COMMISSIONER OF POLICE In Person [2025] SASC 47

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE DAVIS) MCCRM- 23-0025435 Appellant: COMMISSIONER OF POLICE In Person Counsel: MS H NIKOLOFF - Solicitor: CROWN SOLICITOR (SA) Respondent: CLINTON GERRITT SHAH In Person Hearing Date/s: 01/04/2025 File No/s: SCCRM-25-002484 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. POLICE v SHAH [2025] SASC 47 Judgment of the Honourable Justice Gray (ex tempore) 1 April 2025 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - RECKLESS DRIVING The respondent pleaded not guilty in the Magistrates Court to one count of driving a motor vehicle at an extreme speed. In the event of an acquittal of that charge, the prosecution argued that the respondent should be found guilty of the alternative charge of driving a vehicle recklessly or at a speed or in a manner which is dangerous. The Magistrate found the respondent not guilty of both charges. The appellant appeals against the acquittal of the respondent of the alternative charge on two grounds: 1. That the learned Magistrate erred in acquitting the respondent of the alternative charge, (being an offence against section 46 of the Road Traffic Act 1961) on the basis that the respondent had discharged the onus of establishing proof to the contrary of a fact asserted by the evidentiary certificate marked as Exhibit P1. 2. That the learned Magistrate reasons are inadequate in that the reasons do not adequately explain how the Magistrate reached the conclusion that the evidence presented by the respondent constituted proof to the contrary of a fact asserted by the evidentiary certificate marked as Exhibit P1. Held, dismissing the appeal: 1. Evidence to the contrary was established in respect of the matters certified in clause 2 of Exhibit P1 (at [45], [48]). It was open to the Magistrate based upon the evidence provided by the defence to make a finding on the balance of probabilities that Exhibit D1 constituted “evidence to the contrary” to the matters certified in clause 3 of Exhibit P1, and that was the correct finding on the evidence (at [57], [58]). -- 1 of 18 -- 2. The learned Magistrate correctly applied the ratio of Coleman v Police [2024] SASC 30, and the learned Magistrates reasons were adequate (at [70]-[72]). Criminal Law Consolidation Act 1935 (SA) s 19ADA; Magistrates Act 1983 (SA) s 42; Motor Vehicles Act 1959 (SA) s 140; Road Traffic Act 1961 (SA) s 46, s 47BA, s 47K, s 79B, s 175; Road Traffic (Miscellaneous) Regulations 2014 (SA) r 32, r 33; Road Traffic (Road Rules-Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) r 68, referred to. Allison v Police [2005] SASC 447; C, GM v Police (No. 2) [2008] SASC 45; Coleman v Police [2024] SASCA 30; Fox v Percy (2003) 214 CLR 118; Police v Baker [2015] SASC 110; Police v Butcher (2014) 119 SASR 509; Police v Cadd (1997) 69 SASR 150; Public Service Board of NSW v Osmond (1986) 159 CLR 656; Robinson Helicopter co Inc v McDermott (2016) 90 ALJR 679; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Rowland v Police (2001) 79 SASR 569; Wainohu v NSW (2011) 243 CLR 181, applied. Tazroo v Police [2002] SASC 155, discussed. -- 2 of 18 -- POLICE v SHAH [2025] SASC 47 Magistrates Appeal: Criminal 1 GRAY J (ex tempore): This matter concerns an appeal by the Commissioner of Police following the acquittal of the respondent. The acquittal the subject of this appeal concerns an alternative charge of driving a vehicle recklessly or at a speed or in a manner which is dangerous to any person.1 2 It was alleged that on 17 June 2023, the respondent drove a Toyota sedan on Fredrick Road, Royal Park at a speed of about 123 kilometres per hour, when the speed limit was 60 kilometres per hour. The respondent was charged on information filed on 11 July 2023, with having committed the offence of driving at extreme speed.2 The statutory alternative verdict available for the charged offence,3 was the offence of driving a vehicle recklessly or at a speed or in a manner which is dangerous.4 3 On 19 December 2024, following a trial, the learned Magistrate acquitted the respondent of both the charged offence and the alternative offence and published written reasons for his decision.5 The appellant did not appeal the acquittal on the charged offence, but appealed against the acquittal on the alternative offence. An appeal lies by way of right pursuant to s 42 of the Magistrates Court Act 1991 (SA) (‘Magistrates Court Act’). 4 The appellant appeals on two grounds. The first is that the learned Magistrate erred in acquitting the respondent of the alternative count,6 on the basis that the respondent had discharged the onus of establishing proof to the contrary of a fact asserted by the evidentiary certificate marked as Exhibit P1. The second ground of appeal is that the learned Magistrate’s reasons are inadequate.7 The evidence at trial and finding of the learned Magistrate 5 The prosecution case was that the speed of the respondent’s vehicle was detected and determined to be 123 kilometres per hour by a static camera. The prosecution case was that the length of the road in question was at the time of the offence a section of road on which there was a speed limit of 60 kilometres per hour.8 This camera was known as ‘Camera 285’. It was also part of the prosecution 1 Contrary to s 46(1) of the Road Traffic Act 1961 (SA) (‘RTA’). 2 An offence against s 19ADA(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). 3 CLCA s 19B. 4 RTA s 46(1). 5 Appellant’s Appeal Book being Exhibit A1 at 66-74. Judgment of Magistrate Davis made on 19 December 2024 at [60]. 6 Being the offence against s 46 of the RTA. 7 See Notice of Appeal (FDN 1). 8 This allegation was said to have been proved by the provisions of regulation 68(a) of the Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) (‘RT Ancillary Regulations’). Although the respondent contended at trial that there was proof to the contrary of this fact, the learned Magistrate having considered the affidavit and oral evidence of Traffic and -- 3 of 18 -- [2025] SASC 47 Judgment Author 2 case that Camera 285 was not located at an intersection, marked foot crossing or level crossing, but rather on a section of uninterrupted road.9 The key issue in dispute in the trial was whether the prosecution had proved that the respondent’s vehicle was travelling at the alleged speed of about 123 kilometres per hour. 6 The prosecution relied on photographs of the respondent’s vehicle taken by Camera 285, identifying the speed of the vehicle at the time along with five evidentiary certificates being Exhibits P1, P2, P2(1), P3 and P3(1). 7 The issue arising on the appeal concerns the factual findings made by the learned Magistrate concerning Exhibit P1. 8 Exhibit P1 was a certificate issued by Inspector Jaimi Burns on 10 September 2024 which certified three matters pursuant to s 79B(10)(b) and (c) of the RTA: 1. That Camera 285, being a “REDFLEXred-speed HDX system manufactured by Redflex Traffic Systems Pty Ltd, linked to and used in conjunction with an induction loop vehicle detector … that formed part of a traffic speed analyser used at Frederick Road, ROYAL PARK (location code 158) between 12.01am and 11.59pm on 17 June 2023 was a photographic detection device as approved under regulation 29 of the Road Traffic (Miscellaneous) Regulations 2014” (‘RT Regulations’). 2. The requirements of the RTA and “the regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of” Camera 285 during the period referred to in clause 1”; and 3. That Camera 285 “was designed and set to operate in accordance with a specified system as set out in regulation 33” of the RT Regulations during the period referred to in clause 1. 9 The Magistrate found that Camera 285 was an approved photographic device for the purpose of an offence against s 46 of the RTA and that clause 1 of Exhibit P1 could therefore be relied upon in relation to the alternative offence.10 10 This appeal concerns the respondent’s submission before the learned Magistrate that there was “proof to the contrary” in relation to Exhibit P1.11 Neither party on appeal was able to indicate whether in the Magistrates Court the defence asserted there was proof to the contrary in respect of both clause 2 and clause 3 of Exhibit P1, or whether the defence was based only on clause 3.12 The appellant submitted that on appeal this Court should consider both clauses and the Investigations Officer Robert Henty, who was the only witness to be called by the prosecution, held based on that evidence and other documentary evidence that the proof to the contrary had not been established. 9 Appellant’s Submissions at [7]. 10 Exhibit A1 at 72. Judgment of Magistrate Davis dated 19 December 2024 at [45]. This finding is not challenged. 11 As discussed below, the learned Magistrate considered the matter by reference to clause 3 only. 12 This matter was not made clear in the written submissions of the defence filed in the Magistrates Court (Exhibit R1). -- 4 of 18 -- [2025] SASC 47 Judgment Author 3 respondent did not speak against that approach. In the Magistrates Court, the respondent relied upon the following evidence: • A South Australia Police document (form RF1015) headed “Digital Red Light / Speed Camera Disposition Sheet” (‘Disposition Sheet’) tendered as part of Exhibit D1. The Disposition Sheet related to testing which had been performed on Camera 285 on 16 June 2023 at 9.30am (the day prior to the date of the alleged offence). • A heading within the Disposition Sheet stated as follows: “TESTING (Regulation 32, Road Traffic (Miscellaneous) Regulations 2014)”. Under this heading a person identified as “S. Craig” stated that they certified that on 16 June 2023 that they had: “… tested & checked the programming of a REDFLEXred-speed HDX system manufactured by Redflex Traffic Systems Pty Ltd, linked to and used in conjunction with an induction loop vehicle detector” and that Camera 285 “was set to operate and was tested, so that two (2) images were obtained with a programmed delay between each image. The date, time and location (code) on each image was correct.” • There was then another heading within the Disposition Sheet which stated as follows: “INDUCTION LOOP TEST | KEY: LT – Left Turn S – Straight RT – Right Turn”. Immediately under this heading the following was stated: “(Regulation 32, Road Traffic (Miscellaneous) Regulations 2014).” Following this heading the Disposition Sheet contained information which indicated that there had been two tests performed on Camera 285: one at 9.33am (in Lane 2) in which the testing vehicle’s speedometer was 41 km per hour and Camera 285’s reading was 37 km per hour; a second at 9.35am (in Lane 2) in which the testing vehicle’s speedometer was 51 km per hour and Camera 285’s reading was 47 km per hour. This section of the Disposition Sheet was signed by two persons: the run through driver (M Gundlach) and the camera operator (S Craig). • Oral evidence of Inspector Burns in which she: − confirmed that she had signed Exhibit P1; − that her usual practice is to review an “evidence package from ENB, Expiation Notice Branch, which includes disposition statement from the operators, a series of photos, and so I refer to those and a RAA certificate to ensure that everything under those sections are correct and met, and then I sign the certificate to say that it has been operated and tested with regards to the legislation, the regulations”13; 13 Exhibit A1 at 60 – 61. Trial Transcript 23 October 2024 at 6–7 (‘Transcript’). -- 5 of 18 -- [2025] SASC 47 Judgment Author 4 − that the Disposition Sheet was a document she had regard to when signing Exhibit P1;14 − that she also had regard to four photographs of the test vehicle, an RAA speed accuracy report and two photographs of the offending vehicle (contained within Exhibit D1) when signing Exhibit P1;15 − that she had regard to the applicable legislation and regulations when signing Exhibit P1;16 − that the only other document, in addition to those contained within Exhibit D1, which she had regard to for the purposes of signing Exhibit P1 was the relevant expiation notice.17 11 Neither S Craig nor M Gundlach who had signed the Disposition Sheet (Exhibit D1) were called to give evidence. 12 It is not in dispute that regulation 3218 concerns the operation and testing of photographic detection devices for offences committed at intersections, marked foot crossings or level crossings. Regulation 3319 concerns the operation and testing of photographic detection devices for offences committed other than at intersections, marked foot crossings or level crossings. 13 The difficulty for the prosecution case was that the alternative charge involved an offence other than at an intersection, marked foot crossing or level crossing. The certificate being Exhibit P1 referred to compliance with the applicable regulation for such an offence being regulation 33. However, the Disposition Sheet, which formed part of Exhibit D1, referred to regulation 32. 14 The Disposition Sheet contains a reference to the testing being conducted on 16 March 2023. The Disposition Sheet also contains a reference to the previous induction loop test key conducted on 19 March 2023. When this issue was raised by the Court on appeal, counsel for the appellant submitted that that was a typographical error. The respondent did not seek to make submissions on this matter. That error did not appear to be part of the defence case in the Court below. For the reasons that follow, it is not necessary to address this issue further. 15 The learned Magistrate found that the evidence upon which the respondent relied meant that the “defence had discharged its onus of proving evidence to the contrary of a fact asserted by Exhibit P1”. The learned Magistrate then held that 14 Exhibit A1 at 61. Transcript at 7. 15 Exhibit A1 at 61-62. Transcript at 7-8. 16 Exhibit A1 at 62. Transcript at 8. 17 Exhibit A1 at 63. Transcript at 9. 18 RT Regulations r 32. 19 Ibid r 33. -- 6 of 18 -- [2025] SASC 47 Judgment Author 5 Exhibit P1 “cannot stand” and the respondent was not guilty of the alternative charge.20 16 In reaching this conclusion the learned Magistrate held that the test required by regulation 32 and regulation 33, even if they are “identical in practical terms” are tests “designed to be conducted in respect of two similar, but nevertheless different, regulatory contexts”.21 The learned Magistrate held that there was a need for “strict compliance” by the police officers with necessary procedures, including the signing of certificates by reference to disposition sheets and other such procedural steps, as these provide “important safeguards to the proper signing of certificates”.22 17 Following the finding in relation to Exhibit P1, the learned Magistrate did not make any findings as to the speed to which the respondent’s vehicle was travelling. In relation to the remaining evidentiary certificates being Exhibits P2, P2(1), P3 and P3(1), the learned Magistrate held that these “merely provide proof that the device was tested by comparison with the speedometer of another vehicle, which had itself been tested”.23 The appellant on the appeal did not challenge the manner in which the learned Magistrate dealt with the remaining evidentiary certificates. General principles 18 The appellant’s right of appeal arises under s 42 of the Magistrates Court Act and is by way of rehearing. It is not an appeal de novo and as such the appeal usually proceeds on the documents albeit with the power to receive further evidence.24 In this case, no additional evidence was called. The facts are largely uncontentious. The matter proceeded by way of submissions concerning the law and facts based upon the transcript and the exhibits. 19 A court hearing an appeal is required to conduct a real and independent review of the evidence put before the trial Magistrate and to come to its own conclusions.25 The court must, however, make due allowance for the advantage of the Magistrate in seeing and hearing the evidence at trial.26 The court should bear in mind that it did not hear or see the witnesses, and it should not interfere with the Magistrate’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony” or they are “glaringly improbable” or “contrary to compelling inferences”.27 20 Exhibit A1 at 74. Judgment of Magistrate Davis dated 19 December 2024 at [59]–[60]. 21 Ibid at [56]. 22 Ibid at [58]. 23 Ibid at [57]. 24 Police v Cadd (1997) 69 SASR 150 at 189; C, GM v Police (No. 2) [2008] SASC 310 at [38]. 25 Rowland v Police (2001) 79 SASR 569 at [36] (Perry J). 26 Fox v Percy (2003) 214 CLR 118 at [41] (Gleeson CJ, Gummow, Kirby JJ). See also, Tazroo v Police [2002] SASC 155. 27 Robinson Helicopter co Inc v McDermott (2016) 90 ALJR 679 at [43] (French CJ, Bell J, Keane J, Nettle J, Gordon J). -- 7 of 18 -- [2025] SASC 47 Judgment Author 6 20 A prosecution appeal should only be allowed in the clearest and most compelling circumstances, for the purpose of correcting manifest error.28 It will only be set aside where the acquittal sought to be impugned was plainly wrong on any reasonable interpretation of the evidence and the inferences which patently arise from it. Where there has been an error of law, a court might be more willing to interfere.29 21 Where the Magistrate’s findings do not rely on what the Magistrate has seen of the witnesses at trial the appeal court can act on any error of the Magistrate in dealing with the objective facts of the case.30 This case proceeded largely based on documentary evidence. Asserted error in the Magistrate’s approach 22 The question arising on this appeal concerns the application of the principles of the decision of the Court of Appeal in Coleman v Police.31 In that case, Mr Coleman was convicted of driving a motor vehicle whilst there was present in his oral fluid a prescribed drug, namely delta-9-tetrahydrocannabinal, contrary to s 47BA(1)(a) of the RTA. The police officer who conducted the test on the oral fluid added a substance from his collection kit to the appellant’s swab sample. The police officer did not know the identity of this substance.32 23 The police officer certified that he complied with cl 7 of Schedule 1 of the RTA. The certificate issued under s 47K of the RTA enabled the Court to find the facts certified as proved unless the appellant provided proof to the contrary.33 On appeal, Mr Coleman argued that there was proof to the contrary rebutting the certificate. The appeal was dismissed, and the Court of Appeal held that the police officer was permitted to add the substance to the oral fluid.34 The addition of an unknown substance to the sample was held to be insufficient to constitute “proof to the contrary”.35 In forming this view the Court36 relied upon the decision of Stanley J in Police v Butcher, who in the context of s 175(3)(ba) of the RTA held:37 The purpose of the certificate is to establish a statutory presumption without regard to the facts. In effect, it reverses the onus of proof. It shifts the onus to the person charged to discharge the evidentiary burden of disproving the facts certified in the document. That is not achieved by pointing to the absence of sufficient evidence of the facts certified before the relevant police officer. The operation of s 175(3)(ba) requires the accused person, if he is to discharge the evidentiary burden that the provision has shifted to him, to prove on the balance of probabilities the contrary of the facts certified. But the shifting of the onus only 28 Being a prosecution appeal from an acquittal. 29 Police v Baker [2015] SASC 110 at [6]-[8] and [25]-[28] (Nicholson J); Police v W, BC [2006] SASC 105 at [12] (White J). 30 Allison v Police [2005] SASC 447 at [80]-[81] (Perry J). 31 [2024] SASCA 30 (‘Coleman’). 32 Ibid at [19]-[21]. 33 See in particular s 47K(3a). 34 [2024] SASCA 30 at [66]–[67] (Lovell and David JJA), and at [107] (Doyle JA). 35 Ibid at [70] (Lovell and David JJA), and at [109] (Doyle JA). 36 Ibid at [39] (Lovell and David JJA), and at [111] (Doyle JA). 37 (2014) 119 SASR 509 at [65] (Stanley J). -- 8 of 18 -- [2025] SASC 47 Judgment Author 7 occurs once the certificate has been admitted into evidence. There can be no issue as to its admissibility on the basis that there is evidence to the contrary of the facts certified in the document. 24 The central finding in Coleman was that, as held by Lovell and David JJA: 38 Proof to the contrary can come from within the prosecution case. However, the absence of evidence, or the inability of a police officer to justify the certification, does not amount to positively demonstrating a matter on the balance of probabilities. 25 In this case, like in Coleman39 the prosecution relied significantly on evidentiary certificates.40 Evidentiary certificates, if properly admitted, enable the court to find the facts certified as proved unless a defendant provides proof to the contrary. Grounds of appeal 26 The appellant appeals on two grounds. The first ground41 contends that the learned Magistrate committed an error of law in finding that the respondent had discharged this onus.42 An error of law in finding that the respondent had discharged this onus. 27 There are a number of statutory provisions which the appellant asserts operate to establish that Exhibit P1, could be relied upon as proof, in the absence of proof to the contrary, of the facts certified within clause 1 of Exhibit P1. A fundamental statutory provision is section s 79B of the RTA. 28 Section 79B of the RTA, in part, provides as follows: 79B—Provisions applying where certain offences are detected by photographic detection devices … (10) In proceedings for an offence against this section or proceedings for a prescribed offence— (a) ….. (b) a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or any other police officer of or above the rank of inspector, and purporting to certify— 38 [2024] SASCA 30 at [41] (Lovell and David JJA. See also [109] (Doyle JA). 39 Ibid. 40 Although, in Coleman v Police [2024] SASCA 30, it was held that even absent the assistance of the certificate, the evidence was sufficient for the prosecution to prove the charge [73] (Lovell and David JJA), [112] (Doyle JA). 41 See Appeal Grounds (FDN 2) at [1]. 42 The second alleged error, discussed below, is that the learned Magistrate failed to provide adequate reasons as to why he considered the respondent had established proof to the contrary of any fact asserted within Exhibit P1. -- 9 of 18 -- [2025] SASC 47 Judgment Author 8 (i) that a specified device used at a specified location during a specified period was a photographic detection device; and (ii) that the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of that device during that period, will be accepted as proof, in the absence of proof to the contrary, of the facts so certified; and (c) if it is also certified in a document of a kind referred to in paragraph (b) that the device was designed and set to operate according to a specified system during that period, it will be presumed, in the absence of proof to the contrary, that the device was designed and set to operate according to that system during that period and did, in fact, so operate. 29 The question arising in this appeal is the meaning of “will be accepted as proof, in the absence of proof to the contrary, of the facts so certified” contained in s 79B(10)(b) and the similar words in s 79B(10)(c). No party suggested on this appeal that there was any distinction to be drawn between the use of the word “accepted” in s 79B(10)(b) and the use of the word “presumed” in s 79B(10)(c). For the reasons that follows, it is unnecessary to decide that issue on this appeal.43 30 The question raised by this appeal is essentially an evidentiary and factual one, that is does the Disposition Sheet (together with the other evidence relied upon by the defence at trial), establish proof to the contrary, of the matters certified in Exhibit P1.44 It is necessary to address this question by reference to each of the clauses contained in Exhibit P1. Clause 1 – approved photographic detection device 31 In relation to clause 1, the learned Magistrate found that Camera 285 was an approved photographic device for the purposes of an offence against s 46.45 That finding is not challenged on the appeal. Clause 2 – operation and testing 32 Clause 2 of Exhibit P1 certified that that the requirements of the RTA and the RT Regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of Camera 285 during the period referred to in clause 1. As was accepted in oral argument by counsel appearing for the appellant, that is a reference to regulation 33. That is clause 2 of Exhibit P1 certified that the photographic detection device, Camera 285, had been 43 If that matter is to be raised it would be more appropriate to address that question in circumstances where the Court had heard submissions on the point. 44 That question is consistent with the approach taken by the Court of Appeal in Coleman v Police [2024] SASCA 30. 45 Exhibit A1 at 72. Judgment of Magistrate Davis dated 19 December 2024 at [45]. This being the matter certified in clause 1 of Exhibit P1. -- 10 of 18 -- [2025] SASC 47 Judgment Author 9 tested in accordance with the requirements of regulations. The regulation that is referred to is by implication regulation 33. 33 The question raised by this appeal is a factual one, did the Disposition Sheet and other evidence, establish on balance of probabilities to the contrary of that asserted in clause 2. That is, did the Disposition Sheet (Exhibit D1) and other evidence establish on balance of probabilities that the photographic detection device, Camera 285, had not been tested in accordance with the requirements of regulation 33. 34 The appellant contends that: 46 Clause 2 of Exhibit P1 certified that the requirements of the RTA and the RT Regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of Camera 285 during the period between 12.01am and 11.59pm on 17 June 2023. Proof to the contrary of this fact required some positive evidence which established that a specific requirement relating to the operation and testing of photographic detection devices under a provision of the RTA or the RT Regulations which applied to Camera 285 at the relevant time had not been complied with. 35 The appellant asserts there was simply no evidence of this nature before the learned Magistrate. The appellant also states that there was “no evidence of any specific deficiency or non-compliance in relation to the testing of Camera 285.”47 36 The appellant relies in support of this submission upon no person who had actually been involved in testing Camera 285 being called to give evidence, that is neither S Craig nor M Gundlach had been called.48 The appellant states that there was no oral evidence as to what tests were performed, how they were performed and how/why they complied (or did not comply) with any legislative requirement.49 37 The appellant further relies upon the fact that it was not possible for the testing required under regulation 32 to be performed on Camera 285 as this testing required the camera to be located at an intersection, marked foot crossing or level crossing which strongly indicated that there was simply a typographical error contained within the Disposition Sheets.50 38 The appellant submits that the substantive requirements of regulation 32(2) and 33(1) are the same with regulation 32(2) simply making adjustments to reflect the fact that the testing is occurring in the context of a device situated at an intersection, marked foot or level crossing.51 46 Appellant’s Submissions at [25]. 47 Ibid at [27]. 48 Ibid. 49 Ibid. 50 Ibid at [28.1]. 51 Ibid at [28.2]. -- 11 of 18 -- [2025] SASC 47 Judgment Author 10 39 The respondent submitted that the respondent successfully established at trial a reasonable basis for doubt by demonstrating irregularities in the testing and certification of Camera 285.52 Caution needs to be exercised in respect of submissions concerning reasonable basis for doubt, in the context of certificates issued pursuant to s 79B(10)(b) and s 79B(10)(c). I say this without any criticism of the respondent who was unrepresented on the appeal but was not disadvantaged by being so, and I refer to the receipt in this Court of wrritten submissions on behalf of the respondent and written submissions filed by the defence in the Magistrates Court. As the Court of Appeal found in Coleman53, and as Stanley J held in Police v Butcher54 the accused person, if he or she is to discharge the evidentiary burden that the relevant statutory provision has shifted to the accused, must prove on the balance of probabilities the contrary of the facts certified. Proof of a matter on the balance of probabilities is a different standard to raising a reasonable doubt. 40 The difficulty however with the submissions advanced by the appellant is that the Disposition Sheet55 states that the photographic detection device, Camera 285, had been set to operate in accordance with the requirements of regulation 32. The question arising on appeal is, is that evidence, together with any other evidence relied upon by the respondent, capable of establishing on balance of probabilities that the photographic detection device had not been set to operate in accordance with the requirements of regulation 33. The Disposition Sheet was tendered by the defence without objection from the prosecution.56 41 The evidence of Inspector Jaimi Burns was to the effect that the only evidence that she had before her in providing the certification in Exhibit P1 was the bundle of documents being the evidence package relative to Exhibit P1, together with the expiation notice.57 That evidence does not necessarily advance the weight to be accorded to the evidence provided in the Disposition Sheet as to the matters in clause 2 of Exhibit P1. 42 The Disposition Sheet positively states under the heading “TESTING (Regulation 32, Road Traffic (Miscellaneous) Regulations 2014” as follows: I certify that at the above location on 16/6/2023 at 09:30 hours, I tested & checked the programming of a REDFLEX red-speed HDX system manufactured by Redflex Traffic Systems Pty Ltd, linked to and used in conjunction with an induction loop vehicle detector. The camera 285 was set to operate and was tested, so that two (2) images were obtained with a programmed delay between each image. The date, time and location (code) on each image was correct. 43 That section of the Disposition Sheet was signed by S Craig. The Disposition Sheet also under the heading “Induction Loop Test” had a subheading which 52 Respondent’s Submissions at [8]. 53 [2024] SASCA 30 at [39] (Lovell and David JA) and at [111] (Doyle JA). 54 [2016]119 SASR 509 at [65]. 55 Which was part of Exhibit D1. 56 Exhibit A1 at 63. Transcript at 9. 57 Exhibit A1 at 62-63. Transcript at 8-9. -- 12 of 18 -- [2025] SASC 47 Judgment Author 11 provided “(Regulation 32, Road Traffic (Miscellaneous) Regulation 2014)”. That section of the Disposition Sheet referred to readings taken on a vehicle speedometer and to camera readings. The run through driver was identified, as was the camera operator. 44 The certification made in Exhibit P1 in clause 2 was that “[t]he requirements of the Road Traffic Act 1961 and the regulations as to the operation and testing of the photographic detection devices were complied with in connection with the use of the device referred to in clause 1 during the period referred to in clause 1”. It was not in dispute that the requirements as to the operation and testing were the requirements of regulation 33. The Disposition Sheet, which was tendered without objection, indicated that testing was conducted in accordance with the requirement of regulation 32. Whilst regulation 32 and regulation 33 are similar, they are not the same. Regulation 32 concerns the operation and testing of photographic detection devices referred to in regulation 29(1)(a) for offences committed at intersections, marked foot crossings or level crossings. Regulation 33 concerns the operation and testing of photographic detection devices referred to in regulation 29(1)(a) or (b)(iii) for offences committed other than at intersections, marked foot crossings or level crossings. 45 Examining the matter of appeal, in my view, on the balance of probabilities the evidence provided by the defence at trial constituted “evidence to the contrary” to the matters certified in clause 2 of Exhibit P1. Although the issue of evidence to the contrary of matters asserted in clause 2 was not addressed in the reasons of the learned Magistrate, this finding can readily be made on appeal as it is a finding based on documents tendered at trial and does not depend upon an assessment of witnesses that the Magistrate had seen or heard at the trial.58 I address clause 2 of Exhibit P1 because it was the subject of argument on appeal and it provides an additional basis which supports the result reached by the learned Magistrate. 46 The evidence before the learned Magistrate in this case upon which reliance could be placed by the respondent to establish “evidence to the contrary” is clearly different to the form of evidence that was considered by the Court of Appeal in Coleman of not being capable of establishing “evidence to the contrary”. 47 In Coleman the matter concerned the addition of a substance to the oral fluid which was collected for testing. What was needed in that case having regard to the relevant statutory provisions, to establish proof to the contrary, was more than evidence that an unknown substance had been added. What was needed was proof that what had been added adulterated the oral fluid sample.59 48 In this case, what was required to establish proof to the contrary, having regard to the relevant statutory provisions, was proof that testing had been conducted other than in accordance with the requirements of regulation 33. In my 58 See further, Allison v Police [2005] SASC 447. 59 See also, Police v Butcher [2014] SASC 85 at [65] (Stanley J). -- 13 of 18 -- [2025] SASC 47 Judgment Author 12 view, the Disposition Sheet states and implies that testing was conducted in accordance with the requirements of regulation 32. That is sufficient to provide proof to the contrary. It is not, as the submissions of the appellant suggest, necessary for evidence to the called by the respondent from the officers who conducted the testing. The Disposition Sheet was tendered without objection at the trial.60 Clause 3 – designed and set to operate 49 Clause 3 of Exhibit P1 asserted that Camera 285 “was designed and set to operate in accordance with a specified system as set out in regulation 33” of the RT Regulations during the period referred to in clause 1.61 50 The question raised by Ground 1 of this appeal in respect of clause 3 is essentially an evidentiary and a factual one. That is, did the Disposition Sheet and other evidence, establish on balance of probabilities to the contrary of that asserted in clause 3. That is, did the Disposition Sheet, together with the other evidence relied upon by the respondent, establish on balance of probabilities that the photographic detection device, Camera 285, had not been designed and set to operate in accordance with a specified system as set out in regulation 33. 51 The appellant submits in relation to clause 3, that clause 3 of Exhibit P1 certified that Camera 285 was designed and set to operate in accordance with the specified system set out in regulation 33 of the RT Regulations between 12.01am and 11.59pm on 17 June 2023. Proof to the contrary of this fact, the appellant submits, required some positive evidence which established that Camera 285 had not been designed and set to operate as required by regulation 33.62 52 The appellant submits that there was simply no evidence of this nature before the learned Magistrate.63 53 Counsel for the appellant, in oral submissions, submitted on appeal that the Disposition Sheet did not provide any positive evidence of non-compliance with regulation 33. The difficulty with this submission is that the Disposition Sheet (Exhibit D1) positively asserted on its face that the photographic detection device, Camera 285, was “set to operate and was tested” in accordance with the requirements of regulation 32. The question arising on appeal is, is that evidence capable of establishing on balance of probabilities that the photographic detection device had not been set to operate in accordance with the requirements of regulation 33. The Disposition Sheet was tendered by the defence without objection from the prosecution.64 60 Exhibit A1 at 63. Transcript at 9. 61 Exhibit A1 at 7. Exhibit P1. 62 Appellant’s Submissions at [26]. 63 Appellant’s Submissions at [27] which refers to both clause 2 and 3 of Exhibit P1. 64 Exhibit A1 at 63. Transcript at 9. -- 14 of 18 -- [2025] SASC 47 Judgment Author 13 54 On appeal, counsel for the appellant accepted that the Disposition Sheet was properly admitted by the learned Magistrate. Counsel for the appellant sought to rely upon it being open to the defence to call further evidence from the officers who conducted the test. 55 I have discussed above the evidence of Inspector Jaimi Burns.65 That evidence does not on my assessment of the evidence alter the weight to be accorded to the evidence provided for in the Disposition Sheet.66 Whilst, the learned Magistrate referred to the evidence of Inspector Jaimi Burns, who signed Exhibit P1, as being relevant to the grounds of the defence, the learned Magistrates reasons do not directly identify the basis of the relevance. 56 The certification in the Disposition Sheet that Camera 285 was “set to operate” as set out under the heading “TESTING (Regulation 32, Road Traffic (Miscellaneous) Regulations 2014)” states and implies that Camera 285 was set to operate in accordance with the requirements of regulation 32. 57 The certification in the Disposition Sheet, which as set out above I would find established on the balance of probabilities that Camera 285 was tested in accordance with the requirements of regulation 32. In my view, that implies that Camera 285 was designed and set to operate in accordance with the requirements of regulation 32. These findings can be made on the balance of probabilities. 58 In my view, it was open to the learned Magistrate based upon the evidence provided by the defence to make a finding on the balance of probabilities that this constituted “evidence to the contrary” to the matters certified in clause 3 of Exhibit P1, and that is the correct finding on the evidence. 59 For the reasons discussed above concerning clause 2, the evidence before the learned Magistrate in this case upon which reliance was placed by the defence to establish “evidence to the contrary” in respect of clause 3, is clearly different to the form of evidence that was considered by the Court of Appeal in Coleman. 60 As discussed above, the difficulty in Coleman was the absence of evidence to provide “proof to the contrary”. There is no such absence of evidence in this case. 61 For these reasons, I would dismiss Ground 1 of the appeal. Inadequacy of reasons 62 The appellant contends on appeal that the learned Magistrate failed to provide adequate reasons as to why he considered the respondent had established proof to the contrary of any fact asserted within Exhibit P1. 65 Exhibit A1 at 62-63. See examination of Inspector Burns at Exhibit A1, transcript 8-9. 66 The admission of Exhibit D1 into evidence was sufficient to establish evidence to the contrary. -- 15 of 18 -- [2025] SASC 47 Judgment Author 14 63 The giving of reasons is a normal incident of the judicial process.67 An appeal concerning the adequacy of the reasons needs to be considered in the context of a busy Magistrate providing reasons for an acquittal on a minor indictable offence following a short trial of less than a day in the Magistrates Court.68 64 A judge though obliged to give reasons is not required to address every submission that was advanced during the course of the trial. Reasons do however need to deal with the principal issues upon which the decision turns. 65 The learned Magistrate’s reasons set out the prosecution’s case. The learned Magistrate then sets out the five grounds of the defence case. The learned Magistrate then sets out his reasons for finding that the respondent was not guilty of the charge of extreme speed.69 That finding is not challenged on appeal. 66 The reasons that are said to be inadequate on appeal are the reasons that the learned Magistrate gives for finding that the defence has discharged its onus of providing evidence to the contrary of a fact asserted by Exhibit P1. The reasons given by the learned Magistrate in respect of this ground are contained at [49] to [60] of the learned Magistrates reasons. 67 The learned Magistrates reasons at [49] recognises that Exhibit P1 is valid on its face to prove an offence against s 46. The learned Magistrate then at [50] identifies the question as being whether the defence has introduced evidence to the contrary. That constitutes an orthodox application of the ratio of Coleman. The learned Magistrate noted at [50] that, the Disposition Sheet provided that Camera 285 was tested during the relevant period and checked in relation to regulation 32, not regulation 33. The learned Magistrate at [51] refers to the difficulty for the prosecution case and then sets out the defence submissions. The learned Magistrate then states:70 [52] It is clear that Exhibit P1 certifies Camera 285 was a photographic detection device as approved under reg 29 and that it was tested and set to operate in accordance with reg 33. However, Exhibit D1, which is the ‘Digital Red Light/Speed Camera Disposition Sheet’ provides that the ‘Testing’ was pursuant to reg 32, which, as indicated above, is limited in its terms to speeding offences committed at an intersection, marked foot crossing or level crossing. Exhibit D1 further provides that the ‘Induction Loop Test’ was also tested pursuant to reg 32. [53] Of additional relevance to this ground is the fact that Inspector Jaimi Burns, who signed Exhibit P1, gave evidence that, apart from the material contained in Exhibit D1, there were no other documents which she had regard to in signing the certificate. 67 Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666-667 (Gibbs CJ); Wainohu v NSW (2011) 243 CLR 181 at [58] (French CJ and Kiefel J). 68 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279. See further, Public Service Board of NSW v Osmond (1986) 159 CLR 656; Wainohu v NSW (2011) 243 CLR 181. The trial proceeded on 23 October 2024. Judgment was delivered on 19 December 2024. 69 Exhibit A1 at 66-72. Judgment of Magistrate Davis made on 19 December 2024 at [4]-[40]. 70 Exhibit A1 at 73. Judgment of Magistrate Davis made on 19 December 2024 at [52]-[53]. -- 16 of 18 -- [2025] SASC 47 Judgment Author 15 68 The learned Magistrate then at [54] through to [58] engages in a further analysis of the regulations, the use of certificates, and the submissions advanced by both the prosecution and defence. Relevantly, the learned Magistrate held at [56], “[t]he tests are designed to be conducted in respect of two similar, but nevertheless different regulatory contexts”. 69 The learned Magistrate then held at [59] “I therefore find the defence has discharged its onus of providing evidence to the contrary of a fact asserted by Exhibit P1.” This again demonstrates that the Magistrate applied the ratio in Coleman in recognising that the effect of the relevant statutory provisions was to place the onus upon the defence. The Magistrate then concluded at [60], “[c]onsequently, in my view, the certificate, Exhibit P1 cannot stand, and I find the defendant not guilty in respect of the charge of excessive speed and its alternative.” 70 The appellant contended that the learned Magistrate failed to provide adequate reasons as to why he considered the evidence relied upon by the respondent71 was evidence which could properly be considered “contrary” to the facts certified in clauses 2 and 3 of Exhibit P1.72 I reject that submission, the learned Magistrate addressed the relevant issue in respect of clause 3,73 particularly at [52]. As I discussed elsewhere, it is unclear what submissions were advanced in respect of clause 2. Whilst, it would have been preferable for the learned Magistrate to specifically identify the weight and application of the evidence of Inspector Jaimi Burns beyond stating that the evidence was relevant, the failure to do so does not amount to insufficient reasons. The reasons do not suggest that the learned Magistrate considered the state of mind of Inspector Jaimi Burns to be relevant.74 71 The appellant submitted that the Magistrate did not provide any analysis of the facts certified in clauses 2 and 3 nor why the evidence was said to be “contrary” to those facts. That submission is made out insofar as it relates to clause 2, however, given the finding in respect of clause 3, it was not essential for the learned Magistrate to separately address clause 2. I note that it is not even known on this appeal whether the defence had asserted that there was proof to the contrary in respect of clause 2 or whether the defence relied on both clause 2 and clause 3 and there being proof to the contrary in respect of those matters.75 I reject the appellant’s submission, insofar as it relates to clause 3. The relevant issue was addressed particularly in paragraph [56] of the learned Magistrates reasons. 71 Which was the evidence contained in Exhibit D1. 72 Appellant’s Submissions at [23]. 73 Exhibit A1 at 73-74. Judgment of Magistrate Davis made on 19 December 2024 at [49]-[60]. 74 The evidence of Inspector Burns demonstrated the relevance of the Disposition Sheet to the issue before the Magistrate. See further, Coleman v Police [2024] SASCA 30 at [37]-[41] (Lovell and David JJA); compare Police v Hanton (2018) 131 SASR 226 at [21] (Peek J). 75 The written submissions of the defence filed before the learned Magistrate which were received on the appeal do not clarify that issue. (Exhibit R1). -- 17 of 18 -- [2025] SASC 47 Judgment Author 16 72 The appellant submits that the learned Magistrate despite being referred to the decision in Coleman by the police prosecutor, did not refer to, nor engage with, the ratio of that case which was binding on the Magistrate.76 I accept that the learned Magistrate did not specifically refer, in the reasons for judgment to the decision in Coleman, however, for the reasons outlined above, I reject the submission that the learned Magistrate failed to apply the ratio of that case. The learned Magistrate specifically referred to the onus being placed by the certificate on the defence and made relevant factual findings, being findings based upon Exhibit D1 that the defence had discharged that onus. 73 I dismiss Ground 2 of the Appeal. Conclusion 74 The appeal is dismissed. I will hear the parties as to costs 76 Appellant’s Submissions at [23]. -- 18 of 18 --