To which the Magistrate agreed.
10 Mr Taylor asked Mr O'Neill whether he was familiar with the camera. He said that he was. He asked whether he had ever attended the site. He said, yes, he had driven through it. He was asked whether the vehicle (meaning the defendant's vehicle) is travelling generally west, to which Mr O'Neill agreed. He was directed to the words "Lane 3" on the photograph and was then asked:
"In light of that, can you just give the evidence of where lane 1 starts through to how many lanes are depicted in the photograph."
11 Mr Miralis, not surprisingly, objected once more. He explained once more that the matter was a technical one and that Mr O'Neill was not qualified to give evidence about it. In my view this objection was well taken. It was a technical question. To state the question in anthropomorphic terms, Mr O'Neill was being asked not what was in his mind, or what was in the mind of an ordinary member of the public, let alone the ordinary and reasonable member of the public, he was really being asked what was in the camera's mind. It is plain he was not qualified to give this evidence. If he had been involved in the setting up of the camera systems or had knowledge of it, he would have been adequately qualified.
12 Mr Miralis added that, at all events, the Magistrate should understand a lane in the sense in which it is used by the Australian road rules which, as I understand it, would have given a different answer. The learned Magistrate asked the prosecutor for his response to the submission of Mr Miralis that it was "a technical question", the prosecutor said:
"No I don't think it is. I think Mr Morris is getting - he thinks that this is in the nature of opinion evidence. If someone has seen and seen the lane, the physical layout of the road, they can say and know as a matter of fact that lane 1 is this lane, this is lane 2, and this is lane 3, and this is lane 4. They can give that evidence and it says that is the evidence and they are the four lanes in the photograph. He can give that evidence. It's not opinion. It's evidence of fact that this witness has seen to perceive."
13 In this respect, if the prosecutor was right and he was only asking the witness about the physical layout of the road, the question was barely relevant since the physical layout was perfectly evident from the photographs. But on the assumption that it was relevant, he was right, it was not opinion evidence. The difficulty with the prosecutor's submission is that it did not answer Mr Miralis' point. That the prosecutor was merely attempting to adduce geographical as distinct from technical information is shown by the Magistrate's response. Her Honour pointed out that she was perfectly familiar with the site in question and really did not need any evidence about its physical layout. The prosecutor implicitly accepted this observation, saying, in effect, that all he wanted to do was place this information on the record rather than having the matter the subject of judicial notice. When the Magistrate agreed that the prosecutor could elicit this information, she asked whether he had any further evidence he wished to adduce, to which the prosecutor said that he did not.
14 At this stage, therefore, as it seems to me the matter is quite clear. Mr O'Neill had in his statement given a description of what was at all events contained in the photograph. He had identified the defendant's vehicle as being in "Lane 3". There was no basis upon which he could give that opinion since it did not fall within his experience or expertise, or to be more precise, the objection having been taken as to his experience or expertise, the prosecutor did not seek to qualify him. In my view the prosecutor withdrew any suggestion that Mr O'Neill's statement should be taken as an expert opinion upon which a conclusion as to the way in which the text in the photograph could be read.
15 The case then proceeded through a number of other steps, and at the end the prosecutor grappled with the problem of whether the defendant's vehicle was indeed in "Lane 3", or whether the "Lane 3" referred to in the photograph identified a different vehicle, by appealing in substance to commonsense. He submitted that the Magistrate could look at the photographs and number the lanes herself. He said, in substance, that merely looking at the photograph told you that the defendant's vehicle was in "Lane 3". He submitted that the camera indicated that the offending vehicle is in "Lane 3". When the Magistrate asked him:
"How do I work out what "Lane 3" is?"
the prosecutor simply said:
"Lane 3 is moving from your left, I guess it's the more empty of the two lanes and the blue car [not the defendant's vehicle] is lane 2."
16 It is clear from this submission that the prosecutor was not relying upon any opinion evidence at all but was simply relying upon commonsense observations of the scene as depicted in the photographs.
17 In her reasons the learned Magistrate identified the central problem in the case, namely what did the words "Lane 3" cited in the text on the photograph mean. She pointed out that if it meant what the prosecution contended it was not the normal police numbering of lanes. She noted that Mr O'Neill was unable to give evidence of what was in the camera's mind (my own phrase) because he was not qualified to do so. She said:
"Clearly Mr O'Neill wasn't somebody who was capable of telling us about how the camera functions and codifies what it photographs."