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Tuesday, 15 September 2009

Laser prosecution zapped by wrong name

In February this year the West Australian Supreme Court dismissed the prosecution appeal in Hands v Baker (2009) 52 MVR 156.

Ivan Baker was charged with speeding. The police nabbed him at 113 km/h in a 50-zone, relying on a laser speed measuring device called the LTI 20-20 Ultralyte.

The Road Traffic Act 1974 (WA) s 98A defines a speed measuring equipment as apparatus approved by the Minister and published in a notice in the Government Gazette.

In 1992 (yes, that long ago), the Minister approved the LTI 20-20 as speed measuring equipment.

The problem for the police in this case was that the device they used on 17 April 2008 was an LTI 20-20 Ultralyte. In oral evidence, one police officer said there was also another different model, the LTI 20-20 Ultralyte Compact.

The magistrate first hearing the case wasn't sure if the LTI 20-20 gazetted in 1992 was the same thing as the LTI 20-20 Ultralyte used in 2008, and dismissed the charge.

At the appeal, the Supreme Court agreed with him.

[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.

(Looking at the manufacturer's website, there seems to be some merit to this conclusion: it lists four different Ultralyte models, and none of them are called the 20-20.)

The Victorian Court of Appeal rejected a similar argument about prescribed preliminary breath testing devices, in Walker v DPP, unrep, 13 May 1993. In that case a police officer gave evidence that he used a Lion Alcometer to administer a preliminary breath test to a driver, rather than a Lion Alcolmeter. The defendant claimed there was no evidence a prescribed device was used. The Court simply said the submission was 'absurd' and dismissed it.

Here in Victoria, speed measuring devices are defined in the Road Safety (General) Regulations 1999 reg 105. They are also prescribed in reg 305, and must be tested, sealed and used in prescribed ways, and a certificate (found in Schedule 2) tendered to establish compliance with all those requirements.

So it might be that Hands v Baker won't provide a lot of succour for speeding Victorian motorists.

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