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Tuesday, 8 June 2010

Not following the instructions

The SA Supreme Court has decided another speed camera case in Police v Bulgin [2010] SASC 143. The Court affirmed that it's not necessary for the prosecuton to prove compliance with technical instructions (manufacturers' handbooks, user guides, instruction manuals, etc) as a prerequisite to the admissibility of certificates authorised under statute.



The respondent had been snapped by a camera allegedly travelling at 61 km/h in a 50 km/h zone. A certificate relied upon by the prosecution at the contested hearing was ruled inadmissible by the magistrate. The prosecution had no other form of evidence to lead in support of their charge under Road Rule 20, so it was dismissed.



White J summarised the issue before the Supreme Court [at 4]:



The Police now appeal against the dismissal of the complaint, contending that the Magistrate’s voir dire ruling was wrong. The appeal raises issues about the operation of the statutory aids to proof contained in s 79B(10) of the Road Traffic Act 1961 (SA) (RTA). The first issue is whether a Magistrate’s finding that a speed camera was not operated in accordance with the manufacturer’s operating instructions, or those issued by the Police themselves, with the resultant possibility of an incorrect reading, has the effect that the prosecution may not tender a certificate comprising a statutory aid to proof. The second issue is whether the prosecution must prove that the speed camera was in proper order and properly operated at the time of detection of the alleged offence before it can tender the certificate comprising the statutory aid to proof.




The statutory enforcement schemes operating in SA and Victoria are different, but similar. Regulation 19 of the Road Traffic (Miscellaneous) Regulations 1999 contains requirements with respect to the programming, positioning and operation setting of a speed camera. It can be likened to Division 6 of the Road Safety (General) Regulations 2009 currently in operation here.



A conventional approach holds that a certificate relating to the product or output of a prescribed device is prima facie admissible if it complies with relevant statutory requirements, with the weight to be attached to it to be determined once admitted: see DPP v Juchnowski [2008] VSC 181 for a local example. This case took a different course in the Magistrates' Court. The evidence was objected to, and a voir dire conducted into its admissiblity.


Both sides called expert evidence.



White J at 21 - 22:



21. In the voir dire hearing the prosecution called a Mr Hoffmann, an electrical engineer, and the respondent called a Dr Garwoli, a chartered professional engineer and scientist. Dr Garwoli had prepared a written report (exhib D1) in which he said:



The equipment utilised in both of these matters is excellent: I have no criticism of the equipment whatsoever ... My whole argument is based on the fact that there are adequate operating instructions relating to the use of this equipment and that these instructions have not been followed.




Dr Garwoli then referred to instructions contained in a manual containing operating procedures issued by the South Australian Police (exhib D2), the manufacturer’s instructions relating to the use of the speed camera (exhib D3), and to an Australian standard.



22. Dr Garwoli expressed the opinion that the operation of the speed camera on 7 June 2007 had not complied with the operating procedures of the police and of the manufacturer in six separate respects. Although Mr Hoffmann gave his evidence on the voir dire before Dr Garwoli, his evidence was directed to the criticisms of Dr Garwoli. He disagreed with Dr Garwoli’s conclusions. Neither Mr Hoffmann nor Dr Garwoli referred to reg 19 in the course of their evidence on the voir dire, nor to the matters required by reg 19. The question on the voir dire in relation to the alleged offence of 7 June 2007 was solely that of whether there had been non-compliance with the police and manufacturer’s operating instructions with the resultant possibility of an unreliable reading.




The respondent relied upon this opinion to argue that proof by the prosecution that the speed camera used in the detection of an offence had been in good operating order and was being properly operated was an essential condition of the admissibility of a certificate under s 79B(10)(b). It was submitted that unless the camera was factually proven to be in good order and condition, and operated correctly, any photograph which it took could not be said to indicate anything, and therefore wouldn't satisfy a threshold test of relevance for its admissibility.



White J rejected this construction. He found that not every departure from operating instructions would make a reading unreliable, referencing Police v Henwood (2005) SASR 15.



the Court declined to find that the phrase evidence to the contrary casts a legal burden on an accused to rebut a statutory presumption on the balance of probabilities (as expressed in Evans v Benson (1987) SASR 317). The more recent authorities of Police v Dodd (2004) 88 SASR 130 and Llewellyn v Police (2005) 91 SASR 418 hold that certificates are proof until contrary evidence is raised by the accused, at which point the burden returns to the prosecution to prove the charge beyond reasonable doubt (the Liberato approach).

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