New South Wales Supreme Court CITATION : RTA of NSW v Nichols [2005] NSWSC 946 HEARING DATE(S) : 19/09/2005 JUDGMENT DATE : 22 September 2005 JUDGMENT OF : Hoeben J at 1 DECISION : 1. That the order of the Local Court at Scone of 12 May 2005 dismissing the proceedings commenced by the CAN filed by the plaintiff against the defendant on 28 September 2004 be set aside; 2.An order that the Local Court at Scone rehear the proceedings commenced by the filing of the CAN and determine them according to law; 3.That there be no order as to the costs of the appeal. CATCHWORDS : Speed measuring devices and camera recording devices - whether certificates conclusive - sections 46 and 47 of Road Transport (Safety and Traffic Management) Act 1999 - whether evidence sufficient to rebut presumption in sections 46 and 47 whether Local Court Magistrate had excessively intervened in conduct of proceedings. Crimes (Local Courts Appeal and Review) Act 2001 LEGISLATION CITED : Road Transport (Safety and Traffic Management) Act 1999 Road Transport (Safety and Traffic Management) (Road Rules) Regulations 1999 CASES CITED : Burwood Municipal Council v Harvey (1995) 86 LGERA 389 Roads & Traffic Authority of NSW - Plaintiff PARTIES : Peter Michael Nichols - Defendant FILE NUMBER(S) : SC 12467/2005 Mr T Lynch - Plaintiff COUNSEL : Defendant in Person Hunt and Hunt - Plaintiff SOLICITORS : Defendant in Person LOWER COURT JURISDICTION : Local Court LOWER COURT JUDICIAL OFFICER : Baptie LCM THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HOEBEN J Thursday, 22 September, 2005 12467/2005 – ROADS & TRAFFIC AUTHORITY OF NSW v Peter Michael NICHOLS JUDGMENT Proceedings in Local Court 1 HIS HONOUR: The Roads and Traffic Authority of New South Wales (RTA) appeals against the dismissal by a Local Court Magistrate of a speeding charge against Mr Michael Nichols. The charge was set out in a Court Attendance Notice (CAN) issued on 28 September 2004. The Notice asserted that at 3 pm on 12 June 2004 at Murrurundi Mr Nichols travelled on the New England Highway in a southerly direction at a speed of 85 km/h in an area with a speed limit of 60 km/h. The appeal is brought pursuant to s56(1)(c) Crimes (Local Courts Appeal and Review) Act 2001. This subsection allows an appeal as of right on a question of law from an order made by a Local Court dismissing a matter the subject of summary proceedings. 2 The prosecution case was based upon a photograph of a vehicle owned by Mr Nichols, taken by a camera installed by the RTA pursuant to the Road Transport (Safety and Traffic Management) Act 1999 (the Act). The camera which captured the image of Mr Nichols' vehicle was located between Bernard Street and Glenalvon Road on the New England Highway at Murrurundi. The speed limit travelling south between those two locations was 60 km/h. The photograph indicated that at 3 pm on 12 June 2004 the vehicle owned by Mr Nichols was travelling south at a speed of 85 km/h. The plaintiff's CAN was dismissed by the Local Court Magistrate, her Honour Ms Baptie. 3 Her Honour's judgment was as follows: "In the matter of the RTA and Peter Michael Nichols, one matter being a speed camera detected offence allegedly occurring on 12 June 2004 I have heard evidence today from Mr Malcolm Roberts who is a camera operator with the RTA, speed camera operator with the RTA and I've also heard evidence from the defendant. In addition to that I have had tendered before me a number of certificates and a photograph which is from the speed camera. The evidence from Mr Roberts effectively is that he tested the camera on 1 June 2004 which brings within the 30 days required by s47(5) and found that the camera was operational. The section 46 Certificate indicates that the speed measuring device which is embedded in the road was tested on 3 January 2004 and was therefore compliant with the timeframe being 12 months. I note the construction of both section 46 and 47 in relation to the effectively a strict interpretation of the contents of those certificates. I note however, having said that, there is the provision for and is stated as "unless evidence to the contrary is adduced". I have heard evidence today from Mr Roberts that it is known that that camera goes off-line particularly in times of thunderstorms. It is also clear from his evidence that other operators come to attend to that camera. He is unable to indicate today in evidence as to whether that occurred, that is, if any malfunction occurred in either the speed recording device being the camera and the speed measuring device being the strip on the road between 1 June 2004 alternatively 13 January 2004 which is something out of his scope and 12 June 2004. This is a matter that has been raised previously in evidence in unrelated matters. It is a matter which I would have believed the RTA may have considered attending to in terms of the evidence before me providing me with evidence which would remove any suggestion that there was a contrary inference available in terms of that particular camera. That has not been the case today. One is therefore left with the consideration based on the evidence provided by the RTA today that the camera can malfunction. I am therefore not satisfied that the matter has been established beyond reasonable doubt and the matter is dismissed. Mr Nichols, that means that I have not been satisfied that the case has been proven against you and that is the end of it as far as you are concerned and you can go." Statutory scheme 4 Under the Act, provision is made for the installation and operation of two devices designed to detect speeding offences. The first is "an approved speed measuring device" (s 44(1) of the Act) and the second is "an approved camera recording device" (s 45(1)). Where the speed measuring device detects a vehicle exceeding the speed limit, the approved camera recording device takes a photograph of the vehicle, recording on the photograph the following information (as set out in s45(1)): "(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) the direction in which the vehicle is travelling (that is towards or away from the device)." 5 The legislation recognises the obvious need for such devices to be accurate. It therefore requires that they be periodically checked. In the case of the approved speed measuring devices, that check must take place every 12 months, as prescribed by the Road Transport (Safety and Traffic Management) (Road Rules) Regulations 1999, regulation 156(c). The camera recording devices, on the other hand, must be checked and certified as accurate within 30 days before the day recorded on the photograph relied upon in the particular prosecution (s 47(5)(b) of the Act). 6 The Act makes provision for certificates to be admitted into evidence, where signed by authorised officers, certifying that each device has been tested and found to be accurate. 7 Section 46 of the Act dealing with approved speed measuring devices is in these terms: "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 (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, 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 of the accuracy or reliability of the approved speed measuring device is not required in those proceedings unless evidence that the device was not accurate or not reliable has been adduced. …" 8 In respect of approved camera recording devices, s 47 of the Act is expressed in these terms: "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. (2) In proceedings in which such evidence is given: (a) the provisions of section 46 relating to the accuracy or reliability of the approved speed measuring device apply, 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 is evidence (unless evidence to the contrary is adduced) that the photograph has not been altered since it was taken. (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 accepted as having been so taken (unless evidence to the contrary is adduced), and (b) is evidence (unless evidence to the contrary is adduced) of the matters shown or recorded on the photograph. … (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, (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." Evidence in Local Court 9 Mr Nichols appeared for himself in the Local Court. A statement from Malcolm Roberts, a speed camera operator employed by the RTA, was tendered without objection. That statement had annexed to it the photograph showing that at Murrurundi on 12 June 2004 when a speed limit of 60 km/h applied, motor vehicle No UGB 638 travelled in a southerly direction on the New England Highway at a speed of 85 km/h detected by the approved speed measuring device. The statement also had annexed to it certificates under the Act as to the ownership of the vehicle, as to the testing and accuracy of the approved speed measuring device on 13 January 2004 and as to the testing of the camera recording device which was found to be accurate as of 1 June 2004. 10 Mr Roberts gave evidence. Mr Nichols declined to ask any questions of Mr Roberts. Her Honour, however, did ask questions of him: "Q. Is it still the case as far as you know, that during thunderstorms this camera goes off line? ROBERTS: It does go off, yes. In trip the switch … Q. In relation to further testing, you've got no information one way or the other as to the accuracy of those testings. Would that be right? ROBERTS: If there was a problem with the camera they'd get me to close it down. Q. And there has been problems in the past which have required you to close the camera down? ROBERTS: No, no your Honour. Q. So why did you offer that answer? ROBERTS: Because they'll know if they've got a problem in Sydney. It's a network camera and they'll ring me if they have a problem. Q. And what sort of problems would they be? ROBERTS: Well whether it's still on right, whether there is a storm being around. Shift the switch on it. Q. Well your early evidence indicated that you've been called out when the camera has been tripped by an electrical storm? ROBERTS: On a few occasions I have yes your Honour. … Q. Mr Roberts, you performed an inspection on the camera at Murrurundi on 1st June 2004? ROBERTS: Yes. Q. And are you able to recall whether or not between the 1st June 2004 and 12th June 2004 you were recalled out to that location to that specific camera to perform any re-setting or any maintenance tasks? ROBERTS: I attend each camera every, between 21 days and 30 days. Q. But in particular between 1st of June and 12th of June 2004 can you recall attending that camera and re-setting it? ROBERTS: No I can't. Q. But it's possible Mr Roberts you did? ROBERTS: I would have to look at my records your Honour I'm sorry." 11 Mr Nichols gave evidence to the effect that he had been paying particular attention to speed control signs and he did not believe that he could have been travelling at 85 km/h in a 60 km/h area. Her Honour made no finding as to whether or not she accepted that evidence. Appeal 12 The plaintiff relies upon three errors of law in its appeal: (i) That her Honour erred in holding that the evidence before her was sufficient to come within the statutory exceptions within sections 46 and 47 of the Act, ie was "evidence to the contrary". (ii) That her Honour misunderstood and misinterpreted the scheme of the Act. (iii) That her Honour's intervention in the conduct of the proceedings was excessive so as to constitute an error of law. Decision 13 Grounds of Appeal 1 and 2 are really saying the same thing. Both grounds challenge the finding by her Honour that because the camera recording devices can on occasions malfunction, this constituted "evidence to the contrary" as those words are used in ss 46 and 47 of the Act so as to rebut the presumptions in favour of the plaintiff in those sections. 14 In order to see whether these grounds have been made out it is necessary to analyse the approach of her Honour. It is clear that her Honour did consider that the presumptions in favour of the plaintiff in ss 46 and 47 had been rebutted by the evidence before her. The evidence to which she referred in her judgment was that that camera recording device could malfunction in thunderstorms, that other operators had from time to time attended to that camera recording device and that Mr Roberts was unable in his evidence to say that no such malfunction had occurred following testing up to 12 June 2004. 15 In following that approach I am of the opinion that her Honour did fall into error and that the first two grounds of appeal have been made out. 16 Section 46 of the Act refers to the speed measuring device and is in two parts. Subsection 46(1) provides that a certificate is evidence of the particulars contained in it unless evidence to the contrary is adduced. Those particulars are that the speed measuring device is approved under the Act and that it was tested and operating correctly on the day specified on the certificate. The evidence to which her Honour referred did not and could not traverse those matters. 17 Subsection 46(2) provides that once such a certificate is tendered in proceedings, no further evidence as to the accuracy or reliability of the speed measuring device is needed unless evidence that the device was not accurate or not reliable has been adduced. Implicit in that qualification is that the inaccuracy or unreliability has to have occurred within the period under consideration, ie after the date of testing which in this case was 13 January 2004. 18 The evidence to which her evidence referred was unspecific as to time and related only to the camera recording device. It was not capable of establishing that the speed measuring device was not accurate or not reliable between 13 January and 12 June 2004. That being so there was no requirement for the plaintiff to adduce evidence as to the accuracy or reliability of the approved speed measuring device. The certificate was conclusive. Accordingly her Honour erred in concluding that Mr Roberts' inability to positively assert that there had been no malfunction in the speed measuring device between 13 January and 12 June 2004 was relevant to that issue. 19 Section 47 deals with the camera recording device. Under s 47(5) a certificate specifying a date of testing within 30 days and that on inspection the camera recording device was operating correctly is evidence of those facts unless evidence to the contrary is adduced. The evidence to which her Honour referred did not and could not traverse either of those matters. 20 Once ss 46 and subs 47(5) have been satisfied, the speeding offence may be proved by the tender of a photograph recording the specified information (subss 47(1) and 47(3)). In particular subs 47(3) provides that the photograph is evidence (unless evidence to the contrary is adduced) of the matters shown or recorded on the photograph. 21 The fact that at some time unspecified in the past the camera recording device under consideration had a tendency to malfunction during a thunderstorm and that at some unspecified time in the past other operators had attended to that device could not ever amount to "evidence to the contrary of the matters shown or recorded on the photograph". To do so the evidence would have to be much more specific as to any or all of those matters (see [4] hereof]. At the very least there would need to be some evidence of a thunderstorm and an actual malfunction at some time after 1 June 2004 (being the date of the subs 47(5) testing) and before 12 June 2004. The inability of Mr Roberts to say one way or the other that there had been such a malfunction could never amount to such evidence. 22 There was no evidence before her Honour that either device was not accurate or reliable. The certificates in respect of the testing before the alleged offence, which was in the period prescribed in each case, was evidence of their accuracy. The evidence upon which her Honour relied went no higher than to establish that in the case of the camera recording device there was a possibility of a malfunction in a thunderstorm. There was no evidence of any thunderstorm nor of any malfunction between 1 June and 12 June 2004. 23 That is enough to dispose of the appeal. I do, however, wish to say something about the third ground of appeal. 24 As often occurs when litigants represent themselves her Honour found herself in a difficult position. Her obligation was to ensure as best she could that a fair trial took place. Because of lack of knowledge and experience Mr Nichols did not ask any questions of the plaintiff's principal witness. Her Honour sought to redress that imbalance by asking a number of questions to test the evidence of Mr Roberts. 25 So far as I can judge from the transcript, her Honour's questions were polite and appropriate. Her approach could in no way be characterised as a "detailed and combative cross-examination" of Mr Roberts such as was criticised by the Court of Appeal in Burwood Municipal Council v Harvey (1995) 86 LGERA 389. Accordingly were this the only ground of appeal I am of the opinion that no error of law occurred. Given the conclusion which I have reached in relation to the first two grounds of appeal however, it is not necessary to take that matter further. Orders 26 Since this was something of a test case, the plaintiff advised the Court that should it be successful it would not seek any costs against Mr Nichols. I therefore make the following orders: 1. That the order of the Local Court at Scone of 12 May 2005 dismissing the proceedings commenced by the CAN filed by the plaintiff against the defendant on 28 September 2004 be set aside. 2. An order that the Local Court at Scone rehear the proceedings commenced by the filing of the CAN and determine them according to law. 3. That there be no order as to the costs of the appeal. ********** 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.