Salameh Hijazi v David Graham Orr [1997] ACTSC 72 (25 September 1997)

SUPREME COURT OF THE ACT

SALAMEH HIJAZI v. DAVID GRAHAM ORR
No. SCA 68 of 1996
Number of
pages - 7
Motor traffic offences - Evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

HIGGINS J

CATCHWORDS

Motor traffic offences - Exceeding maximum speed limit - Laser LTI 20/20 speed detection device - No other evidence that vehicle speeding - Relevant contradictory evidence adduced - Offence not proved - Motor Traffic Act 1936 (ACT), ss142, 147CA, 147CB

Evidence - Speed measuring devices - Nature, operation and accuracy - Evidentiary value of s147CB(2) certificate - Prima facie evidence of facts stated in certificate - No inherent weight - Court must be satisfied beyond a reasonable doubt that offence made out - No need to prove specific failure of instrument or its operation - Motor Traffic Act 1936 (ACT), s147CB(2)

Leonard v Newell [1983] Tas R 78

Dunsmore v Elliott (1981) 26 SASR 496

Zappia v Webb [1974] WAR 15

Young v Owen (1972) 19 FLR 70

Peterson v Homes [1927] SASR 419

Thompson v Kovacs [1959] VR 229

Redman v Klun (1979) 20 SASR 343

HEARING

CANBERRA, 26 June 1997 (hearing), 25 September 1997 (decision)

25:9:1997

The Appellant appeared in person.

Counsel for the Respondent: Ms S Cronen

Solicitor for the Respondent: Director of Public Prosecutions

ORDER

THE COURT ORDERS THAT:

The appeal be upheld and the information dismissed.

DECISION

HIGGINS J

This is an appeal against conviction recorded by Special Magistrate Hardiman in the Magistrates Court on 4 October 1996.

That conviction was recorded following the hearing of an information laid, not by the respondent, but by Sergeant Bradley Johnston of the Australian Federal Police. The information alleged that the appellant, contrary to s142 Motor Traffic Act 1936 (ACT) (MTA),

... did drive [why not "drove"?] a motor vehicle ... ACT YNW 786 upon ... Erindale Drive, at a speed exceeding the maximum speed ... to wit, 80 kilometres per hour.

The particulars of the allegation were that it occurred at 2005 hours, "near Fadden" and the alleged speed was 101 kilometres per hour.

The respondent was a witness for the prosecution. He deposed that on the occasion alleged he was a constable of police on traffic speed detection duty. He was equipped with a laser LTI 20-20 speed detection device.

Before deploying that instrument, he carried out some tests with it. Those tests were said to have "... implied to me that the instrument is under self-check and it was correct". He tested the instrument from a known 25 metre distance away from a wall at police premises. The instrument returned a correct result, that is, zero speed and 25 metre distance. He checked the "scope alignment" before use of it. The nature and result of that test, apart from enabling the respondent to conclude that it was aiming correctly, was left quite obscure on the evidence given.

The laser device was then set up on the centre median strip on Erindale Drive about 70 metres east of Sulwood Drive.

The respondent acknowledged that to check the speed of a particular approaching vehicle it would have been necessary to have "a straight line of vision and sight". He said that he had found the range of the laser gun to be effective at 1.2 kilometres.

It was not disputed that the appellant was the driver of one of a number of vehicles approaching the "speed trap" the respondent and his colleague had established. He described the events which followed,

At the time of detecting the defendant's vehicle, his vehicle was actually travelling in ... the left hand lane ... there were four vehicles in the second [that is, right hand] lane. There was a car in front of the defendant's vehicle as they approached ... I had checked all cars' speeds approaching, including the one in front of Mr Hijazi's car and I checked the speed of the cars in the second lane. On pointing the - or detecting Mr Hijazi's speed, the laser emitted a tone and it came up as a speed. ... recorded a reading of 101 kilometres per hour.

The appellant was then directed to stop and did so. He was informed by the respondent of the alleged speed and asked the usual leading question, "... do you have any reason for speeding?".

The answer was non-responsive, "Was it 100?".

It was dark at the time but, the respondent says, he offered the appellant the opportunity to view the reading. That offer was not taken up.

A traffic infringement notice was then issued to the appellant.

The prosecutor tendered a printout of the notice, an "evidentiary certificate in relation to not allowing him enough time to pay that fine" and "a copy of the certificate in relation to the instrument with reference to the calibration certificate".

The respondent in his evidence confirmed that there were "three males and two females in the motor vehicle" of which the appellant was the driver.

The appellant gave sworn evidence. He asserted that he had been in the left lane because he was going slow. He asserted he was not exceeding 80km/h.

Save that he apparently misheard the respondent, mistaking "101 kilometres per hour" for "100 kilometres per hour", his evidence was otherwise consistent with that of the respondent. He offered the hypothesis that the laser beam must have been confused by the passage of vehicles in the right lane. He said he was between a vehicle behind and in front in the left lane whose speed he was matching. Neither of those, he said, was booked, though the vehicle in front was stopped but released without being issued a notice. There were, he said, also vehicles travelling past him in the right lane.

That account given by the appellant was not challenged in cross-examination. Indeed, as the respondent claimed to have checked the speed of all other approaching vehicles in both lanes, being those in view at the time when the appellant's vehicle was in view, it may be inferred that none of those vehicles was significantly exceeding the speed limit.

The prosecution relied on the respondent's evidence that he deployed the laser device in accordance with his standard procedure and had a direct line of sight of the appellant's vehicle as justification for finding the offence proved.

His Worship, in his oral reasons for decision acknowledged that if vehicles in the right lane were passing the appellant's vehicle during the sighting and deployment of the laser gun, "it would have been very difficult indeed for [the respondent] ... to check his [the appellant's] speed". Indeed, if they were passing they would, on the respondent's case have had to have been travelling at more than 101 kilometres per hour.

However, his Worship rejected that suggestion for the following reasons,

Now, the defendant's evidence says that there was a car in front of him, there was a car behind him and there were cars passing him all the time, all the way, he said, on that lane of the road that was between him and the Constable operating the laser. Now for this to be so, of course, at 8.00pm on 11 March well that would be extraordinary traffic. It would be extraordinary traffic for traffic to be passing like that at 8.00pm on 11 March.

The respondent's evidence was that, whilst the appellant's vehicle was approaching, there were four vehicles in the right hand lane and a car in front of his vehicle in the same lane. The only difference in the description offered by the appellant was that he stated that there was a further vehicle ahead of the one in front of him and a vehicle behind. What led his Worship to describe the appellant's assertion as "extraordinary" does not appear from the evidence. Indeed, the comment is particularly puzzling when the difference between the respondent's account which, presumably, his Worship did not regard as "extraordinary", differed very little from that offered by the appellant. It was, therefore, an inappropriate and logically insupportable observation indicating the presence of an erroneous approach to the evaluation of the evidence.

Concerning the obvious difficulty of sighting the laser gun across and beyond a stream of traffic in the right hand lane, his Worship asked himself,

... but then how continuous has that stream of traffic got to be to operate the laser gun, [the respondent] was not asked any questions on this, but it is a very quick thing. It is less than one second once the gun is sighted on the car and the trigger is pulled before the speed is recorded.

The other thing that I am concerned about is if [the respondent] were to turn around and just pull up one car that is obviously going at a normal speed, other cars are overtaking him and he didn't stop the other vehicles then [the respondent] would certainly be running a grave risk because he would not know whose car that was, who was in that car and he would find it very difficult if the wrong person were in that car or if any person were in that car, if he carried out a practice like this.

I do not believe for one moment that [the respondent] would be inclined to just single out a car and say, right I will book this one. He has been in the police force for some 20 odd years and he has qualified for both radar and laser. To operate the laser, it seems to me that that is now the most accurate speed device that the police officers have, I do not know, but it seems to me that it probably is, it is certainly a very simple device to operate. He trains the red light, in accordance with own evidence, on the front of that vehicle, he can see the whole of the vehicle and it is a very short period of time that it takes him just to pull the trigger and for the speed of the car and the distance the car is from him actually to be recorded.

I have no reason to believe whatsoever that [the respondent] was mistaken in being able to train the laser onto the defendant's car and I find the offence proved.

The respondent gave no evidence as to the time the laser needed to be trained on a vehicle without interference to achieve a valid result. The evidence did not, therefore, entitle his Worship to conclude that only one second would suffice. Nor did the respondent indicate for how long he sighted the laser device on the appellant's vehicle before activating the instrument and obtaining a result.

Further, whilst his Worship clearly doubted the appellant's evidence that a car ahead of him was stopped but allowed to depart, it was not something challenged by counsel for the informant. Of course, the self-represented appellant did not raise that as an issue with the respondent either. Whether that vehicle was stopped merely as a result of the driver assuming that the signal to stop was directed at him or her rather than the appellant cannot be inferred. Nor was the inference the appellant drew one which was at all likely. The fact, if it be so, that the vehicle in front of the appellant also stopped in answer to the respondent's signal was relevant. However, his Worship seems to have regarded it as indicating that the appellant's vehicle could not have been travelling at "a normal speed" in order for it to be singled out by the respondent. Another inference might be that unless the appellant was rapidly gaining on it before the signal to stop, neither vehicle was speeding.

The conclusion his Worship drew derives no support from the evidence nor was it suggested by the respondent that he noted anything, apart from the laser gun reading, to attract his attention to the appellant's vehicle before it was requested to stop. Further, the idea that it was impracticable for the respondent to stop the appellant unless there was no or little other traffic is not only unsustainable in itself, it contradicts the respondent's own evidence that there were other vehicles, at least four of them in the right hand lane and one in the left lane, whilst the appellant's vehicle was approaching, yet he signalled the appellant's vehicle to stop, presumably safely, notwithstanding the presence of that other traffic.

It follows from the above that his Worship's reasons for rejecting the appellant's evidence that he was not speeding, according to a reading of his own speedometer and his conformity to the speed of traffic in the vicinity, were seriously and fundamentally flawed.

The proceedings on appeal

On appeal, the appellant was again self-represented, although assisted by a family member. He sought to adduce further evidence. That was not objected to.

The further evidence was not challenged or disputed. A plan which displayed the state of traffic at the relevant time from the appellant's perspective was tendered. If accepted as accurate it would, as his Worship had observed, have been difficult for an accurate laser shot to be scored upon the appellant's vehicle for whatever time was needed to record a valid reading.

Additionally, there was evidence from Hassan Hijazi, a son of the appellant. He deposed that, being seated in the left hand front seat of his father's vehicle. He observed that the speedometer did not exceed 80km/h. Traffic was "fairly heavy". He confirmed that a vehicle immediately in front of his father's was stopped but allowed to proceed.

Another child, Hammam Hijazi, gave similar evidence.

Character evidence was tendered from three witnesses of apparent weight and standing.

Unfortunately, the exhibits tendered before his Worship were not made available to me. However, I will assume, as they were tendered in the original proceedings, that the documents had the effect attributed to them by their description so far as I can infer that effect from that description.

The evidentiary status of the laser device reading

Counsel for the respondent did not submit that the accuracy and evidentiary value of the reading taken by the respondent could be supported otherwise than by reference to the general rules of evidence. I was not referred to any particular statutory provision supporting the reading taken by the laser instrument in relation to the appellant's vehicle.

That may be right, but, if it is, it is surprising that the respondent did not use a device approved pursuant to s147CA MTA. Perhaps the certificate apparently tendered to his Worship did not conform to s147CB. As the certificate referred to in the evidence before his Worship was not tendered before me nor produced from the Magistrates Court, I am unable to make a finding one way or the other.

I was referred to a decision of Special Magistrate Dellar dated 7 February 1997. In that case a reading of speed was given as a result of the operation of the same kind of speed measuring device as was used in this case. Its accuracy was supported by expert evidence from a relevantly qualified engineer. The defendant called an expert who, though relevantly qualified, was, in his Worship's view, less qualified and less persuasive than the witness called to support the prosecution case.

His Worship considered that the alleged speed reading could not be explained as resulting from an error arising from the accuracy or deployment of the instrument. However, it is not apparent, save by implication, why his Worship rejected the evidence of the defendant who, in that case, had sworn that he was not speeding and, his Worship accepted, was not gaining on other vehicles around him. If the defendant had been speeding, then every other vehicle in the vicinity must also have been speeding. Of course, his Worship was entitled to take the view that, absent any error in deployment or accuracy of the LTI 2020 radar device, and, having regard to his assessment of him, the defendant was not telling the truth.

Nevertheless, the decision does support the view that the laser LTI 2020 is not supported by s147CA and s147CB MTA as no evidence authorised by those provisions was adduced before Special Magistrate Dellar in that case.

It was held, in Leonard v Newell [1983] Tas R 78, that a court is not entitled to take judicial notice of the nature, operation and accuracy of such devices, see also Dunsmore v Elliott (1981) 26 SASR 496. It may be different for an amphometer, see Zappia v Webb [1974] WAR 15 cf Young v Owen (1972) 19 FLR 70. It might become otherwise, if the nature and efficacy of such instruments become so generally accepted as to be a matter of common knowledge.

However, even if the reading in this case had been supported by a certificate referred to in s147CB(2) MTA, the consequence is that the same "... is evidence of the matters stated in the certificate and of the facts on which they are based". One of those matters would have been "... that the speed so measured was the speed so specified", see s147CB(2)(f).

To say that the statement in the certificate is "evidence" means that it is prima facie evidence of the fact stated. That is, it is sufficient evidence for a court to find that fact proved. But the Court is not obliged so to find, even in the absence of acceptable evidence of some specific malfunction, see Perkins v Pohla-Murray (1983) 51ACTR3. The Court must still be satisfied beyond reasonable doubt on all the evidence that the offence has been proved. Of course, in the absence of some relevant contradictory evidence, it would be unlikely that a Court would not be so satisfied. It depends on the nature and quality of the evidence adduced to contradict the speed reading, whilst recognizing that the prosecution bears the onus of proving the offence beyond reasonable doubt.

There was, in this case, uncontested evidence that the appellant's speedometer did not show more than 80km/h at any relevant time. Since 1927, at least, speedometers have been accepted as instruments, the accuracy of which may be accepted until the contrary is shown, see Peterson v Homes [1927] SASR 419; Thompson v Kovacs [1959] VR 229; Redman v Klun (1979) 20 SASR 343.

On appeal, the evidence of the speedometer reading was supported by two further witnesses, neither of whom was challenged.

It would be unreasonable to reject that evidence in favour of the laser device reading, particularly in the absence of any evidence from either of the two police officers present at the time that the appellant's vehicle appeared to be exceeding the 80km/h limit or, at least, was travelling noticeably faster than the other vehicles in the vicinity.

It should also be observed that evidence given by certificate has no inherent weight. To raise a reasonable doubt, it is not necessary for a defendant to prove some specific failure of the instrument or its operation. If, as here, there is a conflict between the laser instrument result and the speedometer result, neither of which can be shown to be wrong, it is impossible to accept the result shown by the laser instrument as proof beyond reasonable doubt of the commission of the offence.

Accordingly, whether the relevant certificates were duly made and tendered or not, the offence is not proved. The appeal must be upheld and the information dismissed.

I will hear the parties as to costs.