Road Traffic (Evidentiary Provisions) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. S.G. WADE (Minister for Health and Wellbeing) (16:23): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Road Traffic (Evidentiary Provisions) Amendment Bill 2018 will amend the Road Traffic Act 1961 to insert a new evidentiary provision to address issues arising from court outcomes involving the use of a Lidar traffic speed analyser by the South Australia Police (SAPOL) to detect speeding offences.

EVIDENCE

Measuring and scientific devices are caught by a common law presumption of accuracy over time. Among the measuring or scientific devices that come within the common law presumption are things like clocks, stop watches, tape measures and vehicle speedometers. The acceptance comes about by the courts' diminishing demand for strict proof over time, until accuracy is just accepted unless contradicted. Courts have not reached this point with most complex electronic devices, such as traffic speed analysers.

The essential legal test to meet is a test at common law to establish that a device is a scientific instrument of accuracy. This test contains two limbs:

(1) proof that the instrument in general is trustworthy; and

(2) the correctness of the particular instrument (for example the instrument was calibrated and used correctly).

In order to prove the second limb, section 175(3)(ba) of the Road Traffic Act contains an evidentiary provision that enables the prosecution to tender a document (certificate) to certify that a specified traffic speed analyser had been tested on a specified day and was accurate to the extent indicated on the document, in the absence of proof to the contrary.

This evidentiary provision removes the obligation that would otherwise be placed on the prosecution to call multiple witnesses to present evidence to a court regarding the accuracy of the traffic speed analyser.

JUDGMENTS

On 19 July 2018, Justice Peek, in the South Australian Supreme Court, handed down three judgments Police v Hanton [2018] SASC 96, Police v Miller [2018] SASC 97 and Police v Henderson [2018] SASC 98.

The three judgments all related to speeding offences detected by SAPOL operational police using a hand-held traffic speed analyser known as the 'Lidar device'. In each case, the matter proceeded to trial.

At trial, prosecution called the police officer who was operating the hand-held traffic speed analyser to give evidence in regards to a 'five step test' that was conducted on the day of detection to confirm that the device was operating correctly.

The prosecution tendered a certificate (signed by an officer of police) pursuant to section 175(3)(ba) (Evidence) of the Road Traffic Act to certify that the device had been tested on a specified day and was shown by the test to be accurate within the asserted range (+2 to -3 km/h).

Justice Peek made the following comment in the judgment of Police v Hanton:

'A problem that has arisen, perhaps incrementally, is that SAPOL have (in purported compliance with the statutory test), erected a system whereby the result of the last 'calibration test' of a TSA unit (if it occurred within the previous 12 months) will be taken to be the current extent of accuracy of that unit, provided that the rudimentary test (which may be referred to as the 'five step test plus calibration check' procedure) is 'passed'. What has been lost sight of is that RTA s 175(3)(ba) requires that first, the statutory test be performed proximate to the measurement of the speed the subject of a charge and second, that the statutory test must itself show that the TSA unit is then accurate to a particular stated extent.'

Justice Peek held that the South Australia Police (SAPOL) 'on-the-day testing' of the traffic speed analyser does not in itself produce a result that demonstrates that the extent of the accuracy of the device is within the asserted range (+2 to -3 km/h).

Justice Peek held that in the absence of other evidence adduced in each trial regarding the accuracy of the traffic speed analyser , there was no evidence that 'on-the-day testing' proved that the traffic speed analyser was accurate to the extent recorded in the evidentiary certificate (which was derived from the annual calibration). His key conclusion was that SAPOL's testing regime was not consistent with the requirements of s 175(3)(ba).

Justice Peek noted that s 175(3)(ba) was first introduced in 1964, at a time when all traffic speed analysers were tested on a daily basis by reference to a police car with a calibrated speedometer.

Technology has advanced since 1964. The amendments are modelled on similar provisions in Queensland, New South Wales and Victoria that provide for a presumption of accuracy if traffic speed analysers have been calibrated annually in a laboratory in accordance with the Australian Standards.

The information on the certificate that read +2 to -3 km/h originated from Australian Standard 4691.1—2003 Laser-based speed detection devices Part 1: Definitions and device requirements.

The Australian Standard 4691.2—2003 Laser-based speed detection devices Part 2: Operational procedures states that the traffic speed analyser shall not be used unless it has been tested and certified by a testing authority within the past 12 months. This involves testing the device to ensure the speed measurements are accurate within a range of +2/-3 km/h and range measurements are accurate within a range of +0.3, -0.4 metres.

AMENDMENTS

In order for the prosecutor to tender a certificate which is consistent with the Australian Standard or if there was no appropriate Australian Standard—the manufacturer's specifications, an amendment to section 175 of the Road Traffic Act is required to insert a provision that enables the prosecution to tender a certificate that certifies that the specified traffic speed analyser was accurate for a period of 1 year immediately following the day on which the traffic speed analyser was tested (the 'calibration test'). The facts certified in the certificate will constitute proof, in the absence of proof to the contrary.

Calling expert evidence for every prosecution to prove that the traffic speed analyser results are accurate in each prosecution would be a significant financial cost to the prosecuting authority. The certificate enables the prosecuting authority to avoid calling expert evidence to establish the accuracy of a traffic speed analyser.

I commend this Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal. The measure comes into operation on the day on which it is assented to by the Governor.

Part 2—Amendment of Road Traffic Act 1961

3—Amendment of section 175—Evidence

Clause 3 of the measure makes several amendments to section 175 of the Act. Clauses 3(1) and (2) of the measure limit the current evidentiary provision in section 175(3) of the Act to traffic speed analysers that are also photographic detection devices. These subclauses are consequential on the amendment to section 175(3) proposed by clause 3(3) of the measure.

Clause 3(3) of the measure inserts new paragraph (baa) into section 175(3) of the Act.

New paragraph (baa) is an evidentiary provision that relates to traffic speed analysers that are not photographic detection devices. It provides that if the prosecution produces a certificate by the Commissioner of Police (or a police officer of or above the rank of inspector) certifying that such an analyser was tested on a specified day in accordance with an appropriate Australian Standard (or if there was no Australian Standard in force on the day of testing, the manufacturer's specifications) and was found to be accurate to the extent indicated, then the certificate is proof, in the absence of proof to the contrary, of the accuracy of the analyser to that extent not just on the day of testing but also during the period of 1 year following that day (and is proof of that accuracy whether or not the analyser is used during that year in relation to vehicles of different speeds from those involved when the test was carried out or is used in different circumstances from those that applied when the test was carried out).

Debate adjourned on motion of Hon. R.P. Wortley.

At 16:24 the council adjourned until Wednesday 5 December 2018 at 14:15.