Supreme Court New South Wales Medium Neutral Citation: Roads & Maritime Services v Noble-Hiblen [2019] NSWSC 1230 Hearing dates: 17 September 2019 Date of orders: 18 September 2019 Decision date: 18 September 2019 Jurisdiction: Common Law Before: Campbell J Decision: 1) Appeal allowed; 2) Set aside the order made in the Local Court on 22 May 2019 dismissing the prosecution; 3) Remit the matter to the Local Court for re-determination in accordance with my reasons; 4) No order as to costs. Catchwords: APPEALS – Supreme Court Appeals – appeals as of right – Roads & Maritime Services – appeal against order made by Local Court dismissing matter – appeal limited to matters involving questions of law alone – whether certain non-expert evidence is sufficient entitling an acquittal – held only expert evidence is sufficient to raise doubt. Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 56 Road Transport Act 2013 (NSW), ss 134, 135, 136, 138, 140, 141, 257 Evidence Act 1995 (NSW), s 79 Workers Compensation Act 1926 (NSW) (Repealed), s 37(4)(a) Supreme Court Rules 1970 (NSW), Part 51B Rule (6)(2)(b) Road Transport (Safety and Traffic Management) Act 1999 (NSW) (Repealed) Cases Cited: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 Roads and Traffic Authority of New South Wales v Nichols [2005] NSWSC 946; 45 MVR 14 Roads and Traffic Authority of New South Wales v Michell [2006] NSWSC 194; 45 MVR 162 Roads and Traffic Authority of New South Wales v Baldock [2007] NSWCCA 35; 168 A Crim R 566 Texts Cited: NSW Legislative Council Hansard and Papers Tuesday 21 November 2006. Category: Principal judgment Parties: Roads and Maritime Services Representation: Counsel: Mr BK Hearnden, solicitor (plaintiff) Solicitors: Hunt & Hunt Lawyers (Plaintiff) Defendant, self-represented and submitting appearance filed File Number(s): 2019/20993 Decision under appeal Court or tribunal: Local Court Date of Decision: 22 May 2019 Before: Magistrate Denes File Number(s): 9628151 Judgment 1. Roads & Maritime Services ("RMS") appeals as of right under s 56(1)(c) Crimes (Appeal and Review) Act 2001 (NSW) from the order made in the Local Court by her Honour Magistrate Denes dismissing this matter after the hearing of summary proceedings on 22 May 2019. The appeal, which by force of s 56 is limited to matters involving questions of law alone, was instituted by summons filed on 28 June 2019. 2. By Part 51B Rule 6 Supreme Court Rules 1970 (NSW), an appeal must be instituted within 28 days after the date on which the decision of the Court below is given. However, by Part 51B Rule 6(2)(b) that time, in respect of the decision of a Magistrate, may be extended by the Local Court on application made within the time fixed by sub-rule (1) for instituting the appeal. In the instant case, Magistrate Denes by order made on 19 June 2019, the last day for instituting the appeal, extended the time to either 21 days after provision of the tape/transcript of the proceedings or 30 August 2019, I infer, whichever is the earlier. I am satisfied that the appeal has been instituted within time. 3. The defendant, Mr. Noble-Hiblen, who was self-represented below, has filed a submitting appearance, save as to costs. The alleged offence 1. By Court Attendance Notice issued out of the Local Court on 17 January 2019, Mr Noble-Hiblen was required to answer the charge of exceeding the speed limit by more than 45 kilometres per hour on 17 October 2018 at 2:50 pm in O'Connell Street, Parramatta. The short particulars of the offence were given in the following terms: This camera recorded offence was detected by an appropriate approved traffic enforcement device (within the meaning of the Road Transport Act 2013). Speed travelled km/h: 118 km/h; speed limit km/h: 60 km/h; direction of travel: away from camera; cross street: Argyle Street; Vehicle Registration: XXX 111. 1. Mr Noble-Hiblen entered a plea of not guilty and the matter was set down for hearing at Parramatta Local Court before Magistrate Denes on 22 May 2019. Applicable statutory provisions 1. Unless otherwise specified all references to statute in this judgment are references to the Road Transport Act 2013 (NSW). The camera by which the alleged offending was detected was an approved traffic enforcement device for the purpose of the Act because it was approved for speed measurement under s 134(1)(a); see also s 135(2)(c). Section 136 provides as follows: Evidence may be given in proceedings for a speeding offence of a measurement of speed obtained and recorded by an approved traffic enforcement device that is approved for speed measurement. And s 137: In proceedings for a speeding offence in which evidence is given of a measurement of speed obtained from an approved traffic enforcement device that is approved for speed measurement, a certificate purporting to be signed by an appropriate inspection officer for the device certifying the following matters is admissible and is prima facie evidence of those matters: (a) that the device is an approved traffic enforcement device that is approved for speed measurement, (b) that on a day specified in the certificate (being within the period prescribed by the statutory rules before the alleged time of the offence) the device was tested in accordance with the statutory rules and sealed by an appropriate inspection officer for the device, (c) that on that day the device was accurate and operating properly. 1. So far as is material, s 138 of the Act makes the following provision: (1) In proceedings for a detectable traffic offence, any one or more photographs that are tendered in evidence on any of the following bases are admissible in the proceedings: …. (b) in the case of proceedings for a speeding offence in which evidence of an average speed is not relied on—a photograph that is tendered as: (i) being taken by an approved traffic enforcement device that is approved for excess speed imaging on a day and at a location specified on the photograph, and (ii) if the photograph is taken by a digital camera device—bearing a security indicator of a kind prescribed by the statutory rules, …. (2) If one or more photographs are tendered in evidence as referred to in subsection (1), a certificate purporting to be signed by an appropriate inspection officer in relation to the approved traffic enforcement device concerned that certifies the following matters is also to be tendered in evidence: (a) that the person is an appropriate inspection officer in relation to the device, (b) that on a day and at a time specified in the certificate (being within the period prescribed by the statutory rules, whether for a specified kind of device or generally, before the time recorded on the photograph or the earliest photograph as the time at which that photograph was taken), the person carried out the inspection specified in the certificate on the approved traffic enforcement device by means of which the photograph was taken, (c) that on that inspection the device was found to be operating correctly. … (4) If a photograph is tendered in evidence in proceedings for a speeding offence involving a vehicle in which evidence of an average speed is not relied on, a certificate referred to in section 137 concerning the accuracy and reliability of the device used to measure the speed at which the vehicle was travelling must also be tendered along with the certificate required by subsection (2) in relation to the camera device that took the photograph. (5) A photograph tendered in evidence as referred to in subsection (1): (a) is to be presumed to have been taken by the approved traffic enforcement device concerned unless evidence sufficient to raise doubt that it was so taken is adduced, and (b) if it is tendered on the basis that it bears a security indicator—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 (c) is prima facie evidence of the matters shown or recorded on the photograph. (6) Evidence that a photograph tendered in evidence as referred to in subsection (1) bears a security indicator of a kind prescribed by the statutory rules is prima facie evidence that the photograph has not been altered since it was taken. Section 140 is in the following terms: If a Certificate under this Division is tendered in proceedings for a detectable traffic offence, evidence: (a) of the accuracy or reliability of the approved traffic enforcement device concerned, or (b) as to whether or not the device operated correctly or operates correctly (generally or at a particular time or date or 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 correctly is adduced. And s 141: (1) This section applies to the determination of whether evidence is sufficient to rebut prima facie evidence or a presumption, or to raise doubt about a matter, as referred to in section 137, 137A, 138, 140 or 164 and for the purposes of proceedings to which those sections apply. (2) An assertion that contradicts or challenges: (a) the accuracy or reliability, or the correct or proper operation, of an approved traffic enforcement device; or (b) the accuracy or reliability of information (including a photograph) derived from such a 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). The hearing before Magistrate Denes 1. The evidence for the prosecution at the hearing before the learned Magistrate was entirely documentary. It consisted of: three photographs admitted under ss 136 and 138, which recorded the information required by s 134(2)(a), (b), (c), (d); a Certificate signed by an appropriate inspection officer under s 138(2); a Certificate under s 257 identifying Mr Noble-Hiblen as the registered operator of the vehicle; and a second Certificate under s 257 of the Act providing the particulars of Mr Noble-Hiblen's driver's licence. 2. Mr Noble-Hiblen gave evidence in his own case. From his evidence, it is clear that he questioned the reliability and accuracy of the speed recorded by the approved traffic enforcement device ("the device concerned"). Mr Noble-Hiblen's evidence was that the comparison of the time shown on, first, the photograph of his car entering the intersection and, secondly, the photograph of his car leaving the intersection demonstrated that he crossed between those two points in .68 (actually .698) of a second. He claimed to have a "satellite image here" (Court Book p 14) demonstrating the distance. When objection was taken to this material, he said he had taken "a laser measure and measured the intersection" at 12 metres. From this data he said his speed could not have exceeded 61 km/h. In cross-examination he gave the following evidence (CB 16): (Prosecutor) In your review to the RMS you mentioned that the camera may be faulty or was faulty. What do you base this observation on? (Defendant) You can't bend the laws of physics. Distance over time equals speed, but the distance and the time in these photos does not equate to the speed (alleged). So either the camera is wrong or they broke physics that day. The two… it doesn't add up, it doesn't equate. The decision of the learned magistrate 1. As Mr Noble-Hiblen was self-represented, her Honour decided not to ask either party to address. She proceeded to give her decision ex-tempore in the following terms: Mr Noble Hiblen comes before the court for a camera detected speeding offence. It is alleged that he was doing more than 45 km/h on 17th October at about 2:50 pm in Parramatta and the camera exhibit 1 shows 2 camera photographs of his car. There is no issue that it was his car he is driving and it has a speed noted as 118 km/h. Mr Noble Hiblen's defence is ultimately whilst the photographs are prima facie evidence of speed, that by physics it's just not possible and ultimately s 141 of the Road Transport Act allows for rebuttal evidence concerning operation of approved traffic enforcement devices and an assertion that contradicts the reliability of that operation in my view is capable of being sufficient to raise that reasonable doubt and you can't argue with physics. It is one of the few things you just can't do. Whilst Mr Noble Hiblen was being cross examined I actually used Google, not Google Maps or anything like that but just the calculator effectively, the time… the distance over time calculator, one would argue that an intersection is no more than 12 metres. It's around about 12 metres, maybe 14 metres but ultimately if you put in 12 metres over the .68 seconds, and he was never cross-examined about his assertion that it was .68 seconds, and it's about that if you look at the time stamped, that would have only put him at doing a speed of 63 km/h so he says he is doing less than that, he is doing around 60 km/h. That is half pretty much half what is alleged he was doing. (sic) It might be different if there was you know the camera said he was doing 70 but not half. That's just not plausible. There is something wrong with that camera. Or at least it's sufficient in my view to raise a doubt (my emphasis). Her Honour decided that the offence had not been proved and the proceedings were dismissed. The argument on appeal 1. RMS was represented on appeal by Mr BK Hearnden, solicitor. The grounds involving a question of law alone relied upon by Mr Hearnden were, first, that her Honour misdirected herself as to the meaning and application of s 140 and s 141; and, secondly, Mr Hearnden submitted that the case fell into that, perhaps "marginal", category where on the findings made by her Honour the statutory tests prescribed by s 140 and s 141 were not satisfied as a matter of law because no application of the requirements of the statute is reasonably open other than that the statutory tests can only be satisfied by adducing expert evidence. This arises particularly from the concluding words of s 141 of the Act which specify "that the only evidence capable of being sufficient" to rebut prima facie evidence, or a presumption or to raise a doubt about a matter "is evidence adduced from a person who has relevant specialised knowledge (based wholly or substantially on a person's training, study or experience". That is to say, expert evidence; and expert evidence as defined in the same language as s 79 Evidence Act 1995 (NSW). Manifestly no such evidence was adduced before the learned Magistrate. Consideration 1. I accept the grounds advanced by Mr Hearnden, if made good, involve questions of law alone. Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 concerned the scope of the right of appeal conferred by s 37(4)(a) Workers Compensation Act 1926 (NSW) (Repealed) which limited appeals to the Court of Appeal from the former Workers Compensation Commission to appeals "in point of law". While deciding that this statutory formulation excluded an appeal from even perverse findings of fact, Glass JA (with whom Samuels JA agreed; Kirby P dissenting) said (at 156 C – D): A finding of fact in the commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself i.e. has defined otherwise than in accordance with the law the question of fact which he has to answer. 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 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, Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co. v Valuer General (1940) 40 SR (NSW) 126 at 138. 1. The key provisions are s 140 and s 141, although the other provisions to which I have referred obviously provide important legislative content. I will not repeat s 140 and s 141 in full. Clearly s 140 was applicable because Certificate evidence under the relevant provisions had been tendered. In those circumstances, the prosecution was relieved of the need to lead evidence as to the accuracy or reliability of the device concerned or as to the correctness of its operation including, say, on the day of the alleged offence, "unless evidence sufficient to raise doubt that, at the time of the alleged offence, the device was accurate, reliable and operating correctly is adduced" (my emphasis). The prosecution cannot appeal by right or by leave on a ground that involves a question of fact, it follows then, if s 140 was the only issue, the evidence of Mr Noble-Hiblen, which the learned trial judge obviously accepted, might have been sufficient to raise doubt about the accuracy, reliability and correct operation of the device concerned. 2. But s 140 is not all. Section 141, as her Honour recognised, was engaged because the photographic evidence, s 137 Certificate and the s 138 Certificate provided prima facie evidence of certain matters and founded a rebuttable statutory presumption in respect of others. First, the s 137 Certificate was admissible and provided prima facie evidence, inter alia, that the device concerned was an approved traffic enforcement device that is approved for speed measurement and that on the day the device was tested it was accurate and operating properly. Under s 138, the photographs were admissible under sub-section (1), as was the s 138 Certificate under sub-section (2), provided (as occurred), the s 137 Certificate was also tendered: s 138(4). By s 138(5)(a) and (c) the photographic evidence is to be presumed to have been taken by the device concerned, unless evidence sufficient to raise doubt that it was so taken is adduced and (omitting the effect of paragraph (b)) was prima facie evidence of the matters shown or recorded on the photograph. Finally, for present purposes, as I have already said, s 140 relieves the prosecution of the obligation to lead further evidence about the accuracy, reliability or correct operation of the device concerned unless evidence sufficient to raise a doubt about those matters was adduced, logically, by the defence. 3. There was no issue below about whether the photographs had been taken by the device concerned and s 138(5)(a) can be put to one side. Had it been otherwise, s 141 would have been relevant to that question. However, s 138(5)(c) had work to do and the photographs were prima facie evidence of the matters shown or recorded on them. 4. Critically, by dint of s 141(2), an assertion (like Mr Noble-Niblen's case) that contradicts or challenges the accuracy, reliability or correct operation of the device concerned or the accuracy or the reliability of information (including a photograph) derived from it is not sufficient to rebut the s 137 prima facie evidence, the s 138(5) presumption, the s 138(5)(c) prima facie evidence or to raise the doubt about the accuracy, reliability and operation of the device referred to in s 140, unless supported by expert evidence which the magistrate actually accepts. 5. Manifestly, Mr Noble-Hiblen's own measurements and calculations were not shown to be those of an expert and did not engage s 141(2); they were not shown to have been adduced from a person who has relevant specialised knowledge. Nor was it shown that they were based wholly or substantially on any specialised knowledge he may have possessed by reason of his own training, study and experience. The learned Magistrate's own computations, by reference to Mr Noble-Hiblen's assertions, were not expert evidence as defined by s 141. 6. In short, the only evidence legally capable of being sufficient for the purpose of rebutting the prima facie evidence arising from ss 137 and 138 and the presumption arising from s 138 or raising the doubt referred to in either s 138(5)(a) or s 140 is expert evidence duly admitted in accordance with the provisions of s 79 Evidence Act. 7. Her Honour clearly, with respect, defined otherwise than in accordance with s 141 the question of fact which she had to answer by reference to s 141. She fell into legal error by the mere application of what she apparently regarded as the irreducible laws of physics. This was an error as neither Mr Noble-Hiblen's evidence nor her own computations were expert evidence. That material did not establish that "there is something wrong with that camera", as her Honour held. Nor was it legally sufficient to raise a doubt about the accuracy, reliability and correct operation of the device concerned, as her Honour found. Moreover, to put it another way, the facts as her Honour found them to be were necessarily outside the statutory description of what was sufficient to rebut prima facie evidence, the statutory presumption, or to raise a doubt about the accuracy, reliability and correct operation of the device concerned. Her Honour recognised that s 141 was in play but with respect she mistook its requirements. 8. My conclusions as to the correct interpretation of ss 140 and 141 are reinforced by Mr Hearnden's exposition of the legislative history of these provisions. The statutory predecessors to the current legislation were found in the provisions of the now repealed Road Transport (Safety and Traffic Management) Act 1999 (NSW), Part 3. I will not set them out, but as at 2006, the equivalent provisions permitting the admission into evidence of photographs produced by speed measuring and like devices and Certificates as to the accuracy and reliability of those devices, treating them as prima facie evidence, or founding statutory presumptions were generally subject to the qualification, "unless evidence to the contrary is adduced". There was then no equivalent of s 141. 9. This statutory scheme had been considered in two cases in the Common Law Division of the Supreme Court. First, by Hoeben J (as the Chief Judge then was) in Roads and Traffic Authority of New South Wales v Nichols [2005] NSWSC 946; 45 MVR 14 and, secondly, by Adams J in Roads and Traffic Authority of New South Wales v Michell [2006] NSWSC 194; 45 MVR 162. In the latter case a very flexible view had been taken of the meaning of "evidence to the contrary" and the probative value required. The matter received the attention of the Court of Criminal Appeal in Roads and Traffic Authority of New South Wales v Baldock [2007] NSWCCA 35; 168 A Crim R 566. In that case, Spigelman CJ (Bell and Howie JJ agreeing), said (at [35] – [36]): The reference to "evidence to the contrary" in s 47(3)(b) must, in my opinion, be evidence to the contrary of matter recorded on the photograph. That directs attention to the "speed as measured" not to the "speed" itself. Accordingly, I agree with the Appellant's submission that the reference to "evidence to the contrary" is directed to evidence concerning the accuracy of the record, not to the accuracy of the speed measured by the speed measuring device. In my opinion, this interpretation better serves the purpose of protecting the safety of the community by facilitating prosecutions for breach of speed limits, in the manner envisaged in the two Second Reading Speeches set out above. I can see no purpose of the statutory scheme that is served by adopting an interpretation which, to use the examples of Adams J in Michell supra, would result in a section facilitating the tender of technical evidence being displaced by evidence that is "slight or unconvincing" ([15]) or even evidence which is "disbelieved" ([16]). I agree with the observations of Kellam J in Director of Public Prosecutions v Cummings [2006] VSC 327 esp. at [35]. 1. Baldock was handed down in February 2007. Before then, in November 2006, the New South Wales Parliament had already moved to limit the type of evidence capable of being sufficient to rebut prima facie evidence, rebut the statutory presumptions or to raise a relevant doubt by enacting s 73A of the Road Transport Safety and Traffic Management Act 1999 (NSW) (Repealed). Subsections (1) and (2) of that provision are materially identical to s 141 of the present legislation. Subsection (3) was definitional only. Section 73A(2) required, like s 141(2) expert evidence in relevant rebuttal or to raise a relevant doubt. 2. In his speech on the second reading of the Road Transport Legislation Amendment (Evidence) Bill, the Minister for Roads and Minister assisting the Minister for Transport identified two major changes to be made by the amendments proposed. The first was to make certain semantic changes including introducing the expression "evidence sufficient to raise doubt". And the second was: … to require defendants who wish to challenge prosecution presented evidentiary Cs of photographs, which contain information derived from a device like a speed camera or speed measuring device, to adduce expert evidence in certain situations. The primary reason for these amendments is to protect and maintain the road safety benefit of speed cameras and other enforcement cameras such as red light cameras. 1. The Minister referred to the decision in Michell as having "caused much confusion in the community regarding the evidentiary requirements in speed camera cases before the courts". He also said: Where the matter in dispute between defendant and prosecutor in respect to determining whether the evidence is sufficient to raise doubt about a matter, or to rebut prima facie evidence or a presumption in the context of the provisions specified in the Act, the defendant must call an expert. The Bill provides that only an expert's assertion that contradicts or challenges the accuracy or reliability, or the correct or proper operation, of any of the devices to which I have referred, can be capable of being sufficient to raise doubt or to rebut such evidence or presumption upon which a prosecution initially relies. (NSW Legislative Council Hansard and Papers Tuesday 21 November 2006). 1. This legislative history provides valuable context reinforcing my view that only expert evidence is sufficient to raise a doubt for the purpose of, inter alia, s 140, by dint of s 141 and that her Honour erred by treating Mr Noble-Hiblen's evidence and her own calculations as sufficient to raise a doubt entitling Mr Noble-Hiblen to an acquittal. 2. For these reasons my orders are: 1. Appeal allowed; 2. Set aside the order made in the Local Court on 22 May 2019 dismissing the prosecution; 3. Remit the matter to the Local Court for re-determination in accordance with my reasons; 4. No order as to costs. ********** 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. Decision last updated: 18 September 2019