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District Court 27 February 2007

Asafiri, Haissam v D.P.P

[2007] NSWDC 384

Traffic & driving
EXCEEDING SPEED LIMIT ALLEGATION 73KPH IN 60 KPH ELEMENTS TO BE PROVED SPEED LIMIT 60KPH APPELLANT DISPUTES TRAVELLING SPEED

Citation: Asafiri, Haissam v D.P.P [2007] NSWDC 384
Court: District Court of New South Wales
Date: 27 February 2007
Judge(s): Nicholson SC DCJ

Background

The appellant was alleged to have driven his yellow Hyundai sedan at 73 kilometres per hour in a 60 kilometre per hour zone on the Hume Highway in the early hours of 18 March 2006. A police vehicle containing an approved speed measuring device had been travelling ahead of him before the appellant's car overtook it near the boundary between a 70 kph and a 60 kph zone. Senior Constable Setter activated the speed measuring device after the appellant passed, recording a speed of 73 kph, and issued a traffic infringement notice.

The appellant contested the charge in the Local Court, where Magistrate Barry found the prosecution case proved beyond reasonable doubt. He then appealed to the District Court on both conviction and severity grounds.

The key factual dispute centred on when, and therefore where, the speed measuring device had been activated. The appellant argued he had not been speeding, and challenged whether the reading was taken after he had moved into the 60 kph zone.

  • Whether the prosecution had proved beyond reasonable doubt that the applicable speed limit was 60 kph
  • Whether the prosecution had proved beyond reasonable doubt that the appellant's vehicle was travelling in excess of that speed limit
  • Whether the timing and location of the speed device activation was consistent with a lawful and accurate reading
  • On the sentence appeal, whether the recording of a conviction was appropriate given the appellant's circumstances

Decision

Conviction appeal: Nicholson SC DCJ dismissed the conviction appeal, finding the prosecution had proved both elements of the offence beyond reasonable doubt. There was no dispute that the speed limit in the relevant area was 60 kph. The court was satisfied that the approved speed measuring device, which had been tested both before and after the incident and found to be accurate, had recorded the appellant's vehicle travelling at 73 kph.

The court accepted the appellant's own case that the device was activated after the appellant passed the police vehicle, which placed the measurement within the 60 kph zone. The appellant's argument that the police officer had acted out of anger was rejected. The judge noted the officer had activated both video and audio recording before approaching, making it highly improbable he would have behaved improperly knowing the footage could be tendered in evidence. The appellant's good character and his claim not to have offended for four years were considered, both as to his credibility and the likelihood of offending, but this did not displace the court's satisfaction that the offence was proved beyond reasonable doubt.

Sentence appeal: The court upheld the sentence appeal and quashed the conviction. Noting that the appellant had driven without offence for almost six years prior to this incident, that the offence occurred in light traffic on a dry road in the early hours of the morning with no apparent danger to others, and that the excess was in the lowest category (less than 15 kph over the limit), Nicholson SC DCJ considered it appropriate to make no conviction order. The court exercised its power under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, confirming the finding of guilt while dismissing the charge without recording a conviction.

Orders Made

  • The conviction appeal is dismissed
  • The sentence appeal is upheld to the extent that the finding of guilt is confirmed
  • The conviction recorded by the Local Court is quashed
  • The financial penalty imposed by the magistrate is quashed
  • Court costs imposed by the magistrate are quashed
  • Pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, the appellant is found guilty and the charge is directed to be dismissed

Key Takeaways

  • A prosecution for exceeding the speed limit requires proof of two elements only: that the relevant speed limit applied and that the defendant exceeded it. The prosecution is not required to prove every detail of the officer's account.
  • The District Court confirmed that an approved speed measuring device's reading can be accepted as accurate where the device has been independently tested both before and after the relevant incident and found to be functioning correctly.
  • In dismissing the anger argument, the court reasoned that the simultaneous activation of video and audio recording by the officer made deliberate misconduct highly improbable, given that the material was liable to be produced as evidence.
  • Where a defendant's own submissions effectively confirm that a device was activated in the zone where the lower speed limit applied, that concession can support rather than undermine the prosecution case.
  • Under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, a court may find an offender guilty and dismiss the charge without recording a conviction, a course the District Court considered appropriate here given the relatively minor nature of the excess, the absence of danger, and a sustained period of good driving conduct.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 10(1)(a)

Cases cited: None cited in the judgment text or metadata.