RTA v ADDARIO [2011] NSWSC 1285

Supreme Court New South Wales

Medium Neutral Citation: RTA v ADDARIO [2011] NSWSC 1285 Hearing dates: 25 May 2011 Decision date: 21 December 2011 Jurisdiction: Common Law Before: RS Hulme J Decision: The Summons is dismissed. The Plaintiff is to pay the Defendant's costs. Catchwords: STATUTES - interpretation "assertion" Legislation Cited: Evidence Act 1995, s.69, s.147 Road Transport Legislation Amendment (Evidence) Act 2006 Road Transport (Safety and Traffic Management) Act 1999 Cases Cited: Roads & Traffic Authority of New South Wales v Baldock [2007] NSWCCA 35; (2007) 168 A Crim R 566 Norvill v Stokes [2006] NSWLEC 622 Category: Principal judgment Parties: Gian Franco ADDARIO The Roads and Traffic Authority Representation: P: T Lynch D: P Hamill SC P: Hunt & Hunt D: Maurice Marshan File Number(s): 2011/24819

Judgment 1In these proceedings the Roads and Traffic Authority (hereinafter referred to as "RTA") challenges a decision of Magistrate O'Sullivan to dismiss a charge of exceeding the speed limit, an offence said to have occurred on 14 December 2009. Particulars of the offence alleged were exceeding the speed limit by travelling at 50 kilometres per hour at 9:16:11 am in a school zone on the Hume Highway at Ashfield. 2The evidence adduced by the RTA in the Local Court consisted of a statement by an RTA officer, Ms McKelvey to the effect that an approved speed measuring device and, interfaced with it, an approved digital camera recording device was installed with the relevant approvals at the location where the Defendant was said to have offended and that a photograph of vehicle WWX 394 had been taken by that camera recording device, certificates under s 46(1) and s 47(5) of the Road Transport (Safety and Traffic Management) Act 1999, some further certificates that it is unnecessary to detail, and a certificate under s 230 of the Road Transport (General) Act indicating that the Defendant was the registered operator of the vehicle with plate number WWX 394. 3There were three photographs, at least one of which shows clearly the number plate WWX 394. Two included the following notations:- Speed limited: 40km/h vehicle speed: 50km/h lane: 3 REDFLEX Monday 14 December 2009 09:16:11 4The third bore an identical notation except that the time was stated to be 09:16:12. 5The Defendant gave evidence to the effect that on the relevant morning he was driving to a train station, that some 200 metres from the camera was a service station, that he entered the service station and stopped there for a period. He said that he filled his car with petrol, receiving two dockets, one when he started and one when he paid for the petrol. The dockets were tendered. Both are obviously machine generated and bear the heading "Mobil". One is described on its face as a tax invoice. The purpose of the second is not clear although both contain provision for signature, both bear the date 14/12/09 and refer to a sum of $27. Disregarding seconds, one bears a time notation 09:23 and the other bears a time notation 09:15. 6The Defendant's evidence included the following:- Q. After receiving that docket did you also put some air in the tyres and some water - - A. WITNESS: Yeah I move the car and I go to check the air in my - - GILL (for the informant): Objection... Q. Anyway you did that? A. WITNESS: Yeah. 7The significance of this evidence is that the area where the Defendant was photographed was a school zone where the 40 kilometres an hour limit ceased to apply at 9.30 am. The speed at which he was recorded driving did not constitute an offence after that time. 8A number of objections were made to the admissibility of the evidence adduced on the Defendant's behalf. The primary one was that s 73A of the Road Transport (Safety and Traffic Management) Act precluded it being admitted or relied on. 9Although originally only admitting the dockets provisionally, the magistrate eventually relied on them and said that despite the terms of some of the sections of the relevant Act, there was an onus on the prosecution to prove the commission of the offence beyond reasonable doubt. The prosecution indicated that it did not seek an adjournment and the magistrate went on to dismiss the charge. 10I set out below the relevant provisions of the Road Transport (Safety and Traffic Management) Act 1999. Because the RTA much relied on a decision of the Court of Criminal Appeal in Roads & Traffic Authority of New South Wales v Baldock [2007] NSWCCA 35; (2007) 168 A Crim R 566 where the Court construed an earlier version of some of the principal provisions currently relevant, in the case of those provisions I have set out the 2 versions side by side (also introducing some blank lines to further ease comparison):- 44(1) In this Act an " approved speed measuring device " is a device of a type approved by the Governor... as being designed to measure the speed at which a vehicle is travelling. 45(1) In this Act an " approved camera recording device " is a device of a type approved ... as being designed for attachment to an approved speed measuring device for the purpose of taking photographs of vehicles being driven in excess of speed limits and for recording on any such photograph: (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) ... Current Version Previous Version 46(1) In proceedings for an offence against this Act 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:- 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 (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 (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, (c) on that day the device was accurate and operating properly, is admissible and is prima facie evidence of the particulars certified in and by the certificate. 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: 46(2) If any such certificate is tendered in proceedings for an offence, evidence (a) of the accuracy or reliability of the approved speed measuring device, or of the accuracy or reliability of the approved speed measuring device is not required in those proceedings (b) as to whether or not the device operated properly or operates properly (generally or at a particular time or date or during a particular period), unless evidence that the device was not accurate or not reliable has been adduced. 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. 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. 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. 47(2) In proceedings in which such evidence is given:- 47(2) In proceedings in which such evidence is given: (a) the provisions of s 46 relating to the accuracy or reliability of the approved speed measuring device apply, and (a) the provisions of section 46 relating to the accuracy or reliability of the approved speed measuring device apply, and (b) subsections (3)-(7) apply in relation to the approved camera recording device, 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 (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 prima facie evidence that the photograph has not been altered since it was taken. is evidence (unless evidence to the contrary is adduced) that the photograph has not been altered since it was taken. 47(3) A photograph tendered in evidence as a photograph taken by an approved camera recording device on a day and at a location specified on the photograph, and as bearing a security indicator of a kind prescribed by the regulations, is admissible and: 47(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 presumed to have been so taken unless evidence sufficient to raise doubt that it was so taken is adduced, and (a) is to be accepted as having been so taken (unless evidence to the contrary is adduced), and (b) is to be presumed to bear such a security indicator unless evidence that is sufficient to raise doubt that it does so is adduced, and (b) is evidence (unless evidence to the contrary is adduced) of the matters shown or recorded on the photograph. (c) is prima facie evidence of the matters shown or recorded on the photograph. 47(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 the certificate is admissible and is prima facie evidence of those particulars:- 47(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, (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, (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. (c) that on that inspection the approved digital camera recording device was found to be operating correctly.