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District Court 22 August 2006

R v David Robert Baldock

[2006] NSWDC 37

Traffic & driving
CRIMINAL LAW CONVICTION APPEAL FROM LOCAL COURT EXCEED SPEED SPEED CAMERA APPROVED SPEED MEASURING DEVICE LIMITED EVIDENTIAL SCOPE OF.

Citation: R v David Robert Baldock [2006] NSWDC 37
Court: District Court of New South Wales
Date: 22 August 2006
Judge(s): Nicholson SC DCJ

Background

The appellant was driving his vehicle eastbound through the M5 Motorway tunnel at Bardwell Park on 12 June 2005. A speed camera photographed his vehicle, and the encrypted data on the resulting image recorded his speed as 93 km/h in an 80 km/h zone. He received a traffic infringement notice and elected to have the matter heard in the Local Court.

In the Local Court, the prosecution relied on statutory certificates and speed camera photographs to prove the offence. The magistrate was satisfied beyond reasonable doubt that the appellant had exceeded the speed limit by less than 15 km/h and recorded a conviction. The appellant appealed to the District Court.

The District Court heard the matter as a hearing de novo (a fresh hearing on the evidence, not merely a review for legal error). Additional evidence was admitted by consent, and both the original exhibits and transcripts from the Local Court were before the court.

  • Whether the statutory certificates and speed camera photographs, tendered under sections 46 and 47 of the Road Transport (Safety and Traffic Management) Act 1999, were sufficient to prove the speeding offence beyond reasonable doubt.
  • Whether the appellant's sworn evidence and the site maintenance log constituted "evidence to the contrary" within the meaning of those provisions.
  • What consequences follow when "evidence to the contrary" is adduced, and whether the prosecution then bears an obligation to prove the accuracy of the measured speed.

Decision

The court examined the statutory framework governing approved speed measuring devices and approved digital camera recording devices. Certificates issued under the relevant provisions carry evidentiary weight as to the accuracy and operation of the equipment, but that weight is displaced once "evidence to the contrary" is adduced. Nicholson SC DCJ, drawing on earlier Supreme Court decisions in RTA v Nichols and RTA v Mitchell, held that the phrase "evidence to the contrary" does not require the defendant to establish a reasonable possibility of innocence. Even slight or unconvincing contrary evidence is sufficient to negate the statutory presumption.

The appellant gave sworn oral evidence that he was travelling at approximately six or seven kilometres per hour below the speed limit throughout the tunnel, a matter he said he had discussed with his wife at the time. That evidence, combined with the site maintenance log showing an unresolved maintenance issue (recorded from 4 May 2005 and not rectified until 1 July 2005) affecting the camera equipment on the date in question, constituted "evidence to the contrary." The court rejected the defence submission that the overall pattern of eleven maintenance issues over fifteen months rendered the equipment so dysfunctional as to independently disprove the recorded speed, but accepted the sworn evidence as sufficient contrary evidence.

Once contrary evidence was adduced, the burden shifted back to the prosecution to affirmatively prove that the speed recorded by the device was the speed actually travelled. The prosecution did not run a case in reply and led no further evidence on that question. The court held there was therefore no prosecution evidence establishing that the measured speed equalled the speed travelled. The prosecution failed to prove the offence beyond reasonable doubt.

Orders Made

  • The conviction appeal was upheld.
  • The conviction recorded by the magistrate was quashed.
  • The fines and costs imposed by the magistrate were quashed.

Key Takeaways

  • Under sections 46(2) and 47(3)(b) of the Road Transport (Safety and Traffic Management) Act 1999, the evidential value of speed camera certificates and photographs is not absolute: it is displaced once "evidence to the contrary" is adduced by the defendant.
  • The threshold for "evidence to the contrary" is low. The District Court confirmed, consistent with RTA v Mitchell, that even slight or unconvincing contrary evidence satisfies the requirement; the defendant is not required to establish a reasonable possibility that they were not speeding.
  • Parliament's choice not to impose a positive burden on the accused in this legislation (contrasted with provisions such as section 29 of the Drug Misuse and Trafficking Act 1985) reflects a deliberate legislative intention to relieve defendants of any reverse onus.
  • Where contrary evidence is adduced and the prosecution does not respond with evidence in reply, the statutory certificates and photographs alone cannot sustain a conviction; the prosecution must affirmatively prove accuracy of the recorded speed.
  • A site maintenance log disclosing an unresolved technical issue with camera equipment during the relevant period can form part of the evidential foundation for a "contrary evidence" finding, even if it does not independently establish that the equipment was malfunctioning on the specific occasion.

Legislation and Cases Referenced

Legislation:
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 46, 47
- Road Transport (General) Act 2005 (NSW), s 230
- Motor Accidents Compensation Act (NSW), s 221
- Roads Act 1993 (NSW), s 248(4)
- Drug Misuse and Trafficking Act 1985 (NSW), s 29

Cases:
- RTA v Nichols [2005] NSWSC 946 (Hoeben J, 22 September 2005)
- RTA v Mitchell [2006] NSWSC 194 (Adams J, 22 March 2006)