MAGISTRATES COURT, TRAFFIC MATTERS

The Hon. R.B. SUCH (Fisher) (11:39): I move:

That this house calls on the state government to undertake reforms relating to the way in which the Magistrates Court hears and deals with traffic matters, including the creation of a special division encompassing a traffic court with appropriately trained magistrates.

Members need to be aware, obviously, that I had a court matter that concluded in the—

An honourable member: I was just reading about it, Bob.

The Hon. R.B. SUCH: You will read a bit more later. It was in the Magistrates Court. That was dealt with and then went on appeal to the Supreme Court with Justice Tim Anderson. It is not appropriate that I canvass specific aspects of my matter because I am in the process of lodging an appeal to the Full Court, but I do want to talk in general terms about the Magistrates Court—and this is no reflection on any individual magistrate; I have high regard for our magistracy and also for our justices.

Perhaps the best way to outline what I am seeking to do is to read a letter I wrote to the Attorney-General, the Hon. John Rau, and the Chief Magistrate, Elizabeth Bolton, on 14 July of this year after the matter had concluded in the Magistrates Court.

Dear John and Elizabeth

I write regarding the structure of the Magistrates Court in South Australia and the need for a specialist division of the Magistrates Court to adjudicate traffic matters.

I understand that at present, a magistrate hearing traffic matters does not require specialist knowledge or training in the fields of mathematics, physics, photonics, etc., and is chosen from a pool of sitting Magistrates subject to availability.

However, it is imperative that a Magistrate adjudicating an alleged speeding offence understand the technical workings of laser (lidar principles) and radar devices, both fixed and mobile, especially the relationship between the mode of detection and the method of calculating vehicle speed, including any limitations of the technology (eg. effective range and width of the detection area; causes of interference; factors affecting target identification such as more than one vehicle within an image or a vehicle not clearly identified; effects of relative size, shape, finish and distance of targets) and possible sources of error (eg. cosine effect; panning errors; sweep effect; other sources of operator error). It is not unreasonable to expect that a Magistrate hearing a speeding matter should be au fait with the Australian Standards requirements, manufacturer's specifications and SAPOL operational guidelines for laser and radar speed detection devices.

I ask—Will the government take the necessary steps to establish a specialised division of the Magistrates Court to hear traffic matters, with sitting Magistrates who have specialist training and/or qualifications?

It is signed 'Yours sincerely'. The reply came from the Chief Magistrate, Ms Elizabeth Bolton, and I must say that it was not only a courteous reply, which is always pleasing, but also a considered reply. I commend the Chief Magistrate for her response dated 6 August 2010, which states:

Dear Dr Such

I refer to your letter to me of 14 July 2010 and apologise for my delay in replying...In your letter to the Attorney-General and myself you note that a magistrate hearing traffic matters does not require specialist knowledge or training in a number of scientific fields when they hear traffic matters.

As I understand the concerns raised in your letters, they are that a magistrate hearing a traffic matter requires the knowledge of the technical matters to which you refer in order to properly adjudicate whether or not an offence has been committed pursuant to traffic law. Can I suggest to you that that approach is to misunderstand the role of the judicial officer who is adjudicating on the charge before him or her. The role of that officer is to listen to the evidence, including expert evidence and then make an assessment as to whether or not he or she is satisfied that the evidence proves the offence beyond reasonable doubt. As you may appreciate, judicial officers, including magistrates hear matters that involve many different areas of expertise. The judicial officers are reliant on the parties leading expert evidence in a comprehensible and persuasive way so that the officer can then assess that evidence in performing their function which is of course to determine whether or not an offence is committed. This is so not only in traffic matters but in a wide range of matters.

The Chief Magistrate goes on:

In relation to whether or not traffic matters should be heard separately from other matters, I suggest that there may be some administrative benefits in those matters being listed differently from other matters. However, such a separate listing would not be for the reasons which you have outlined but rather because there are many traffic matters and many of them resolve by means of pleas of guilty and there may be some administrative advantages in disposing of those matters separately from other sorts of charges. I will certainly give that issue some consideration.

I appreciate you raising these matters and I am happy to discuss them in more detail with the Attorney-General should he so require.

Yours sincerely

Elizabeth Bolton

Chief Magistrate

Now, clearly, the Chief Magistrate was not convinced with my initial argument about the technical side of traffic matters and I will just comment on that. Magistrates, as I understand it, are lawyers who have five years' practice experience. However, as I indicated in my original letter to the Attorney and to the Chief Magistrate, you could have a magistrate, for example, who has come from doing purely civil-type work (contracts or whatever) and then is in a court making a judgment about what can be a highly technical and specialised area relating to traffic. As the letter says, the magistrate hears from experts and others and makes some considered judgment.

I do not believe that in most cases it really matters. If it is an issue, for example, of whether someone was parked in the appropriate zone, I think that would be relatively straightforward. However, when you get into areas, for example, of radar, laser and so on, you are in fairly technical areas. It could be argued that the defence and the prosecution can bring witnesses. It does not always happen that way, for a whole range of reasons, and one of them, of course, is the cost.

For example, the police often say to people, 'If you contest this matter, we'll bring a witness from Europe and that will cost you $20,000 if you lose.' So, the person says, 'Well, I'm not going ahead with this; I'll plead guilty,' even if they may be innocent. In other words, in theory, a defendant may be able to bring a witness; but, in reality, if the police, for example, bring a witness and the person loses the case, they are up for a huge amount of money. So, in theory, yes, there may be an expert but, in other cases, there may not be an expert witness available, or cost factors come into it.

One of my concerns, and this, I think, relates to the second point made by the Chief Magistrate, is the following. At the moment, as I understand it, and I stand to be corrected if I am wrong, about 40 per cent of Magistrate Court matters are relating to traffic issues. The cost of that to the community is enormous, and I will deal with a point relating to that in my motion shortly. A lot of the time of magistrates is taken up dealing with traffic issues.

Some jurisdictions overseas do have specialised traffic courts. Despite the Chief Magistrate's initial lack of support for that specialised division, I think it is worth considering, and I ask the Attorney, in conjunction with the Chief Magistrate, to have a look at some other jurisdictions overseas where they do have specialised divisions. I do not see a problem with that; for example, in the completely different area of family law, we have specialised courts and, clearly, we have specialised courts dealing with criminal and civil matters.

I just come back to the point that I believe it is worthy of exploration, and I urge the Attorney and the Chief Magistrate to have a look at this issue, not simply on the grounds of trying to ensure that we have justice but in terms of the administration of the courts system and, potentially, significant savings to the community by having a refined approach in the sense of a specialised traffic division within the Magistrates Court. I commend the motion to the house.

Debate adjourned on motion of Mrs Geraghty.