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House of Assembly - Fifty-Second Parliament, First Session (52-1)
2011-06-09 Daily Xml
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JUDICIAL REFORM

The Hon. R.B. SUCH (Fisher) (11:53): I move:

That this house calls for reform of our court system using, as a basis, the report of Judge Peggy Fulton Hora (Ret) entitled 'Smart Justice: Building Safer Communities, Increasing Access to the Courts, and elevating Trust and Confidence in the Justice System'.

I am sure members have had a chance to look at the report of Judge Hora. It is quite an extensive report. Judge Hora was a thinker in residence. I know there has been criticism of that program over time, but I am not convinced that everyone takes on board, in a sense of critical evaluation, the work that is done by the thinkers in residence. We do not have to agree with every point that is made by a thinker in residence, but I think it is good that we are sometimes challenged in regard to what we do to see if we can improve it and make it better.

I cannot go through every single recommendation and I want to get onto my own experience, because, unless you have been in and through the system, I do not believe you can really understand how our court system works, or sometimes does not work, and how I believe it could be improved. I do not agree with all of the things that Judge Hora recommended, but some of them were quite sensible, I believe. She recommended:

Expand the use of existing video conferencing;

I think that it is a good idea—

Require the justice system personnel and members of the judiciary to take up professional development opportunities, including cross-disciplinary training;

Adopt standards of judicial education that require professional development for both new and experienced bench officers;

Restructuring bail and bond legislation so the court has more options and will respond to breaches, consistent with evidence-based practice;

Create a mental health and addiction service team to ensure an integrated response to alcohol and other drug abuse and mental health issues.

One recommendation I did not agree with was the suggestion that the terms 'drink driving' and 'drug driving' be replaced with the term 'driving while impaired'. I disagree with that suggestion because I think that calling it 'drink driving' and 'drug driving' says exactly what it is and that calling it 'driving while impaired' could mean you were wearing very thick sunglasses, for example.

She recommended legally underpinning the right to a speedy trial. She did make the comment that lawyers who dragged out court cases should be penalised, and I would argue that it should apply both ways—to the Crown, as well as to defending lawyers—because the Crown can also delay and cause significant cost to people involved in the court process. She recommends advanced training for SAPOL prosecutors. I know some people argue that it should not be the police prosecuting at all; it should be someone who is a qualified lawyer, probably under the umbrella of the DPP. As I say, the list of recommendations is quite significant.

One of the points she made, and one which I have touched on, was the need for improved training of judicial officers. I was talking recently to a former magistrate who said that he was sworn in at, I think, 11 o'clock by the Chief Justice and was basically told, 'You can't go back to your legal office because you are now a magistrate,' and the next morning he was adjudicating on cases. That can be fine, but the background of that magistrate may not be sufficient or appropriate for the cases they are going to be dealing with, and that brings to mind my own experience.

I do not want to reflect on the magistrate unfairly (Magistrate Joanne Tracey). I believe she had a history of working with Mellor Olsson in legal defence matters relating to medical issues, but then she comes into court and deals with an issue like mine, for example, which was a highly technical traffic matter. I do not believe it is appropriate to have magistrates dealing with a matter if they do not have the necessary technical background to deal with that issue.

I have raised before the point of having a specialised traffic court, which some jurisdictions have. The answer from Chief Magistrate Elizabeth Bolton—and I have said before that I have the highest respect for her—was, 'Look, magistrates have to deal with every issue.' I think members can understand that if you have a complex issue and the magistrate does not have the necessary background, you can end up with an injustice being created.

I will give you some examples from my case—and I am not trying to use this as a justification and a personal focus but, because I experienced it, I know what can happen. In my case, the police officer (Gregory Luke Thompson), who had been a constable for 30 years, said that he saw my car at a distance of 500 metres. He swore on his affidavit that at 500 metres he could tell that my car was travelling at more than 60 km/h.

I have yet to find any professional—optometrist, ophthalmologist, anyone who knows anything about eyesight—who agrees that, at that distance, you can tell the speed of an oncoming car. In fact, I was told by a former magistrate that there is a ruling of the Supreme Court (we did not know it at the time) that that sort of claim is just not acceptable in court. When we get to court, the officer said (and I am paraphrasing), 'No, it wasn't 500 metres, it was 450.' The magistrate obviously took that into account. I believe that anyone who understands distances or the speed of vehicles would say that that is a claim which is fanciful at that distance.

On the expiation notice—the details of which I finally got seven months after the alleged offence—the officer claimed to be 20 metres north of Crossing Road on Oakridge Road, on the western side, at Aberfoyle Park. When he came to court he said, 'Oh no, I wasn't 20 metres north, I was further down the road.' He alleged he was on these Telstra plates 30 metres down the road. I believe he misled the magistrate, because the Telstra plate is 40-odd metres down the road.

The magistrate did not inspect the site, is not familiar with the site, and relied on the honesty of the police officer—in this case, I think, wrongly. She accepted that he did not change his location because at the point he had written down you cannot pull cars over because there is a yellow line against the kerb and a solid centre line. She said he did not change his location because of that. Under the Australian road rules, you understand that a police officer cannot pull someone over where there is a solid yellow line and a solid centre white line.

I gave evidence that he was not wearing a reflective jacket. It was a hot day. In court he said he was, that he was wearing his winter reflective jacket. That is a nonsense, but she accepted it. She had no evidence that he was wearing it. She just said, 'Yes, he was wearing it.' So it goes on. He made a lot of errors. She acknowledged that he made a lot of errors. In fact, on appeal at the Supreme Court the lawyer for the Crown, Susan Halliday, whom I have a lot of respect for, said to me in the gallery of the court that 'police officer Thompson made a lot of errors, didn't he?' I agreed with her. In her findings the magistrate said:

Constable Thompson was clearly an experienced police officer who despite having made a number of errors and omissions in his notes impressed me…

I think he made so many errors that he should not have impressed anyone. In fact, he claimed that he wrote down the results of the afternoon test in the morning. She said that basically he should not do that but nevertheless allowed his evidence to be accepted. The other very important point is that the magistrate said:

Constable Thompson is not qualified as an expert in scientific or engineering matters relevant to the operation of lasers and many of the issues sought to be established through his cross-examination could more properly have been put to an expert with those qualifications.

We suggested an expert, but the police said, 'If you bring one, we are going to bring someone from England. It will cost you another $20,000 if you lose.' You have to weigh that up. That is what the police do and that is what they currently say to people, 'If you challenge us in court, we'll bring the people who supply the fixed cameras.' My case involved a laser. The police say, 'We'll bring someone from Germany and put that on your costs.' It is another form of intimidation and threat.

We had an expert lined up to test the laser, and we asked in court for the police to provide the laser and technical information for independent testing by Professor Veitch at Adelaide University. That was refused on the ground of commercial in confidence, which is a nonsense in a criminal case, which is what a traffic matter is. If you ask to have a Smith and Wesson tested, you are not going to get the answer, 'Look, you can't have it tested because Smith and Wesson won't allow their property to be tested; it's commercial.' That means that you cannot defend yourself because you are not allowed to have the instrument to have it checked by Professor Veitch using equipment at Adelaide University. So you are on the back foot.

Cost is another point in relation to court procedures. The Magistrates Court hearing cost me $14,000. I think I attended 11 half-days. The trial was supposedly three days. There was never a pre-trial conference. The magistrate got angry at one stage and asked why there had not been a pre-trial conference. In preliminary hearings, two magistrates said there should be a pre-trial conference; there never was. The processes of the court need to be looked at, revised and reformed.

As I said, Constable Thompson made many errors. I think he also told many untruths. He claimed he was under a tree; there is no tree at the location, and people can still have a look and see that is the case. He said that he always went to work down that road; he does not go to work down that road, he goes in the opposite direction to Sturt. The magistrate does not know that, and I guess it is up to the lawyer (if you have one) to point it out.

The other major deficiency was the certificate that, basically, got me hung. The police had three goes at that. With the first one that they provided under discovery, the officer could not say whether or not he had organised it, and he was not sure who had signed it. It was discussed in court. Then, at the start of the court, a certificate was introduced which was accepted on a qualified basis—de bene esse—and then, after cross-examination, police brought in another certificate which was different again. It had white-out on it; they had whited out the front with the name of the laser, LTI (made by Laser Technology Industries), and someone had handwritten on the certificate 'speed guns'. That was accepted, and basically that is what got me hung. I do not believe that is a satisfactory process. If you go to any government office with a certificate that has had part of it whited out and written over with biro, they will not accept that—nor should they.

The police are supposed to provide proof beyond reasonable doubt, but we provided the photographs. The magistrate said that maybe they did not do justice, that they could be misleading. Well, the police did not provide any. We did not seek to mislead; they were the photos taken looking at the street. The police did not provide any, and they are supposed to prove beyond reasonable doubt. This is where, if you have a magistrate whose background is in balance of probabilities and civil matters, I do not believe you get the right outcome.

Recently there was a case with Elizabeth Bolton, the Chief Magistrate (members may have seen it), where a pensioner was charged with going through a fixed camera. The police had a photograph and a certificate of accuracy, but she said that the police had not proved beyond reasonable doubt that that person was speeding and dismissed it. In my case, there was no photograph, three different certificates of accuracy, and a story from the police officer that I believe was, in essence, largely inaccurate.

We had mathematical information: vehicle speed per second, distance of the vehicle. The police officer thought it was a Ford Festiva; it was not (it was a German car, a Ford Focus), and he is supposed to be an experienced police officer. However, the defence lawyer—one of the top traffic lawyers in Adelaide, Michael Woods, an ex-police prosecutor—had all the mathematics, and the magistrate said that applying such an apparently logical mathematical formula was attractive; however, the results must, of their nature, be speculative. I am alleging that the magistrate did not understand the mathematics and therefore did not give them any regard.

The defence lawyer—as I said, one of the top traffic lawyers in South Australia and an experienced police prosecutor—showed that the police officer could not have pinged my vehicle at 416 metres; it was just not mathematically possible. However, it was dismissed. I think it comes down to the fact that you have a magistrate who is not fully briefed on and does not fully understand the technical aspects. That is where the system can go astray.

The long and short of it was that I was found guilty. When you appeal to the higher courts, they basically say 'Look, the magistrate has looked at it,' and that's it. I think that before a judgement is finalised in the Magistrates Court there should be an interim judgement which the parties can respond to.

Debate adjourned on motion of Mrs Geraghty.

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