approved speed measuring device, a certificate purporting to be signed by an appropriate officer certifying that: (a) the device is an approved speed measuring device within the meaning of this Act, and (a) the device is an approved speed measuring device within the meaning of this Act, and (b) on a day specified in the certificate (being within the time prescribed by the regulations before the alleged time of the offence) the device was tested in accordance with the regulations and sealed by an appropriate officer, and (b) on a day specified in the certificate (being within the time prescribed by the regulations before the alleged time of the offence) the device was tested in accordance with the regulations and sealed by an appropriate officer, and (c) on that day the device was accurate and operating properly, (c) on that day the device was accurate and operating properly, is admissible and is prima facie evidence of the particulars certified in and by the certificate. is admissible and is evidence (unless evidence to the contrary is adduced) of the particulars certified in and by the certificate 46(2) If any such certificate is tendered in proceedings for an offence, evidence: 46(2) If any such certificate is tendered in proceedings for an offence, evidence (a) of the accuracy or reliability of the approved speed measuring device, or of the accuracy or reliability of the approved speed measuring device is not required in those proceedings (b) as to whether or not the device operated properly or operates properly (generally or at a particular time or date or during a particular period), unless evidence that the device was not accurate or not reliable has been adduced. is not required in those proceedings unless evidence sufficient to raise doubt that, at the time of the alleged offence, the device was accurate, reliable and operating properly is adduced. 47(1) In proceedings for an offence of driving at a speed in excess of a speed limit imposed by or under this Act or the regulations, evidence may be given of a measurement of speed obtained by the use of an approved speed measuring device and recorded by an approved camera recording device. 47(1) In proceedings for an offence of driving at a speed in excess of a speed limit imposed by or under this Act or the regulations, evidence may be given of a measurement of speed obtained by the use of an approved speed measuring device and recorded by an approved camera recording device. 47(2) In proceedings in which such evidence is given:- 47(2) In proceedings in which such evidence is given: (a) the provisions of s 46 relating to the accuracy or reliability of the approved speed measuring device apply, and (a) the provisions of section 46 relating to the accuracy or reliability of the approved speed measuring device apply, and (b) subsections (3)-(7) apply in relation to the approved camera recording device, and (b) subsections (3)-(5) apply in relation to the approved camera recording device, and (c) evidence that a photograph taken by an approved digital camera recording device bears a security indicator of a kind prescribed by the regulations (c) evidence that a photograph taken by an approved digital camera recording device bears a security indicator of a kind prescribed by the regulations is prima facie evidence that the photograph has not been altered since it was taken. is evidence (unless evidence to the contrary is adduced) that the photograph has not been altered since it was taken. 47(3) A photograph tendered in evidence as a photograph taken by an approved camera recording device on a day and at a location specified on the photograph, and as bearing a security indicator of a kind prescribed by the regulations, is admissible and: 47(3) A photograph tendered in evidence as a photograph taken by an approved camera recording device on a specified day at a specified location (a) is to be presumed to have been so taken unless evidence sufficient to raise doubt that it was so taken is adduced, and (a) is to be accepted as having been so taken (unless evidence to the contrary is adduced), and (b) is to be presumed to bear such a security indicator unless evidence that is sufficient to raise doubt that it does so is adduced, and (b) is evidence (unless evidence to the contrary is adduced) of the matters shown or recorded on the photograph. (c) is prima facie evidence of the matters shown or recorded on the photograph. 47(5) When the photograph tendered in evidence is taken by an approved digital camera recording device, a certificate purporting to be signed by an authorised person and certifying the following particulars is also to be tendered in evidence and the certificate is admissible and is prima facie evidence of those particulars:- 47(5) When the photograph tendered in evidence is taken by an approved digital camera recording device, a certificate purporting to be signed by an authorised person and certifying the following particulars is also to be tendered in evidence and is evidence (unless evidence to the contrary is adduced) of those particulars: (a) that the person is an authorised person, (a) that the person is an authorised person (b) that within 30 days (or such other period as may be prescribed by the regulations) before the time and day recorded on the photograph as the time at which and the day on which the photograph was taken, the person carried out the inspection specified in the certificate on the approved digital camera recording device that took the photograph, (b) that within 30 days (or such other period as may be prescribed by the regulations) before the time and day recorded on the photograph as the time at which and the day on which the photograph was taken, the person carried out the inspection specified in the certificate on the approved digital camera recording device that took the photograph, (c) that on that inspection the approved digital camera recording device was found to be operating correctly. (c) that on that inspection the approved digital camera recording device was found to be operating correctly.
11I return to the version of the Act current so far as Mr Addario is concerned, and set out further provisions that had no corresponding provision relevant to Mr Baldock's situation. 47(6) If a certificate under subsection (4) or (5) is tendered in proceedings for an offence, evidence: (a) of the accuracy or reliability of the camera recording device concerned, or (b) as to whether or not the device operated correctly or operates correctly (generally or at a particular time or date or during a particular period), is not required in those proceedings unless evidence sufficient to raise doubt that, at the time of the alleged offence, the device was accurate, reliable and operating correctly is adduced. 73A(1) This section applies to the determination of whether evidence is sufficient to rebut prima facie evidence or a presumption, or to raise doubt about a matter, as referred to in s 46, s 47, s 47B, s 57, s 57B or s 69E and for the purposes of proceedings to which those sections apply. (2) An assertion that contradicts or challenges: (a) the accuracy or reliability, or the correct or proper operation, of an approved device, or (b) the accuracy or reliability of information (including a photograph) derived from such a device, is capable of being sufficient in proceedings to which this section applies, to rebut such evidence or such a presumption, or to raise such doubt, only if it is evidence adduced from a person who has relevant specialised knowledge (based wholly or substantially on the person's training, study or experience). 12The later version reflected amendments made by the Road Transport Legislation Amendment (Evidence) Act 2006 which provisions came into effect on 4 December 2006. The decision in Roads & Traffic Authority of New South Wales v Baldock was delivered on 21 February 2007 13Let me commence my consideration of the legislation by saying that I have had the greatest difficulty in understanding what its meaning and operation is and many of the conclusions I have come to, I hold with no confidence whatsoever. I am obliged to do the best I can but it is not unreasonable to suggest that, with the resources available to it, the legislature should do a better job than it does in informing not just the courts, but also the public, what it means. 14To summarise so far as is relevant for present purposes, providing the appropriate steps are taken and the appropriate certificate tendered, other evidence of the accuracy, reliability and proper operation of an approved speed measuring device is not required "unless evidence sufficient to raise doubt that, at the time of the alleged offence, the device was accurate reliable and operating properly is adduced" - s 46(2). 15Subject to compliance with certain conditions a photograph taken by an approved camera recording device is prima facie evidence of the matters shown or recorded on the photograph - s 47(3)(c). An appropriate certificate is prima facie evidence that within 168 hours, i.e. 7 days, before a photograph was taken, an approved camera recording device was found to be operating correctly - s 47(4) and (5) and, again, other evidence of the accuracy, reliability and correct operation of a camera recording device is not required "unless evidence sufficient to raise doubt that, at the time of the alleged offence, the device was accurate reliable and operating correctly is adduced" - s 47(6). 16The matters shown or recorded on the photograph can be expected to include the speed (as measured by the approved speed measuring device), the date, time and location at which the photograph was taken, and the speed limit applicable. 17It is against that background that the meaning and operation of s 73A falls to be considered. It was the contention of the RTA that "assertion" in s 73(2) should be understood as "evidence" or at least evidence to the effect of an implied assertion that contradicted or challenged the - (a) the accuracy or reliability, or the correct or proper operation, of an approved device, or (b) the accuracy or reliability of information (including a photograph) derived from such a device. 18It was further submitted that the Defendant's evidence was not admissible because it was not from a person having the relevant specialised knowledge. 19I disagree. The term "evidence" is used in both s 73A(1) and (2). Prima facie, as a matter of simple statutory construction, Parliament's use of a different word, "assertion" was intended to reflect a different meaning. Furthermore, while Parliament may have wished to avoid a situation where e.g. a Defendant charged with speeding, or some other person, simply asserted that he wasn't speeding or there at the relevant time - a claim likely to entail substantial cost, effort and delay in meeting, probably months after the occurrence of the suggested offence - it is not readily to be assumed that Parliament intended to exclude all forms of evidence other than such assertions or from a person with relevant specialised knowledge. To take an extreme example, assume compelling evidence was available, e.g. from a tow truck driver and police officer, corroborated by contemporaneous photographs, that an hour before the time recorded on a relevant speed camera photograph, the relevant vehicle had been involved in an accident and virtually written off, on the basis of the RTA's submission, such evidence could not be called because it was not adduced from a person with relevant specialised knowledge and thus irrelevant. 20The 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 Defendant was not "adduced from a person who has relevant specialised knowledge ..." it was inadmissible. 21The argument advanced by the RTA was, in effect that no evidence other than by a person with the relevant specialised knowledge was admissible. In effect, the RTA was contending that if the information on a photograph indicated the commission of an offence, a defendant was conclusively proved to be guilty in the absence of such evidence 22If Parliament had wanted to so abridge the rights of someone charged with a radar detected speeding offence that the only challenge that could be made to a prosecution case was by calling someone with relevant specialised knowledge, and this at a time that in practicable terms would be months after the suggested offence, one would have expected Parliament to say so in far clearer and more concise terms than it has. 23The rejection of those submissions on behalf of the RTA is not the end of the matter for in one sense the evidence adduced on the Defendant's behalf does contain explicit or implicit statements or assertions, as that the term is used in the Evidence Act 1995, representations. These include that the Defendant was at the service station at and about 9.16, that he was there until some time after 9.23 and that he was not on the road at those times. 24One of the meanings given to the term "assertion" in the Oxford English Dictionary (2 ed) is "a positive statement" and thus in one sense the evidence adduced in the Defendant's case could be said to constitute assertions. However, in the context that the term appears it seems to me that it rather bears a meaning more akin to that in the Collins Concise Dictionary, Second Australian Edition, where the terms is defined as "A positive statement, usually without evidence". I do not regard the term as encompassing all other evidence that contains implied statements or representations, as most, if not all, evidence does. 25In this case, a mere statement from the Defendant that at 9.16 he was at the service station and not on the road where photographed may have fallen within the term "assertion" in s 73A. That is something I do not have to decide for his evidence combined with the service station dockets do not. 26I turn then to the decision in Roads & Traffic Authority of New South Wales v Baldock [2007] NSWCCA 35; (2007) 168 A Crim R 566 on which the RTA much relied and wherein consideration was given by the Court to the earlier version of the legislation set out above. It was held, at [49], that "evidence that the device was not accurate or not reliable" within the meaning of s 46(2) must be evidence relating to the device as such, not to the product of the application of the device in the form of one or more measurements of speed and, at [35], that the references in s 47(3)(b) to "evidence to the contrary" was directed to evidence concerning the accuracy of the record, not to the accuracy of the speed measured by the speed measuring device. In this latter connection the Court placed reliance on the fact that in s 47(3)(b) the qualification in parentheses appeared immediately after the word "evidence", rather than, as in s 47(3)(a) at the end of the paragraph. The Court also observed at [34] and [45] that evidence from the defendant in that case to the effect that he was not travelling at the speed recorded could be taken into account on the ultimate issue of whether he had committed the offence. 27It was the RTA's contention here that the changes to the Act and in particular the changes to s 46(2) and s 47(3) were so limited in their terms that I should adopt a similar approach to the new version of those sections as the Court of Criminal Appeal had taken in connection with the old. On one view s 73A's reference to "a person with the relevant specialised knowledge" supports the view that it is evidence relating to the device as such that s 46(2) and s 47(3) are still directed. 28Certainly, the limited differences between the old and new versions of the legislation mean that the RTA's arguments cannot be summarily dismissed. However, ultimately the conclusion at which I have arrived is that they should not be accepted. A number of factors have led me to that conclusion. In the first place, it seems to me preferable in the course of interpretation to seek the natural meaning of the words and expressions used rather than to seek to fit within those words and expressions a meaning derived from different terms. Secondly, the interpretation I have adopted seems to me that which best accords with the words and expressions used. Thirdly, once one takes the view - as I have - that Parliament has not intended to make defence of allegations of camera recorded speed offences impossible except by means of a person with relevant specialised knowledge, the concept of potentially the same evidence being directed to the same issue at 2 different stages seems to me unworkable. Fourthly, the expressions relied on by the Court in Baldock - in s 46(2) "evidence that the device was not accurate or not reliable", and in s 47(3)"evidence to the contrary" - more readily point to evidence relating directly to the devices, than do the replacement expressions. 29An illustration of some of these points is provided by s 47(3) (c) - "A photograph ... is prima facie evidence of the matters shown or recorded on the photograph". As s 45 (1) contemplates, the matters so shown or recorded will include speed (as measured ...), date, time and speed limit. It seems absurd to contemplate that the accuracy and reliability of information concerning those matters can be, and only be, contradicted or challenged by evidence adduced by a person with relevant specialised knowledge ... and, as contemplated by Baldock then contradicted or challenged again - as evidence by a defendant that he was not speeding at the relevant time would do - by evidence not subject to the same limitations. 30But 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 Defendants' 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 Defendant 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. 31Before the Magistrate and in this Court it was submitted that, in any event, the dockets were not of a nature as to be admissible. I disagree. Particularly when regard is had to definition of "document" in the Dictionary to the Act, and to the terms of s 147, they were clearly business records within s 69 of the Evidence Act . 32In that connection, counsel appearing for the RTA referred to the decision of Norvill v Stokes [2006] NSWLEC 622 where Jagot J, after considering the terms of s 146 of the Evidence Act , held that in light of the evidence in that case, the section did not enable her to presume that a GPS device would identify its location with any particular level of accuracy. It was submitted that, there being no evidence as to the process by which the dockets relied on by the Defendant were generated, I could not find that the machine that produced them, produced an accurate account of the time they were produced. Dockets of the nature of those relied on by the Defendant have for many years contained statements of the time of their production on them. I can accept that, just as in the case of a watch, they may have been wrongly set and thus, until reset, inaccurate. However, common experience shows that, absent some particular reason to the contrary, the settings are, within a margin of a few minutes, generally accurate. Accordingly, it was and is, within the terms of s 146(2) "reasonably open to find that the device or process (that produced the dockets) is one that, or is of a kind that, if properly used, ordinarily produces that outcome" and therefore "it is presumed ... that, in producing the document or thing on the occasion in question, the device or process produced that outcome". 33Thus the dockets were admissible. There remained the question of their apparent inconsistency. The Defendant provided an explanation of this - receiving them at different times but - whether that explanation should have been accepted was a matter for the magistrate and was not debated during the appeal. And even if both were in fact produced at or about 9.15, the Defendant's evidence that he then attended to the air in his tyres would suggest that the time on the RTA photographs was wrong. 34In the result, the challenge to the magistrate's decision is not made out. The appropriate orders are:- (i) The Summons is dismissed; (ii) The Plaintiff is to pay the Defendant's costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2011
RTA
ADDARIO