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IN THE SUPREME COURT OF NEW SOUTH WALESSource: RTA v. Michell (New South Wales Supreme Court, 3/24/2006)
COMMON LAW DIVISION
22 March 2006 (released 24 March 2006)
10605/06 - ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES v TIMOTHY ADAM MICHELL.
HIS HONOUR: This is yet another appeal arising from the interpretation of the Road Transport (General) Act 1999 and the Road Transport (Safety and Traffic Management) Act 1999.
In the present context, it is clear that the legislation attempts to strike a balance between evidence which, for all practical purposes, any reasonable person would accept gives rise to a reasonable level of certainty about particular facts and yet gives to a defendant an opportunity to test that assumption and in a particular case show that the assumption ought not to lead to an adverse decision in a context where the test of guilt is proof beyond reasonable doubt.
So far as the experience of the courts is concerned, it is evident that the legislation has had the effect of removing from the lists the vast majority of cases which might otherwise have been fruitlessly contested. The number of contested cases is tiny and, of those, only very few raise substantive factual issues suggesting that the forensic reliability of the equipment used to identify vehicles exceeding the speed limit is in question.
Attempting a non-technical description of the way in which the evidence generally proceeds, an image of a vehicle is recorded by a camera at a particular place, speed measuring device records a speed, and ultimately, the camera and the device produce via a computer programme an image upon which is recorded, amongst other things, the vehicle's speed. That image, when reduced to hard copy, is tendered to the Local Court in a prosecution for speeding, together with certificates to the effect that the relevant devices have been tested in accordance with the legislation and found to comply with the design specifications. It is then for the defendant to adduce evidence that for one reason or another the hard copy is wrong or at least there is a doubt about its accuracy.
This general procedure depends upon a number of assumptions which I do not intend to explore in this judgment but which will become evident as I deal with the relevant legislation. Ultimately, the evidentiary picture is, of course, determined by the application of the legislation in the context of a trial in which a defendant must be acquitted unless the tribunal of fact is satisfied of his or her guilt beyond reasonable doubt.
The provision in question in the present case is s 47 of the Road Transport (Safety and Traffic Management) Act 1999 of which it is necessary only, I think, to set out the following subsections:
“47 Photographic evidence of speeding offences
(Cf Traffic Act, s 4AC)
(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.
(2) In proceedings in which such evidence is given:
(a) the provisions of section 46 relating to the accuracy or reliability of the approved speed measuring device apply, 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 is evidence (unless evidence to the contrary is adduced)that the photograph has not been altered since it was taken.
(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 accepted as having been so taken (unless evidence to the contrary is adduced), and
(b) is evidence (unless evidence to the contrary is adduced) of the matters shown or recorded on the photograph.”
Before dealing with the interpretation to be given to these provisions, it is useful to set out what happened in the Local Court in Mr Michell's case.
The prosecution, as conventionally occurs, tendered a photograph of his vehicle taken by an approved digital camera recording device. That photograph contained text, including the speed at which the prosecution claimed his vehicle was moving at the time of the photograph, obtained by the use of an approved speed measuring device. Appropriate certificates in relation to these devices were tendered. The photograph also contained a number which appears to have been a security indicator as prescribed by para 47(2)(c). Whether it was a security indicator "of a kind prescribed by the regulations" is unclear because the prosecution did not, in the event, seek to rely on it. The photograph which was tendered to the Magistrate showed a number, apparently being the security indicator, as having been struck through. The prosecution made clear to the Magistrate that it did not rely upon the number that was struck through.
Objection was taken by Mr Miralis, appearing for Mr Michell, that the presence of such a security indicator rendered the photograph inadmissible. I do not delay to consider this question. It seems to me that the Magistrate's ruling that the photograph was admissible must be correct.
The prosecution case then continued in the conventional way to its conclusion, no further evidence about any security indicator being given. At the close of the case Mr Miralis submitted that there was no case to answer for the reason that there was no evidence that the photograph had not been altered since it was taken because the photograph did not bear "a security indicator of a kind prescribed by the regulations" within para 47(2)(c). After hearing submissions from the prosecution the learned Magistrate ruled that there was a case to answer, relying in substance upon the provisions of s 47(3).
Mr Michell did not give or call any evidence. The question, therefore, for the Magistrate to determine was whether he was satisfied beyond reasonable doubt that the offence had been proved. The Magistrate held that, although there was evidence of the speed with which the vehicle was being driven, in light of the omission of a security indicator within the meaning of para 47(2)(c), he was "not satisfied beyond reasonable doubt that the photograph [had] not been altered since it was taken". He accordingly acquitted Mr Michell.
Whether or not the photograph had been altered or whether the matter was susceptible of doubt strikes me as being entirely a question of fact or, if not a pure question of fact, a question of mixed fact and law. If this is right then the Authority cannot appeal to this Court without leave. Leave has not been sought.
It is submitted, however, that the effect of the legislative provisions to which I have adverted obliged the Magistrate to convict as a matter of law or, put otherwise, the absence of a security indicator was not evidence capable of raising a doubt as to whether "the photograph [had] not been altered since it was taken".
This raises the question of the correct interpretation of s 47(2) and (3). This is a pure question of law. However, this Court does not hear arid debates upon moot questions of law, nor does it give advice as to the proper interpretation of statutes. In the end it does seem to me that even the interpretation contended for by the Authority simply raises in an antecedent way the mixed question of fact and law to which I have already adverted. However, having regard to the number of prosecutions that might be affected by the question in issue and the notorious difficulty of precisely defining what is a pure question of law and what is not, I have decided that I should, despite my doubts, consider the matter sought to be agitated by the Authority.
The argument focuses upon the significance of the phrase "unless evidence to the contrary is adduced". That appears in each of paras 47(2)(c), 47(3)(a), and 47(3)(b). It is important at the outset to note that in order to remove what I might call the "default position", all that is necessary is that evidence to the contrary be adduced. The statute does not require that evidence to be of any particular quality. Even slight or unconvincing evidence “to the contrary” would satisfy the negating requirement.
The phrase to which I have drawn attention is in marked contrast to one often used where evidence is to be given prima facie cogency: "unless the contrary is proved" or, as appears in s 146 of the Evidence Act 1995, "unless evidence sufficient to raise doubt about the presumption is adduced". It cannot be doubted that the negating phrase used in the Act has been intentionally and carefully chosen in pursuant to the purpose to which I referred at the beginning of these reasons, namely, to create an appropriate balance between proof by mechanical or electrical device on the one hand and the right to defend a case on the other. A consequence of this reading of the paragraphs is that, when evidence (say) from a defendant is given that he or she was not driving at the speed shown on the photograph, the photograph and, perhaps more significantly, the text on it (including the speed) is not evidence of what is depicted. Moreover, this would be so, even if the evidence of the driver was disbelieved.
It may fairly be inferred that para 47(2)(c) would not have been necessary had it not been accepted by the Legislature that there was a risk, where an approved digital camera recording device is used, that the photograph may be altered, not (I assume) as the result of any sinister action, but because computer programming is imperfect and the risk of aberrant results needs to be borne in mind. It is, I think, the everyday experience of persons using computers that aberrant results are far from unknown. They are often, but not always, the result of human failure in setting up a system, or checking or testing a system. There are sometimes faults in the programmes themselves. These risks are part of everyday experience and the fact that they occur is part of the knowledge of the world brought to every factual question by any tribunal of fact including, of course, a Magistrate sitting in the Local Court.
The Authority relies almost exclusively upon the point that in this case no evidence to the contrary of the case made by the prosecution was adduced and therefore that what I have called the default position was that which faced the Magistrate at the close of the case. Mr Rushton SC, for the Authority, submitted that in the circumstances of this case therefore para 47(2)(c) was simply immaterial; the matter was entirely to be determined by reference to the provisions of s 47(3). He submitted that the evidence of speed, here the matter in question, was shown or recorded on the photograph which had been tendered, that was the only evidence of speed, it was admissible as evidence of speed, there was nothing before the Magistrate to suggest that it was not the speed of the motor vehicle and, accordingly, he was bound to accept it. There was no room, in other words, for a reasonable doubt about speed.
I do not accept this submission. I have already said that there was evidence of speed fit to establish a case that required to be answered. That followed from para 47(3)(b). However, I do not agree that para 47(3)(b) forecloses the question of the reliability of that evidence.
There are a number of reasons for reaching this conclusion. The first is the matter to which I have already referred, namely, the general acceptance of the risk that computer processes can go awry. In my view, a tribunal of fact would be justified, if it thought it proper, to consider that this risk created in a particular case a reasonable doubt. Whether it did so is unarguably a question of fact. That there was a risk of the process going awry was accepted by the Legislature moreover, because otherwise para 47(2)(c) would have been unnecessary.
I am also troubled in this case by the fact that a number appearing on the tendered photograph, apparently being a security indicator, was struck through and not relied on by the prosecution. That matter would raise, in my mind, a doubt about whether the photograph had been altered since it was taken, although this matter did not seem to trouble the learned Magistrate and I say no more about it.
It seems to me to be significant also that there is a marked difference in language as to the character of the evidence dealt with distinctly by subparas (a) and (b) of s 47(3). The evidence which "is to be accepted as having been so taken" within the meaning of subpara 47(3)(a) is that to which the general words of s 47(3) refers, namely, that the photograph was taken by an approved camera recording device, that it was taken on the specified day and that it was taken at a specified location. The fact that those three circumstances alone are to be so accepted in the absence of evidence to the contrary is in marked contrast to the matters referred to in para 47(3)(b), namely, "the matters shown or recorded on the photograph".
As it happens, both the day and the location are specified in the photograph tendered in this case, but it is clear that these are not the matters to which para 47(3)(b) refers. Amongst other things and, so far as is presently material, those matters include the speed. The effect of s 47(3)(a) "unless evidence to the contrary is adduced" is that the photograph must be regarded as conclusive evidence of the specified matters.
I think it is not accidental that para 47(3)(b) does not use such language but simply states that the matters shown or recorded on the photograph are "evidence" of the facts in question. There is nothing therefore in s 47 which required the learned Magistrate to accept the reliability of the stated speed, even in the absence of evidence to the contrary.
The Magistrate did not accept the recording of the speed on the photograph as reliable beyond reasonable doubt. In my view there is nothing in the Act that prevented him from having such a doubt and I do not accept the submission that merely because the evidence was all one way the Magistrate was bound to convict. That is not a principle of law in any jurisdiction in Australia in the absence of specific legislative prescription (and the language would have to be very strong indeed to bring about such a result), still less, in my view, under the terms of the Act. A tribunal of fact is still bound, even where the evidence is all one way, to consider the quality of that evidence and whether it persuades the tribunal beyond reasonable doubt of a defendant’s guilt.
In this case, however, it seems to me that the Magistrate did have a basis upon which it was reasonable for him to have a reasonable doubt if he was minded to do so. I have already referred to this basis and I do not propose to repeat it.
The question ultimately comes down to whether it was open to the learned Magistrate to acquit Mr Mitchell or whether it was, as the Authority contends, bound as a matter of law to convict. In my view he was not so bound. It follows that the appeal must be dismissed with costs.
Note: In light of publicity about the effect of this judgment I think I should add that it does not bring into contention, so far as I can see, cases where there has been a plea of guilty or, when the plea was not guilty, where the point has not been taken.