RTA v McNAUGHTON [2006] NSWSC 115

New South Wales Supreme Court

CITATION : RTA v McNAUGHTON [2006] NSWSC 115 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 20 and 23 February 2006

JUDGMENT DATE : 23 February 2006

JURISDICTION : Common Law

JUDGMENT OF : Adams J at 1

EX TEMPORE JUDGMENT DATE : 02/23/2006

DECISION : Appeal dismissed; Plaintiff to pay the defendant's costs

CATCHWORDS : Appeal from Magistrate - speed camera - meaning of text on photograph - mere question of fact - opinion as to identified vehicle - expertise required

LEGISLATION CITED : The Road Traffic (Safety and Traffic Management) Act 1999 ss 45, 46, 47

CASES CITED : Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139

Roads & Traffic Authority of New South Wales (Plaintiff) PARTIES : v Stephen McNaughton (Defendant)

FILE NUMBER(S) : SC 15460/05

COUNSEL : P Boulton SC with T Lynch (Plaintiff) M Thangaraj (Defendant)

SOLICITORS : B C Hearnden (Plaintiff) Phillip Gibson (Defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT JUDICIAL OFFICER : Giles LCM

Ex tempore - checked

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

THURSDAY 23 FEBRUARY 2006

15460/05 - ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v STEPHEN MCNAUGHTON

JUDGMENT

1 HIS HONOUR: This is an appeal by the Roads and Traffic Authority against the decision of a Magistrate acquitting the defendant of the offence of exceeding an applicable speed limit. The Authority submits that the acquittal was itself, or was otherwise based upon, an error of law. 2 The evidence tendered by the prosecution in the Local Court comprised two photographs taken by a camera which was an approved camera recording device within the meaning of s 45 of The Road Traffic (Safety and Traffic Management) Act 1999. Such a device is designed to take photographs of vehicles being driven in excess of speed limits and to record on such photographs the vehicle's speed, the date and time on which, and the place at which, the photograph was taken, the relevant speed limit, and "the direction in which the vehicle is travelling (that is, towards or away from the device)…". 3 Section 46 of the Act makes provision for the certification of the accurate and proper operation of the device at the material time. A certificate to this effect was tendered. Under s 47 a photograph taken by the device and tendered in evidence is evidence of the matters shown and recorded on it unless evidence to the contrary is adduced. 4 Two photographs were tendered in evidence, one being a close-up of a portion of the other. Both photographs contained the same text. Included in that text is the following: "Location Code: 9603. Location Desc: President Avenue, Gymea. Direction: Towards operator: 052."