THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

THURSDAY 23 FEBRUARY 2006 -- Published March 3, 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."
Although I had initial doubts, it seems to me that this text is evidence that the motor vehicle identified as being in "Lane 3" is a vehicle being driven towards the camera. I will return to the possible significance of this evidence shortly.

5 In addition to the necessary certificates and the photographs to which I have referred, the statement of Richard O'Neill was tendered. Mr O'Neill was described as a "RTA officer". In his statement he asserts that he is "an officer of the Roads and Traffic Authority New South Wales". Mr O'Neill's statement asserts that the RTA records established that a Mr Holland inspected the relevant device on 12 May 2005 (the day before the alleged offence), that it was properly installed and connected to the relevant speed measurement devices. It was found to be operating correctly. Nothing is known of Mr O'Neill's expertise in relation to cameras, in particular how they are set up, and most importantly what the text "Lane 3" in the photograph designates in relation to any particular stretch of road. Mr O'Neill's statement contains the following assertion:

"The photograph now before the Court indicates that at Gymea on the 13 May 2005, when a speed limit of forty kilometres/hour applied, and motor vehicle number APP46S travelled in a westerly direction on President Avenue at a speed of fifty-one kilometres an hour detected by the approved speed measuring device.”

Motor vehicle number APP 46S is the defendant’s. The photographs depict a multi lane road with vehicles travelling in both directions. The close-up shows two vehicles travelling in a westerly direction, one of which is that bearing registration plate APP 46S, and another vehicle virtually in line with it. Were it not for the specification of "Lane 3" it would not be possible to distinguish, so far as the photograph is concerned, between the two vehicles in order to identify which of them had been detected exceeding the speed limit. That identification could only be made if one knew which lane was “Lane 3”.

6 It will be seen at once that the assertion in Mr O'Neill's statement as to what the photograph depicts is ambiguous, indeed to my mind imperviously so. Certainly Mr O'Neill is describing his understanding of the photograph. Implicit in the statement is the proposition that “Lane 3” is that in which vehicle APP 46S was travelling. The ambiguity is whether Mr O'Neill was merely making an assumption about the designation of the lane, or was giving an opinion about the designation of the lane, an opinion which he was qualified to give.

7 In my view, the statement did not purport to give such an opinion. The fundamental reason for this conclusion is the very brevity with which Mr O'Neill describes his occupation and role within the Authority. He confined himself to a statement that he was "in the administration appeals area as a prosecution officer". The rules about opinion evidence are very well known. It was suggested by the prosecutor during argument below that Mr O'Neill was a prosecutor. If this be right, the point is even more obviously made. I think that, if Mr O'Neill had been intending to convey an expert opinion about the way in which photographic and speed-measuring devices are set up, it is almost inevitable that he would have in his statement clearly enunciated the basis for that opinion. His self-description is in marked contrast to the way in which he qualified Mr Holland for the purposes of relying on Mr Holland's attendance and inspection of the device. He noted that Mr Holland "was authorised by the Authority to install and inspect approved digital speed camera recording devices".

8 Mr O'Neill was called to give evidence. He said in evidence that he was "in the administration appeals area as a prosecution officer". He was shown the photographs. He was asked:

“…to explain to the Court when this camera in particular, this camera working in relation to this offence [sic] ... how they work in relation to identifying the lane that the vehicle was [in].”
To this question Mr Miralis appearing for the defendant objected. His objection was, in substance, that Mr O'Neill was not qualified to answer the question. In my view the evidence thus far given to the Court fully justified this objection. It could not reasonably be said in any way that Mr O'Neill had been qualified to give that evidence.

9 The statement of Mr O'Neill had been tendered to the Court at an earlier point in the trial. No objection had been taken to it but, in my view, the objection made by Mr Miralis was, both in substance and effect, an objection to treating the sentence to which I have brought attention as an admissible item of opinion evidence as to the mode of identification of vehicles utilised by the relevant device. The prosecutor said, in answer to Mr Miralis' objection:

“All I am talking about is, as you can see, the photographs before your Honour is the physical lanes that are the lanes on the road. What constitutes a lane for this stretch of the road where the photographs are taken. Nothing further about the workings of the camera, nothing further. Just that.”
Not unreasonably the Magistrate asked:
“But can't we already see that?"
To which the prosecutor responded:
“Yeah, I know you can see that but perhaps I can just ask the witness a couple of questions."
To which the Magistrate agreed.

10 Mr Taylor asked Mr O'Neill whether he was familiar with the camera. He said that he was. He asked whether he had ever attended the site. He said, yes, he had driven through it. He was asked whether the vehicle (meaning the defendant's vehicle) is travelling generally west, to which Mr O'Neill agreed. He was directed to the words "Lane 3" on the photograph and was then asked:

“In light of that, can you just give the evidence of where lane 1 starts through to how many lanes are depicted in the photograph."

11 Mr Miralis, not surprisingly, objected once more. He explained once more that the matter was a technical one and that Mr O'Neill was not qualified to give evidence about it. In my view this objection was well taken. It was a technical question. To state the question in anthropomorphic terms, Mr O'Neill was being asked not what was in his mind, or what was in the mind of an ordinary member of the public, let alone the ordinary and reasonable member of the public, he was really being asked what was in the camera's mind. It is plain he was not qualified to give this evidence. If he had been involved in the setting up of the camera systems or had knowledge of it, he would have been adequately qualified.

12 Mr Miralis added that, at all events, the Magistrate should understand a lane in the sense in which it is used by the Australian road rules which, as I understand it, would have given a different answer. The learned Magistrate asked the prosecutor for his response to the submission of Mr Miralis that it was "a technical question", the prosecutor said:

“No I don't think it is. I think Mr Morris is getting - he thinks that this is in the nature of opinion evidence. If someone has seen and seen the lane, the physical layout of the road, they can say and know as a matter of fact that lane 1 is this lane, this is lane 2, and this is lane 3, and this is lane 4. They can give that evidence and it says that is the evidence and they are the four lanes in the photograph. He can give that evidence. It's not opinion. It's evidence of fact that this witness has seen to perceive.”

13 In this respect, if the prosecutor was right and he was only asking the witness about the physical layout of the road, the question was barely relevant since the physical layout was perfectly evident from the photographs. But on the assumption that it was relevant, he was right, it was not opinion evidence. The difficulty with the prosecutor's submission is that it did not answer Mr Miralis' point. That the prosecutor was merely attempting to adduce geographical as distinct from technical information is shown by the Magistrate’s response. Her Honour pointed out that she was perfectly familiar with the site in question and really did not need any evidence about its physical layout. The prosecutor implicitly accepted this observation, saying, in effect, that all he wanted to do was place this information on the record rather than having the matter the subject of judicial notice. When the Magistrate agreed that the prosecutor could elicit this information, she asked whether he had any further evidence he wished to adduce, to which the prosecutor said that he did not.

14 At this stage, therefore, as it seems to me the matter is quite clear. Mr O'Neill had in his statement given a description of what was at all events contained in the photograph. He had identified the defendant's vehicle as being in “Lane 3”. There was no basis upon which he could give that opinion since it did not fall within his experience or expertise, or to be more precise, the objection having been taken as to his experience or expertise, the prosecutor did not seek to qualify him. In my view the prosecutor withdrew any suggestion that Mr O'Neill's statement should be taken as an expert opinion upon which a conclusion as to the way in which the text in the photograph could be read.

15 The case then proceeded through a number of other steps, and at the end the prosecutor grappled with the problem of whether the defendant's vehicle was indeed in “Lane 3”, or whether the “Lane 3” referred to in the photograph identified a different vehicle, by appealing in substance to commonsense. He submitted that the Magistrate could look at the photographs and number the lanes herself. He said, in substance, that merely looking at the photograph told you that the defendant's vehicle was in “Lane 3”. He submitted that the camera indicated that the offending vehicle is in “Lane 3”. When the Magistrate asked him:

“How do I work out what “Lane 3” is?"

the prosecutor simply said:
“Lane 3 is moving from your left, I guess it's the more empty of the two lanes and the blue car [not the defendant's vehicle] is lane 2.”

16 It is clear from this submission that the prosecutor was not relying upon any opinion evidence at all but was simply relying upon commonsense observations of the scene as depicted in the photographs.

17 In her reasons the learned Magistrate identified the central problem in the case, namely what did the words "Lane 3" cited in the text on the photograph mean. She pointed out that if it meant what the prosecution contended it was not the normal police numbering of lanes. She noted that Mr O'Neill was unable to give evidence of what was in the camera's mind (my own phrase) because he was not qualified to do so. She said:

“Clearly Mr O'Neill wasn't somebody who was capable of telling us about how the camera functions and codifies what it photographs."


18 Attempting to make sense of the photograph and of the words "Lane 3", the learned Magistrate looked at the whole of the road and identified a vehicle that she thought commonsense suggested was the one identified by the photograph, but then pointed out that this was not really an issue that could be resolved in this way.

19 Mr Boulten SC, who appears for the RTA in this Court, has submitted that one major problem with the Magistrate's analysis is that the words at the top of the photograph, which I set out at the beginning of this judgment, clearly indicate that the offending vehicle was one that was coming towards the camera, and it therefore followed that the approach of the Magistrate (which would have meant that the offending vehicle was moving away from the camera) could not have been the way in which the camera was set up to identify offending vehicles.

20 There are two answers to this submission. The first is that it was never made below. The significance of the text relied on by Mr Boulten was never brought to the attention of the learned Magistrate although it is clear from argument which I have not found it necessary to set out that a mode of analysis which is now said to be mistaken was being considered by her Honour. More fundamentally, however, this is really an error of fact. She misunderstood (it may be) the meaning of the text in the photograph. It may be that she did not think that the text was material. It is impossible to say. In my view it does not matter. At most, the error committed by the Magistrate in this regard was factual. But, even if one corrected that fact so that the analysis of the Magistrate was mistaken, at the end of the day that did not provide the basis for the conclusion of the Magistrate. It simply meant that her solution of the conundrum was not the correct solution. Her Honour did not say that it was. Her Honour said, rightly in my view, that it was a commonsense solution, but as I have pointed out, immediately went on to say that this was not to be answered by resort to commonsense.

21 Her Honour's judgment concluded with the following words:

"So I have to say I am not convinced ... that the Authority has identified the Lexus [the defendant's motor vehicle] as being the offending car."

In my view, both as a matter of fact and as a matter of law, this conclusion was not only open, it was correct.

22 This appeal, however, can be decided upon a much narrower basis, namely the Authority has been unable to identify any error of law made by the learned Magistrate. All the complaints stated as errors of law are disguised errors of fact. The way in which this can easily occur is set out in the still authoritative decision of Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139, especially the judgment of Glass J at 155-157.

23 The character of the error where there is a perverse finding of fact may be susceptible, I suppose, of argument. In fairness to the learned Magistrate I should state that in my view no part of her Honour's findings could fairly be so characterised. However, it is unnecessary for me to base this judgment upon such a conclusion. It is sufficient simply to say that the contended for errors identified by the Authority are to my mind purely factual matters and accordingly this appeal must fail.

24 The plaintiff will pay the defendant's costs.