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Supreme Court 21 July 2010

Director of Public Prosecutions v Gramelis

[2010] NSWSC 787

Traffic & driving
SPEEDING OFFENCE SPEED MEASURING DEVICE ERRORS OF LAW PROCEDURAL FAIRNESS JUDICIAL NOTICE

Citation: Director of Public Prosecutions v Gramelis [2010] NSWSC 787
Court: Supreme Court of New South Wales, Common Law Division
Date: 21 July 2010
Judge(s): Price J

Background

A defendant was charged with exceeding the speed limit in a school zone on The Northern Road, Luddenham, on 1 July 2009. The prosecution alleged he drove at 61 km/h in a 40 km/h zone, as detected by a laser speed measuring device (LIDAR) operated by a police officer. The defendant's speedometer was not working at the time, and he relied on the fact that his loaded truck was in second gear to suggest he could not have exceeded 40 km/h.

At the Mt Druitt Local Court, the magistrate dismissed the Court Attendance Notice in December 2009. The magistrate's reasons focused on a discrepancy in timing between the police officer's evidence (the offence occurred at approximately 2:58 pm) and the timestamp visible on the police in-car video system, which showed the defendant's truck passing at 3:01:27 pm. The magistrate also took judicial notice of her own experience driving manual cars in second gear.

The Director of Public Prosecutions appealed to the Supreme Court on the basis that the magistrate had committed multiple errors of law. Price J upheld the appeal on four of the five grounds argued.

Legal Issues

  • Whether the magistrate erred by failing to give the prosecution an opportunity to address or amend the Court Attendance Notice when she identified a timing discrepancy as a decisive concern, without raising it with the parties
  • Whether the magistrate misapplied the statutory presumption of accuracy for approved speed measuring devices under s 46(2) of the Road Transport (Safety and Traffic Management) Act 1999
  • Whether the magistrate failed to apply s 73A of the same Act, which requires evidence from a person with relevant specialised knowledge before the accuracy of an approved device can be challenged
  • Whether the magistrate's use of judicial notice regarding the speed of manual cars in second gear complied with the procedural requirements of s 144(4) of the Evidence Act 1995
  • Whether the prosecution had in any event proved its case beyond reasonable doubt (raised by the defendant in a Notice of Contention)
  • Whether the Court had a discretion not to remit the matter to the Local Court even where errors of law were established

Decision

Ground 1: Procedural fairness and the timing discrepancy

Price J found that the magistrate's primary concern was the discrepancy between the time particularised in the Court Attendance Notice (2:58 pm) and the in-car video timestamp (3:01:27 pm). Because this issue had not been raised in cross-examination or in the defendant's submissions, procedural fairness required the magistrate to raise it with the parties before delivering judgment. Had she done so, the prosecution could have sought to recall the police officer or applied to amend the Court Attendance Notice to read "about 2:58 pm." Time was not of the essence of the offence. The failure to offer that opportunity constituted an error of law.

Ground 2: Significance of the charge not specifying the higher speed

The magistrate noted that the defendant was charged with exceeding the limit by 10 km/h rather than by 21 km/h (the amount the LIDAR actually recorded). Price J was not persuaded this amounted to an error of law. It was open to the magistrate to treat this as a factual matter when weighing the competing evidence about the vehicle's speed. This ground was not established.

Ground 3: Misapplication of the statutory presumption of accuracy

Two LIDAR certificates were in evidence, one from before the offence and one from after. Under s 46(2), further proof of accuracy is not required unless evidence sufficient to raise a genuine doubt is adduced. Price J held that a discrepancy between the police officer's evidence and the in-car video clock could not affect the accuracy of the LIDAR, which was an independent piece of equipment that did not record time. The magistrate's doubt about the LIDAR's accuracy was based on irrelevant reasoning and constituted an error of law.

Ground 4: Failure to apply s 73A and procedural fairness

Because no party had challenged the LIDAR's accuracy, and the defendant had not called any witness with relevant specialised knowledge as required by s 73A, the magistrate had no basis to find that the device's accuracy was in doubt. The magistrate also failed to raise her concern with the parties, a further procedural fairness error. This ground was established.

Ground 5: Judicial notice and procedural fairness

The magistrate took judicial notice of the speed of an average manual car in second gear, drawing on her own driving experience, without giving the prosecutor an opportunity to make submissions or seek an adjournment to obtain expert evidence. Section 144(4) of the Evidence Act required that opportunity to be provided. The prosecutor had specifically noted in closing address that no expert evidence had been called about the truck's speed in second gear. The failure to comply with s 144(4) denied procedural fairness to the prosecution and was an error of law.

Notice of Contention and discretion to remit

The defendant argued the charge could not have succeeded in any event because the prosecution had not proved the precise boundaries of the school zone or exactly where in the zone the speed was locked in. Price J rejected this. The police officer's evidence that the defendant was approximately 100 metres into the school zone when the speed was locked, together with the in-car video and conversation evidence, provided ample material to support a finding of guilt. On the question of discretion, Price J declined to accept that s 59(2) of the Crimes (Appeal and Review) Act 2001 confers any overriding discretion to refuse to remit, and in any event stated he would not have exercised such a discretion in the defendant's favour.

Orders Made

  • The appeal is allowed
  • The magistrate's decision of 14 December 2009 dismissing the Court Attendance Notice is set aside
  • The matter is remitted to the Mt Druitt Local Court to be dealt with according to law
  • The defendant is to pay the plaintiff's costs
  • The defendant is to have an indemnity certificate under s 6 of the Suitors' Fund Act 1951

Key Takeaways

  • A magistrate who identifies a matter as decisive to the outcome, but which was not raised by either party, must afford the parties an opportunity to address it before delivering judgment. This obligation of procedural fairness applies equally to the prosecution and the defence.
  • Under s 46(2) of the Road Transport (Safety and Traffic Management) Act 1999, the statutory presumption of accuracy for an approved speed measuring device can only be displaced by evidence relating to the device itself. A timing discrepancy in an unrelated piece of equipment, such as an in-car video system, is not capable of raising doubt about the device's accuracy.
  • Section 73A of the same Act requires that any challenge to the accuracy or reliability of an approved device be supported by evidence from a person with relevant specialised knowledge. Absent such evidence, no sufficient doubt is raised.
  • Before taking judicial notice of a matter under s 144 of the Evidence Act 1995, a judicial officer must comply with the procedural obligation in s 144(4) to give each party the opportunity to make submissions and refer to relevant information, so that no party is unfairly prejudiced.
  • Price J expressed doubt that s 59(2) of the Crimes (Appeal and Review) Act 2001 confers any overriding discretion to refuse to remit a matter to the Local Court after errors of law are established, aligning with the approach taken in DPP v Wunderwald.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated