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Court of Criminal Appeal 21 February 2007

Roads and Traffic Authority of New South Wales v Baldock

[2007] NSWCCA 35

Also reported as 168 A Crim R 566
Traffic & driving
TRAFFIC LAW OFFENCES PROOF OF SPEED SPEED MEASURING DEVICES ACCURACY EVIDENCE TO THE CONTRARY

Citation: Roads and Traffic Authority of New South Wales v Baldock [2007] NSWCCA 35
Court: NSW Court of Criminal Appeal
Date: 21 February 2007
Judges: Spigelman CJ, Bell J, Howie J

Background

On 12 June 2005, the respondent driver was recorded by a speed camera on the M5 Motorway at Bardwell Park travelling at 93 km/h in an 80 km/h zone. He was convicted of a speeding offence in the Local Court. At trial, the prosecution relied on photographic evidence and statutory certificates tendered under the Road Transport (Safety and Traffic Management) Act 1999, and the respondent gave evidence that he believed he was travelling below the speed limit.

The respondent successfully appealed to the District Court. Judge Nicholson SC allowed the appeal and, in doing so, made rulings on several questions of statutory interpretation concerning the evidentiary framework governing speed camera evidence.

Because those rulings had implications beyond the individual case, Nicholson DCJ stated a case for the Court of Criminal Appeal, posing four questions of law. The Roads and Traffic Authority (RTA) was the appellant in the CCA.

  • Whether a District Court appeal from the Local Court under Part 3 of the Crimes (Local Courts Appeal and Review) Act 2001 is correctly characterised as a "hearing de novo"
  • Whether a defendant's own testimony that they were driving below the speed limit is capable of constituting "evidence to the contrary" of the speed recorded on a speed camera photograph, for the purposes of s 47(3)(b) of the Road Transport (Safety and Traffic Management) Act 1999
  • Whether the phrase "evidence to the contrary is adduced" in s 47(3)(b) requires the defendant to establish a reasonable possibility of a different speed (this question was found unnecessary to answer)
  • Whether a defendant's testimony that they were driving below the speed limit is capable of being "evidence that the approved speed measuring device was not accurate or not reliable" under s 46(2) of the Act

Decision

Question (a): Nature of the District Court appeal

The Court held that Nicholson DCJ erred in characterising the District Court appeal as a "hearing de novo." Appeals under Part 3 of the Crimes (Local Courts Appeal and Review) Act 2001 are not hearings de novo. The Court acknowledged the respondent's submission that the judge may only have intended to contrast his role with a pure error-of-law review, but confirmed the characterisation was nonetheless legally inaccurate. Question (a) was answered: yes, there was error.

Question (b): Driver's testimony as "evidence to the contrary"

The Court held that the defendant's testimony that he was travelling below the speed limit was capable of constituting "evidence to the contrary" of the speed shown on the photograph, for the purposes of s 47(3)(b). Question (b) was answered: yes, there was error in the District Court's approach.

Question (c): Standard required of "evidence to the contrary"

The Court found it unnecessary to answer question (c), given the answers provided to the other questions.

Question (d): Driver's testimony as evidence of device inaccuracy

Section 46(2) of the Act provides a defence where evidence is adduced that the approved speed measuring device was not accurate or not reliable. The Court held that such evidence must relate to the device itself, not merely to the output or measurement it produced in a particular instance. A driver's subjective belief about their own speed does not constitute evidence about the accuracy or reliability of the device. Question (d) was answered: yes, Nicholson DCJ erred in holding otherwise.

Costs

Although the RTA succeeded on the stated case questions, it did not seek to have the matter remitted to the District Court. Nicholson DCJ's order in favour of the respondent therefore stood undisturbed. Given the "test case" character of the proceedings and the late communication about remission, the Court exercised its discretion to order the RTA to pay the respondent's costs.

Orders Made

  • The questions on the stated case answered as follows: (a) Yes; (b) Yes; (c) Unnecessary to answer; (d) Yes
  • The appellant (RTA) to pay the respondent's costs

Key Takeaways

  • A District Court appeal from the Local Court under Part 3 of the Crimes (Local Courts Appeal and Review) Act 2001 is not a hearing de novo, and describing it as such is a legal error, even if the intended distinction was between a full rehearing and a pure error-of-law review.
  • Under s 47(3)(b) of the Road Transport (Safety and Traffic Management) Act 1999, a defendant's own testimony that they were travelling below the speed limit is capable of amounting to "evidence to the contrary" of the speed recorded on a speed camera photograph.
  • Evidence capable of rebutting the accuracy or reliability of an approved speed measuring device under s 46(2) must go to the device itself, not merely to the speed reading it produced in a given instance. A driver's assertion about their own speed does not satisfy this threshold.
  • The Court of Criminal Appeal confirmed its power to award costs in a stated case brought under s 5B of the Criminal Appeal Act 1912, and exercised that discretion in favour of the respondent despite the RTA succeeding on the substantive questions, reflecting the test-case nature of the proceedings.
  • Where an appellant in a stated case does not seek remission, the lower court's original orders remain on foot regardless of how the questions of law are answered.

Legislation and Cases Referenced

Legislation:
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 27(3)(b), 44(1), 45(1), 45(2), 46, 47
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), Part 3
- Criminal Appeal Act 1912 (NSW), s 5B
- Australian Road Rules, r 20
- Interpretation Act 1987 (NSW), s 33
- Suitors' Fund Act 1951 (NSW)
- Traffic Act 1909 (NSW), ss 4AB, 4AC

Cases:
- Gianoutsos v Glykis (2006) 162 A Crim R 64
- Di Natale v Kelly [2006] NSWCCA 201
- Charara v The Queen [2006] NSWCCA 244
- Roads and Traffic Authority (NSW) v Nichols [2005] NSWSC 946
- Roads and Traffic Authority (NSW) v Michell [2006] NSWSC 194
- Director of Public Prosecutions v Cummings [2006] VSC 327
- CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384
- Newcastle City Council v GIO General Limited (1997) 191 CLR 85
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- Waugh v Kippen (1986) 160 CLR 156
- Re Bolton; ex parte Beane (1987) 162 CLR 514
- R v Lavender (2005) 222 CLR 67