New South Wales Supreme Court CITATION : Director of Public Prosecutions v Gramelis [2010] NSWSC 787 HEARING DATE(S) : 16 June 2010 JUDGMENT DATE : 21 July 2010 JUDGMENT OF : Price J at 1 DECISION : (i) The appeal is allowed; (ii) The decision of the magistrate made at Mt Druitt Local Court on 14 December 2009 to dismiss the Court Attendance Notice issued to the defendant be set aside; (iii) The matter be remitted to the Mt Druitt Local Court to be dealt with according to law, (iv) The defendant is to pay the plaintiff's costs, (v) The defendant is to have an indemnity certificate in respect of the appeal pursuant to s 6 Suitors' Fund Act 1951. CATCHWORDS : Appeal against decision of Local Court Magistrate - speeding offence - speed measuring device - errors of law - procedural fairness - judicial notice - whether discretion not to remit to Local Court Crimes (Appeal and Review) Act 2001 s 56(1)(c) s 59(2), s 59(2)(a) Criminal Prodecure Act 1986 s 16, s 16(1), s 21 s 21(1), LEGISLATION CITED : Director of Public Prosecutions Act 1986 s 9 Evidence Act 1995 s 144, s 144(1)(a), s 144(4) Road Rules 2008 Rule 20 Road Transport (Safety and Traffic Management) Act 1999 s 46, s 46(1), s 46(2), s 73A, s 73A(2) Suitors' Fund Act 1951 s 6 Supreme Court Rules 1970 Part 51B, Rule 6(2)(b) CATEGORY : Principal judgment Acuthan v Coates (1986) 6 NSWLR 472 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343 Director of Public Prosecutions v Wunderwald [2004] NSWSC 182 CASES CITED : DPP (NSW) v Knight [2006] NSWSC 646 DPP v Yeo [2008] NSWSC 953 RTA (NSW) v Baldock [2007] NSWCCA 35 RTA v Bourke [2010] NSWSC 559 RTA v Field [2005] NSWSC 606 PARTIES : Director of Public Prosecutions (NSW) Nickolas Gramelis FILE NUMBER(S) : SC 2010/59542 COUNSEL : Mr F Veltro (Plaintiff) Mr J R Young (Defendant) LOWER COURT JURISDICTION : Local Court LOWER COURT JUDICIAL OFFICER : Toose LCM LOWER COURT DATE OF DECISION : 14 December 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PRICE J 21 July 2010 2010/59542 Director of Public Prosecutions v Nickolas Gramelis JUDGMENT 1 His Honour: The Director of Public Prosecutions (the plaintiff) seeks an order pursuant to s 59(2)(a) Crimes (Appeal and Review) Act 2001 setting aside the order of a Local Court Magistrate on 14 December 2009 dismissing a Court Attendance Notice (CAN) which alleged that the defendant Nickolas Gramelis breached Rule 20 of the Road Rules 2008. An order that the matter be remitted to the Mt Druitt Local Court to be dealt with according to law is also sought. 2 The proceedings in the Local Court were conducted by a police prosecutor. The plaintiff has, pursuant to s 9 Director of Public Prosecutions Act 1986, taken over the conduct of the appeal. 3 The grounds of appeal (as amended) are identified in a supplementary notice. The plaintiff contends that the magistrate erred in law as follows: (i) Failing to have regard to sections 16 and 21 Criminal Procedure Act 1986. (ii) Failure to have proper regard to Rule 20 Road Rules 2008 and section 72A and Schedule 1 Road Transport (Safety and Traffic Management) Act 1999. (iii) Failure to have proper regard to s 46(2) Road Transport (Safety and Traffic Management) Act . (iv) Failure to have proper regard to s 73A Road Transport (Safety and Traffic Management) Act. (v) Failure to properly apply s 144 Evidence Act 1995. 4 The defendant has filed a Notice of Contention which I propose to consider at a later stage. The summons 5 Before venturing into the plaintiff's grounds of appeal, it is necessary to consider the defendant's contention that the summons is defective in that it does not state that the appeal is made pursuant to s 56(1)(c) Crimes (Appeal and Review) Act. The defendant pointed out that the supplementary notice to amend the summons was not directed to invoking the jurisdiction of the Court under s 56(1)(c) but to the grounds of appeal. 6 Whilst it is true that the summons itself makes no reference to s 56(1)(c), the notice signed by the magistrate extending time for instituting the appeal pursuant to Part 51B, Rule 6(2)(b) Supreme Court Rules 1970 (SCR) does. The notice is annexed to the summons. The summons, as amended by the supplementary notice, complies with Part 51B Rule 8 SCR as there are specific statements of the grounds upon which it is contended there are errors of law and a statement that the appeal is from the whole of the decision below. Order 3 of the summons makes it clear that the subject of the plaintiff's complaint is the dismissal of the proceedings by the magistrate. The defendant does not contend that he did not understand that the appeal was brought under s 56(1)(c). The summons, in the circumstances, is sufficient to invoke the jurisdiction of this Court. It is, however, preferable that the summons itself clearly identifies the section of the Crimes (Appeal and Review) Act upon which the prosecutor's appeal is founded. Questions of law 7 An appeal may be made under s 56(1)(c) Crimes (Appeal and Review) Act "only on a ground that involves a question of law alone". A convenient summary of what amounts to "a question of law alone" is found in the observations of Johnson J in Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343 at [58] – [62]: "… There is no universally applicable test for distinguishing questions of law from questions of fact: Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389 at 394; Sood v R [2006] NSWCCA 114 at paragraph 30. The formulation "question of law" employs general words capable of application at different levels of generality: Attorney General for NSW v X (2000) 49 NSWLR 653 at 660 (paragraph 25). The expression "question of law" is wider than "error of law" : Attorney General for NSW v X at 677 (para 124). A mixed question of fact and law does not fall within the description of "question of law alone" : Williams v The Queen (1986) 161 CLR 278 at 287, 314; Attorney General for NSW v X at 663 (para 44). That an appeal to this Court by a prosecutor from an acquittal in summary criminal proceedings is confined to a question of law alone is not surprising. Such an appeal constitutes a statutory exception to the rule against double jeopardy: Davern v Messel (1983-1984) 155 CLR 21 at 30. However, a decision of a court of summary jurisdiction acquitting a defendant has never been regarded with the same sanctity as the verdict of a jury and the consistent trend of legislation, both in England and Australia, has been towards allowing the prosecution to appeal against an order of a Magistrate dismissing a charge and empowering the Supreme Court on appeal to quash the order: Davern v Messel at 37-38." 8 Where it appears that a judicial officer has misdirected himself, a finding of fact may reveal an error of law. As was explained by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156: "A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made." The Court Attendance Notice 9 The offence contrary to Rule 20 Road Rules to which the defendant pleaded not guilty was alleged to have occurred on 1 July 2009 on The Northern Road Luddenham and was described in the CAN as "Exceed Speed over 10km/h – School Zone." The particulars provided that the time of the offence was at "02:58 PM", the speed limit being 40 km/h and the speed travelled 61 km/h. Rule 20 Road Rules provides: " Obeying the speed limit A driver must not drive at a speed over the speed limit applying to the driver for the length of the road where the driver is driving. Penalty and disqualification: a driver who contravenes this rule is guilty of an offence and is liable to a maximum penalty and a period of disqualification (if any) determined in accordance with rule 10-2." The hearing in the Local Court 10 There was no issue in the hearing that the alleged offence occurred on a school day and at a time when the speed limit of 40 km/h applied. During the hearing the magistrate identified that the sole issue was that of the speed that the defendant had been driving. 11 The defendant was represented in the Local Court by Mr Conomos of counsel. Senior Constable Faul was the only witness called in the prosecution case. His witness statement, tendered without objection, included the following: "3. On Wednesday 1 July 2009 at 7.00am I carried out set up procedures at Fairfield Police Station on a laser based speed measuring device known as Prolaser III (lidar) serial number 375 in accordance with the manufacturers guidelines and Police Instructions and performed the testing procedure and found that the lidar was operating correctly. 4. About 2.30pm I stopped at the intersection of Roots Avenue and The Northern Road, Luddenham, and began to monitor the speed of vehicles' travelling both north and south bound through the school zone outside Luddenham Public School. 5. About 2.58pm I observed a white Isuzu truck travel south in lane 1. This vehicle was travelling well in excess of the posted speed limit of 40 kph. I carried out a speed check of not less than 3 seconds on the vehicle and saw its speed increase from 61 kph to 62 kph. I released the trigger on the lidar locking the speed at 62 kph. This indicates a departure speed of 62 kph. 6. I activated the warning devices on FA 209 and followed the vehicle and saw the registration number was RCL – 629…" 12 Senior Constables Faul stated that he was unable to safely stop the defendant's vehicle until just after Badgery's Creek Road. In cross-examination by Mr Conomos he testified that the distance from where the police car had been stationed to where the defendant's vehicle had been stopped could have been more than five to six kilometres. He had a conversation with the defendant which was recorded on the police in-car video (ICV) system. After the defendant was cautioned, the conversation included the following exchanges: "Police: Well checked your speed through the school zone outside Luddenham Primary School. Defendant: I slowed down near there. Police: 61 km/h through the school zone and that's why I'm here. Defendant: Mate if I was one kilometre over when I saw down there it was 60..I was going on 60..If I went a kilometre over it would have been an accident. Police: Well the school zone limit is 40 not 60. Defendant: Yeah well mate you know when I got really close to the school zone I wasn't doing 60 I couldn't have been. Police: You were doing 61 through the school zone that's why I stopped you. Defendant: Mate I don't think I was honestly. Police: You just told me you were. ………….. Defendant: I tell you what I got one point you know I'm on a lone point the NRMA sent out I mean the RTA please mate don't Police: What are you doing 61 in a school zone for? Defendant Mate I swear to God I didn't notice it look I've been up since 3 o'clock this morning…I wasn't doing it on purpose I swear to God. Police: The last person booked for speeding probably wasn't doing it on purpose but the fact is that you run over a child at that speed specially in one of those things you're going to kill them. Defendant: Mate…look if I lose a point now I swear to God its my bread and butter…I don't think I was going fast. Police: Its on the lidar if you want to have a look at it…it's on the instrument speed measuring if you want to have a look at it. …………….. Defendant: I don't know whether I was doing that much. Police: it's on the lidar if you want to have a look at it, its up to you. The first thing you said to me was, the first thing you said to me was you saw the sign was 60 that's what you said to me and I may have been doing one over the speed limit, you just said to me. Defendant: I'll tell you what, look this one here the what you call's stuffed on it. Police: So you tell me the speedo's incorrect now. Defendant: The speedo's stuffed on it, its not working at all there's something wrong with it. Police: How long's it been like that for? ………………. Defendant: About 3 days……..I've been working and I haven't had a chance to go down and fix it." 13 The defendant was given a traffic infringement notice for the offence 'Exceed Speed Limit' by the police officer. The police officer stated that he returned to Fairfield Police Station at about 6pm and again checked the LIDAR which he found to be operating correctly. 14 In cross-examination, Mr Conomos put to Senior Constable Faul that the defendant's vehicle did not exceed 40 km/h during the school zone which he rejected. 15 The prosecution tendered two speed measuring device certificates pursuant to s 46 Road Transport (Safety and Management) Act. A DVD of the in-car video was played before the magistrate. The transcript, however, does not disclose the extent to which it was played. 16 The defendant in his evidence denied he was exceeding 40 km/h through the school zone. He said that he put the truck into second gear and knew that the loaded truck "[did] not do more than 40 km/h in second gear." His speedometer was not working. He had had 30 years experience as a driver. The defendant said that he had travelled along the road previously and knew of the school zone. 17 Rose Harvey, the defendant's partner, gave evidence that she was travelling in her own vehicle behind the defendant's truck along the Old Northern Road. As they approached the school zone, there were, she said, about two car lengths between the two vehicles. When she approached the school zone, she looked at her speed and thought "I've got to drop down" which she did. The distance between the vehicles did not increase after she decreased her speed. The speed of her vehicle was 40 km/h through the school zone as was the speed of the defendant's truck. She had previously travelled along the road. 18 There was no prosecution case in reply. The prosecutor addressed the court at the conclusion of the evidence whereas the defendant's counsel declined the opportunity to make a closing address. The magistrate's decision 19 The magistrate delivered an ex tempore judgment in what was plainly a busy list at Mt Druitt Local Court. It is well established that ex tempore reasons of magistrates are not to be finely picked over and appropriate allowance should be made for the pressures under which judicial officers of the Local Court work. As Kirby P said in Acuthan v Coates (1986) 6 NSWLR 472 at 479: "It is the substance of what the magistrate said and did that the court is concerned with." 20 Her Honour noted that the prosecution bore the onus of proof beyond reasonable doubt. Her Honour referred to s 46(1) Road Transport (Safety and Traffic Management) Act and found that the certificates complied with the regulations. She cited s 46(2) and then referred to the ICV that was played. Her Honour noted that the time on the video did not show the defendant's truck passing until one minute past three and twenty seven seconds. The magistrate then said: "Therefore on the prosecution's own evidence some doubt has been raised in my mind as to the accuracy at the time of the alleged offences given that the offence is alleged to have occurred at 2.58 . One of them must be wrong. In relation to that I would have thought it is fairly crucial given that there are a number of other cars passing and the defendant cannot have been doing in excess of the speed limit at 2.58 when the police in-car video only has him arriving at the school zone at one minute past three and twenty-seven seconds dated on the screen to be 15.01.27 seconds. I note that in the police statement it is dated that on the morning after there was a test done as to whether it was operating correctly but I have no details as to what was actually done and what was actually checked. In relation to the matter I note the police officer does pursue the defendant, I accept the evidence of the defence and also his partner that they were unable to hear the siren. The only siren I heard was the odd beep after some lengthy viewing before the vehicle is ultimately stopped, therefore I accept the defence evidence that he did not think the siren was for him. The defendant would be unable to truly say what speed he was doing given, on his admission, his speedometer is not working. I take judicial notice of the fact that in second gear in the average car as I drive a manual myself one cannot generally get to the limit of sixty kilometres per hour, but having said that even in this matter where the officer says he has to pursue Mr Gramelis to pull him over and he gives him indeed a lengthy lecture about the effects of speeding in a school zone et cetera yet does not charge him with the twenty-one kilometres over the speed zone which he claims to have done but ten kilometres. There is a couple of rather odd things that have been unexplained in the prosecution evidence. My main concern is the time that the offence is alleged to have occurred which does not match on the prosecution's own evidence. I believe therefore this is evidence that would raise doubts in my mind as to whether the device was accurate with respect to the time. I have nothing before me to suggest that this was ever checked and accordingly given the then balanced version of events and I note that there is no evidence by the officer in relation to him then checking the time on his own speedometer. I have sufficient doubt and on the basis I DISMISS THE MATTER." (italics added) Ground 1 : Failing to have regard to sections 16 and 21 of the Criminal Procedure Act 1986 21 The plaintiff submitted that it was implicit from the magistrate's reasons that the difference in time between the evidence of the police officer and the ICV was a significant factor in her determination to dismiss the charge. Although the magistrate does not appear to have specifically found that the CAN was defective and dismissed the charge on that basis, the plaintiff contended, that this was the basis upon which her Honour proceeded. The plaintiff put to me that the magistrate erred by not having regard to ss 16 and 21 Criminal Procedure Act. The plaintiff argued that had the matter been raised as an issue by the magistrate, it would have been open to the prosecutor to apply to amend the particular in the CAN so as to read "about 2.58pm". The plaintiff said that the magistrate had failed to exercise her jurisdiction properly by failing to offer the prosecution an opportunity to amend the CAN. 22 The defendant contended that her Honour neither expressly nor impliedly found that the CAN was defective. Rather, her Honour had found that there was an inconsistency between the police officer's evidence and the time displayed on the ICV. Her Honour was entitled, the defendant argued, to have regard to this discrepancy as to time in determining whether the offence had been established beyond reasonable doubt. The magistrate was not obliged to raise the inconsistency with the prosecutor as it arose from conflicts within the prosecution case and not as a result of any defect in the CAN. 23 The evidence in the Local Court as to the time of the offence was confined to Senior Constable Faul's testimony that he had observed the truck at "about 2.58pm" and the time display on the ICV which the magistrate observed did not show the truck "passing by until one minute past three and twenty seven seconds." The particulars in the CAN recorded the time of the offence as "0.2.58pm". 24 There can be no error of law if the difference between the police officer's evidence as to time and the time displayed on the ICV was a matter that the magistrate took into account in assessing the honesty and reliability of the police officer's evidence. I do not think, however, that was the substance of what the magistrate said. Her Honour's references to "2.58" which have been italicised in the part of the judgment quoted at [20] above suggest that her focus was on the time of the offence as particularised in the CAN and not upon Senior Constable Faul's evidence. 25 Section 16(1) Criminal Procedure Act relevantly provides: (I) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds: ... (g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly." 26 Section 21(1) Criminal Procedure Act is as follows: "If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case." 27 There was no issue before the magistrate as to the time the offence was alleged to have occurred. The police officer's evidence as to time was not challenged by Mr Conomos. Unsurprisingly, the defendant's counsel did not raise any discrepancy between the time displayed on the ICV and what had been stated by Senior Constable Faul. It was his evidence that the vehicle had been first seen at "about 2.58." This was not an inconsistency which arose within the prosecution case. It is evident, however, that the time of the offence was in her Honour's mind a consideration of some significance. Her Honour said: "My main concern is the time that the offence is alleged to have occurred which does not match on the prosecution's own evidence." 28 As the issue had neither been raised in cross-examination nor in submissions by the defendant, the magistrate was obliged as a matter of procedural fairness to raise her concern with the parties before delivering judgment: O'Neil-Shaw v The Queen [2010] NSWCCA at [27]. Identification by the magistrate of the matter that she considered to be an issue, would have enabled the prosecutor to ask for leave to recall Senior Constable Faul so that he could respond to what may have been thought to be an inconsistency and, if considered necessary, to apply to amend the CAN to include the word "about" in the particular as to time. This was not a case where time was of the essence: see for example DPP (NSW) v Knight (2006) 162 A Crim R 555. The CAN could have been amended without injustice to the defendant. 29 The judicial imperative of ensuring a fair hearing is not confined to the defendant's case: DPP v Yeo and Anor [2008] NSWSC 953. The adversarial nature of the proceedings did not relieve the magistrate of the responsibility of according procedural fairness to both parties. In my respectful opinion, her Honour failed to ensure a fair hearing by failing to raise her concern as to time with the prosecutor. 30 I find the first ground of appeal to be established. Ground 2: Failure to have proper regard to Rule 20 Road Rules 2008 and section 72A and Schedule 1 Road Transport (Safety and Traffic Management) Act 1999. 31 As to the second ground of appeal, the plaintiff argued that the magistrate erred in taking into account or having regard to the fact that the defendant was not charged with "twenty-one kilometres over the speed zone" in dismissing the charge. The prosecution had adduced evidence, the plaintiff contended, which supported each element of the offence and all that was required was proof that the defendant had exceeded the speed limit of 40 km/h. 32 I am not persuaded that the magistrate erred in law by the reference in her judgment to the police officer not charging the defendant with being twenty one kilometres over the speed limit. This is, it seems to me, a matter of fact which her Honour took into account when considering the competing cases as to the speed at which the defendant's vehicle was travelling through the school zone. This ground of appeal has not been established. Ground 3 : Failure to have proper regard to section 46(2) of the Road Transport (Safety and Traffic Management) Act 1999 33 The plaintiff submitted that the magistrate erred by going behind the s 46 certificates to find that the speed measuring device was not operating properly. The purported basis upon which this was done was said to be the time displayed on the ICV which was inconsistent with the evidence of the police officer as to the time the defendant's vehicle passed through the school zone. The plaintiff argued that any difference between the time recorded on the ICV and the approximate time given by the police officer, was not a matter that could affect the accuracy of the speed measuring device which was an independent and unrelated piece of equipment from the ICV. The s 47 certificates established that the speed measuring device was accurate and operating properly before and after the offence. 34 The defendant contended that the question of whether the time recorded on the ICV can affect the accuracy of the speed measuring device and whether the two devices are independent and unrelated are matters of fact and not questions of law. Her Honour, the defendant put to me, was not satisfied on the evidence that the appropriate testing procedures and checks had been carried out which were matters relating to the device. The defendant argued that the magistrate was entitled to have regard to the police officer's evidence that the LIDAR was checked by him twice on the day in question as sufficient to raise a doubt as to the accuracy of the LIDAR and then to accept the evidence of the defendant and his partner. 35 There appears to have been a deal of confusion in her Honour's mind when she came to consider the accuracy of the speed measuring device (LIDAR). In her judgment her Honour referred to the tender of the s 46 certificates for the testing of the LIDAR "device". Her Honour observed that s 46 Road Transport (Safety and Traffic Management Act) "deals with the speed measurement devices certificates that have been tendered" and quoted ss 46(1)-(2) of the Act. She noted that "a DVD footage of the in-car video" had been tendered. Having subsequently stated that her main concern was that the alleged time of the offence occurred did not match the prosecution evidence, the magistrate said: "I believe therefore this is evidence that would raise doubts in my mind as to whether the device was accurate with respect to the time. I have nothing before me to suggest that this was ever checked." And further: "…I note that there is no evidence by the officer in relation to him then checking the time on his speedometer." 36 It seems that by the use of the term "device", the magistrate was referring to the speed measuring device (LIDAR). Quite frankly, I am unable to comprehend what her Honour meant in noting a lack of evidence by the police officer "checking the time on his speedometer." 37 Section 46(2) Road Transport (Safety and Traffic Management) Act is as follows: "If any such certificate is tendered in proceedings for the offence, evidence: (a) of the accuracy or reliability of the approved speed measuring device, or (b) as to whether or not the device operated properly or operates properly (generally or at a particular time or date during a particular period), is not required in those proceedings unless evidence sufficient to raise doubt that, at the time of the alleged offence, the device was accurate, reliable and operating properly is adduced." 38 There were two certificates before her Honour which certified that the LIDAR that was used by the police officer was an approved speed measuring device and on the days that the device had been tested it was accurate and operating properly. The first certificate specified a date of 12 February 2009 which was before the alleged time of the offence. The provisions of s 46 Road Transport (Safety and Traffic Management) Act applied to the proceedings by force of s 47(2)(a). This was prima facie evidence that the LIDAR was accurate and operating properly on that date. Section 46(2) of the Act gives statutory force to the presumption of continuance: RTA v Field [2005] NSWSC 606 per Kirby J at [18] and further evidence of accuracy or reliability was not required. The second certificate, admitted into evidence without objection, specified that the LIDAR was accurate and operating properly on 26 August 2009 – a date after the alleged offence. The only finding available to the magistrate was that the LIDAR was operating accurately unless evidence sufficient to raise doubt as to its accuracy at the time of the offence was adduced. 39 There was no evidence that the speed measuring device recorded time. In any event, a discrepancy between the police officer's evidence and the time displayed on the in-car video could not impact upon the accuracy and reliability of the speed measuring device. As was said by Spigelman CJ in RTA (NSW) v Baldock [2007] NSWCCA 35 at [49]: "In my opinion, 'evidence that the device was not accurate or not reliable', within the meaning of s46(2) must be evidence relating to the device as such, not to the product of the application of the device in the form of one or more measurements of speed." 40 Her Honour's doubts as to whether the speed measuring device was accurate as to time were unfortunately the product of misunderstanding and a totally irrelevant consideration. 41 The defendant's argument that the magistrate was entitled to have regard to the police officer's evidence that the LIDAR was checked by him twice on the day of the alleged offence as sufficient to raise a doubt as to the accuracy of the device has no merit. This submission appears to be founded on the magistrate's remarks that "there was a test done as to whether it was operating correctly but I have no details as to what was actually done and what was actually checked." Senior Constable Faul's evidence was that he checked the LIDAR at 7am and 6pm and found on each occasion that it was operating accurately. His evidence as to the testing and accuracy of the device was not challenged by the defendant's counsel. The police officer's testing of the LIDAR before and after the alleged offence strengthened the evidence before the magistrate of the accuracy and reliability of the speed measuring device and could not sensibly be considered as raising a doubt as to its accuracy or reliability. 42 All of these matters reveal error of law. This ground of appeal has been established. Ground 4: Failure to have proper regard to section 73A of the Road Transport (Safety and Traffic Management) Act. 43 The fourth ground of appeal closely relates to the third ground. The plaintiff complains that the magistrate did not raise the accuracy of the speed measuring device with the parties and failed to have regard to s 73A Road Transport (Safety and Traffic Management) Act. The defendant submitted that Senior Constable Faul had the requisite specialised knowledge to give evidence to rebut the accuracy of the LIDAR. 44 Section 73A(2) Road Transport (Safety and Traffic Management) Act relevantly provides: "An assertion that contradicts or challenges: (a) the accuracy or reliability, or the correct or proper operation, of an approved device, … is capable of being sufficient, in proceedings to which this section applies, to rebut such evidence or such a presumption, or to raise such doubt, only if it is evidence adduced from a person who has relevant specialised knowledge (based wholly or substantially on the person's training, study or experience). 45 As has been observed at [41] above, Senior Constable Faul's testimony did not detract from but added to the evidence of the accuracy of the speed measuring device. The defendant did not dispute in the Local Court that the LIDAR was operating accurately and did not adduce any evidence from a witness who had the relevant specialised knowledge. Her Honour was obliged as a matter of procedural fairness to raise any concern about the accuracy of the speed measuring device with the parties. It is regrettable that her Honour did not do so as her misunderstanding in all likelihood would have been promptly eliminated if she had discussed the matter with the parties. Ground 4 has been established. Ground 5 : Failure to properly apply s 144 Evidence Act 1995 . 46 The defendant testified that his truck was in second gear and he knew that the loaded truck "[did] not do more than 40 km/h in second gear." The magistrate found that the defendant would be unable "to truly say what speed he was doing" as his speedometer was not working. Her Honour went on to say: "I take judicial notice of the fact that in second gear in the average car as I drive a manual one myself one cannot generally get to the limit of sixty kilometres per hour." 47 Somewhat surprisingly, the plaintiff does not complain that the magistrate's reliance upon her own knowledge of second gear speeds is not knowledge which is not reasonably open to question and is not common knowledge either generally or in the locality in which the proceedings were being held: s 144(1)(a) Evidence Act. The complaint is confined to the failure by the magistrate to comply with the procedural requirements of s 144(4). 48 The defendant contended that the magistrate was attempting to resolve an issue that was put to her by the prosecutor in his closing address. What was said by her Honour, the defendant argued, was no more than a passing comment in evaluating the defendant's evidence. The defendant submitted that in any event the prosecution had not been prejudiced. 49 Section 144 Evidence Act provides: "(1) Proof is not required about knowledge that is not reasonably open to question and is: (a) common knowledge in the locality in which the proceeding is being held or generally; or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. (2) The judge may acquire knowledge of that kind in any way the judge thinks fit. (3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account. (4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced." 50 The prosecutor pointed out in his closing address that there was "no expert evidence about the speed [the defendant's] truck can do in second gear." At no time in her judgment did her Honour state that she accepted the defendant's evidence as to the speed he was travelling or the evidence of Ms Harvey. Her Honour did not reject the police officer's evidence. It seems, however, that the magistrate used her knowledge of driving manual cars to provide some support for the defendant's evidence and that knowledge was a factor in the ultimate decision that the charge had not been proved to the requisite standard. This was more than a passing reference by the magistrate. 51 The requirements of s 144(4) are directed at ensuring that the parties are accorded procedural fairness where matters of common knowledge are to be acquired or taken into account. A judicial officer is obliged to give a party such opportunity to make submissions and to refer to relevant information as is necessary to ensure that the party is not unfairly prejudiced. Her Honour was required to raise with the prosecutor her intention to take judicial notice. Should she have done so, the prosecutor might have submitted that it would be inappropriate to take "judicial notice" of the speed of "average cars" travelling in second gear on the question of whether the defendant's Isuzu truck was able to reach a speed in excess of 40 km/h on The Northern Road Luddenham under the prevailing conditions. The prosecutor might also have sought an adjournment to enable consideration to be given to calling expert evidence. 52 By failing to comply with the requirements of s 144(4), the magistrate did not accord procedural fairness to the prosecution and erred in law. The fifth ground of appeal has been established. Notice of contention 53 The defendant contended that in addition to the reasons given by the magistrate for dismissing the charge, the charge should have been dismissed as the prosecution had not proved beyond reasonable doubt that the defendant had exceeded 40 km/h in the school zone. The defendant submitted that no evidence was adduced by the prosecution as to where precisely the school zone started and ended, as to how much ground the defendant's vehicle had covered whilst Senior Constable Faul was carrying out the speed check, as to how long it took for the LIDAR to lock on to the vehicle's speed and whether the vehicle was still within the school zone at the time the LIDAR locked on to its speed. In the absence of such evidence, the defendant contended that the prosecution case could not have succeeded in any event. 54 It is true that no evidence was adduced by the prosecution as to precisely where the school zone started and ended. There was, however, no dispute that the area in which the police officer had stationed himself was a school zone. The defendant's contention appears to arise from a misunderstanding of what was said by Senior Constable Faul in answer to the following questions by the prosecutor: "Q. …are you able to indicate how far into the school zone the defendant was where (sic) you detected him speeding? A. Yeah he was about 50 metres in. Well I saw him – as soon as he entered the school zone I saw him. Q. Yep that's when you first… A. Yep. Q. – saw him and then how far into the school zone was he when you locked the speed? A. He was around about a hundred metres through the school zone. Q. A hundred metres? A. Yep." 55 The defendant, in submissions, referred to this evidence and to par 5 of the police officer's statement where he stated that "[he] carried out a speed check of not less than 3 seconds." It was submitted that by this stage the defendant was already about 100 metres into the school zone. 56 The question that the police officer was asked was how far into the school zone was the defendant's vehicle when he locked not checked the speed. Senior Constable Faul's response was that the defendant was around a hundred metres through the school zone. It is evident from the police officer's statement and oral evidence that he carried out a speed check of not less than 3 seconds during which he saw the vehicle's speed increase from 61 km/h to 62 km/h. He then released the trigger on the LIDAR locking the speed at 62 km/h at which time the vehicle was about hundred metres into the school zone. 57 In addition to Senior Constable Faul's testimony, the in-car video system was played to her Honour and the conversations between the defendant and the police officer were in evidence. There was ample evidence available to satisfy the magistrate to the requisite standard that the charge had been established. 58 A submission was made that even if this Court finds that there have been errors of law, the Court has an overriding discretion to refuse relief and not to remit the matter to the Local Court. No authority was cited for this submission other than the observation by Rothman J in RTA v Bourke [2010] NSWSC 559 at [28] that "it may be that the Court has such a discretion, but if it does, I am not minded to exercise it." 59 In Director of Public Prosecutions v Wunderwald [2004] NSWSC 182, Sully J at [36] was not persuaded that the words "may determine" which appear in s 59(2) Crimes (Appeal and Review) Act confer such an overriding discretion. I am likewise not persuaded that the Court has such a discretion. In any event, it would not have been exercised by me in the defendant's favour. 60 For the foregoing reasons, I make the following orders: (i) The appeal is allowed; (ii) The decision of the magistrate made at Mt Druitt Local Court on 14 December 2009 to dismiss the Court Attendance Notice issued to the defendant, be set aside; (iii) The matter be remitted to the Mt Druitt Local Court to be dealt with according to law. (iv) The defendant is to pay the plaintiff's costs. (v) The defendant is to have an indemnity certificate in respect of the appeal pursuant to s 6 Suitors' Fund Act 1951. ********** 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. 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