GARY CAIN v COMMISSIONER OF POLICE [2025] SASC 203

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE GRANT) MCCRM-24-023263 Appellant: GARY CAIN Respondent: COMMISSIONER OF POLICE Counsel: MS S WILSON - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: On the papers File No/s: SCCRM-25-025496 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) 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. CAIN v COMMISSIONER OF POLICE [2025] SASC 203 Judgment of the Honourable Justice B Doyle 9 December 2025 TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED The appellant was charged on information with being the owner of a vehicle that was photographed by a photographic speed detection device travelling at 81 kilometres per hour along a road in Mount Barker in a 60 kilometre zone. At the commencement of the trial he applied for an adjournment on the basis that the prosecution’s disclosure was incomplete. That application was refused and the trial proceeded. The prosecution case relied upon evidentiary certificates and the tender of documents. The appellant disputed that one of the certificates proposed to be tendered had in fact been attached to an email by which disclosure had been provided. The magistrate heard evidence from the police officer who sent the email and from the appellant. The magistrate found that the document had been attached to the email. The appellant requested the appeal judge to recuse himself. The appeal judge refused the application, with reasons to be included in the substantive reasons on the appeal. The appellant was granted a further opportunity to make written submissions, in which he refined his grounds of appeal. Held, dismissing the appeal: 1. the magistrate did not deny the appellant procedural fairness or misallocate the disclosure burden; 2. there is no basis to conclude that the prosecution’s disclosure was incomplete; 3. tests and procedures of the kind described in regulations 33 and 34 of the Road Traffic (Miscellaneous) Regulations 2014 (SA) were inapplicable in this case; -- 1 of 14 -- 4. no reasonable apprehension of bias arises from the magistrate having proceeded with the trial following the refusal of the appellant’s application for an adjournment; 5. the refusal of the adjournment was not vitiated by error; 6. the magistrate’s reasons were not inadequate. Australian Road Rules (SA) r 20, 21; Constitution Act 1934 (SA) s 64A; Joint Criminal Rules 2022 (SA) r 76.3; Judiciary Act 1903 (Cth) s 78B; Road Traffic Act 1961 (SA) ss 79B, 175; Road Traffic (Miscellaneous) Regulations 2014 (SA) regs 29, 30, 33, 34, 35; Uniform Civil Rules 2020 (SA) r 217.6, referred to. Brawn v The King (2025) 99 ALJR 872; Cain v Mount Barker District Council [2025] SASCA 128; Canon v Tahche (2002) 5 VR 317; Commissioner of Police v Knight; Commissioner of Police v Metters [2025] SASC 72; Concrete Pty Ltd v Paramatta Design and Developments Pty Ltd (2006) 229 CLR 577; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; MTI v SUL [2012] (No 2) WASCA 87; Police v Bulgin [2010] SASC 143; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; Shaw v Commissioner of Police [2025] SASC 115, discussed. -- 2 of 14 -- CAIN v COMMISSIONER OF POLICE [2025] SASC 203 Magistrates Appeal: Criminal 1 B DOYLE J: The appellant was charged on Information with being the owner of a vehicle that was photographed by a photographic speed detection device travelling at 81 kilometres per hour along Hawthorn Road in Mount Barker in a 60 kilometre per hour zone1 contrary to s 79B of the Road Traffic Act 1961 (SA) (‘RT Act’) and r 20 of the Australian Road Rules.2 2 Following a trial on 21 February 2025, and for reasons given on 17 April 2025 (‘Reasons’), a magistrate found the appellant guilty of that charge and imposed a fine. 3 With one complication, the prosecution case was documentary and comprised the tender of certificates of a kind contemplated by the RT Act. The complication was that the appellant denied having received one such certificate and objected to its tender. That led to some oral evidence about the attachment to an email sent by the police prosecutor to the appellant. The magistrate found that the appellant had in fact been sent the document by email and that, even if that had not been the case, there was a proper case for admission of the document into evidence.3 Recusal application 4 One day before the appeal was to be heard, the appellant filed an interlocutory application seeking that I recuse myself on the basis of apprehended bias. I heard oral submissions at the outset of the hearing on 3 October 2025. I refused the application. Here are my reasons. 5 The test for recusal on the ground of apprehended bias requires the judicial officer to consider whether a fair minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial mind to the resolution of the question that they will be required to decide.4 The ‘double might’ test serves to emphasise that the criterion is concerned with ‘possibility (real and not remote), not probability’.5 1 Rule 21(1) of the Australian Road Rules. 2 Rule 20 of the Australian Road Rules is a prescribed offence within the meaning of the RT Act by reason of reg 30 of the Road Traffic (Miscellaneous) Regulations 2014 (SA). 3 The certificate was not one which was required to be served a number of days before the commencement of the trial if it was to be received into evidence: cf. Commissioner of Police v Knight; Commissioner of Police v Metters [2025] SASC 72. 4 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (‘Ebner’) at [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ). 5 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148 (‘QYFM’) at [37] (Kiefel CJ and Gageler J), citing Ebner at [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ). -- 3 of 14 -- [2025] SASC 203 B Doyle J 2 6 It has been said that logically this entails the following steps: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair minded lay observer.6 7 The basis for the application was that, on 30 September 2025, I presided over the scheduled hearing of an appeal brought by the appellant and his wife relating to proceedings against them in the Environment, Resources and Development Court (‘ERD Court’) by the Mount Barker District Council. 8 About a fortnight prior to that, the appellant and his wife made an application in that proceeding to amend their notice of appeal to raise a ground of appeal concerning the validity of s 64A of the Constitution Act 1934 (SA) (‘new ground’) and seeking a stay or deferral of the appeal whilst s 78B Judiciary Act 1903 (Cth) notices were served. That application was heard by Gray J and refused on 25 September 2025.7 9 On 29 September 2025, the appellant and his wife made an interlocutory application seeking that the appellate proceeding be stayed pending the hearing and determination by the Court of Appeal of an application for leave to appeal against Gray J’s refusal of their interlocutory application. 10 At the hearing before me the following day, the notice of appeal to the Court of Appeal had not been accepted for filing, but I proceeded on the basis that it shortly would be.8 At the outset of the hearing, and in considering the interlocutory application before me, I invited the appellant and his wife to address: • whether the new ground involved a question of law separate and discrete from the other grounds of appeal which challenged the substance and procedural fairness of a decision or decisions made in the ERD Court; and • relatedly, whether it would be more efficient to hear the appeal based on the existing grounds on the basis that, if it came to pass that the Court of Appeal granted leave and allowed the appeal, I could, if necessary, hear the substance of the new ground on a later occasion. 6 QYFM at [38] (Kiefel CJ and Gageler J), citing Ebner at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ). 7 The essential ground of the decision was that even assuming there was an arguable basis to doubt whether s 64A, which seeks to entrench the existence of local government, is a valid ‘manner and form’ provision, the appellants, who had not disputed that the plenary power of the State parliament under s 5 of the Constitution Act 1934 (SA) extended to the creation of local councils, could not articulate how demonstrating the invalidity of s 64A would provide a basis to challenge the correctness of any decisions made in the ERD Court in litigation between them and the Council. 8 The Court of Appeal has subsequently refused leave to appeal: Cain v Mount Barker District Council [2025] SASCA 128. -- 4 of 14 -- [2025] SASC 203 B Doyle J 3 11 The appellant was opposed to the proceeding in the way just described. I then heard submissions from the respondent Council. The respondent was not opposed to an adjournment of the appeal, including for reasons that it had not received any written submissions relating to the existing grounds of appeal. 12 In those circumstances, I decided to adjourn the hearing of the appeal. I directed that the appellants were to file written submissions within 21 days in respect of any of the grounds of appeal that were proposed to be pursued.9 13 In an affidavit in support of the application for recusal, only one appellant in this appeal deposed to the following propositions: (a) first, that I made adverse comments about the credibility or integrity of the grounds of appeal associated with the civil appeal. As I will explain later, that is not an accurate statement; (b) secondly, that I wanted to proceed to hear the appeal notwithstanding that an appeal to the Court of Appeal was already on foot. It is true that my invitation to the appellants to make submissions on the topics identified above might have conveyed (as was the fact) that, on a preliminary basis, I was entertaining proceeding with the appeal with reference to the existing grounds. Whilst I did not ultimately proceed in that way, my preliminary view could not lead a fair minded observer to be concerned I held an adverse view about the appellant that might cause me to deviate from the merits in another context. That is because my preliminary view was an unremarkable one, evidently founded on a desire to make efficient use of time; (c) thirdly, that I wanted to know why it would not be possible to hear the appeal and await the outcome of the Court of Appeal’s decision thereafter. This is correct but, again, unremarkable; (d) fourthly, that it took counsel for the respondent to consent and convince me otherwise, and not proceed with the hearing of the appeal. It is correct that my decision was influenced to a significant degree by the fact that the respondent was content for the appeal to be adjourned. 14 The appellant then deposed that based on my comments in that matter I was ‘pre-disposed to any matter where [the appellant] is involved and … a fair minded person would be of the view that a different judicial officer ought to hear the appeal’. 9 The appellants had been required to file written submissions in that matter by an earlier date, but they had not done so. Accordingly, my direction did not impose some new or unusual burden on the applicants. Indeed, r 217.6 of the Uniform Civil Rules 2020 (SA) makes clear that each party who intends to make submission on the appeal must file written submissions in accordance with the rule applicable thereto. -- 5 of 14 -- [2025] SASC 203 B Doyle J 4 15 The question is whether there is something about the approach I took that might lead a fair minded lay observer to consider that I might decide this appeal other than by reference to its merits. 16 There will be occasions where a judge’s decision about a particular party or individual in another matter, even if unrelated, will give rise to that perception in the mind of a fair minded lay observer. Usually that will be in cases where an adverse credit finding has been made about the party or witness, or where a finding has been made that they have engaged in conduct of a kind that might (at least in the eyes of the fair minded lay observer) cause a judge to bring a particular mindset or prejudice to any later case involving that party or witness. Where the factual issue to be decided in one case is the same or very similar to the factual issue decided in a previous case, there may also be a potential for apprehended bias.10 17 The mere fact that a judge has, in another case, made an adverse ruling or finding against a party or witness will not automatically lead to that consequence.11 Here, I made no finding or ruling adverse to the appellant. I acquiesced in his request that I not proceed to hear his appeal. Whilst I took some convincing that that was the correct course to adopt, and I may have taken a different view if the respondent had not effectively supported it, a fair minded lay observer would take nothing more from those circumstances than that my inclination was to make use of the hearing time. There is no logical reason why that inclination would cause me to have had, let alone remain under the influence of, a view about the appellant which would colour my approach to the present appeal. 18 In written submissions provided on the morning the appeal was scheduled to be heard, the appellant elaborated upon the factual basis for the application in two ways: • first, he submitted that at an earlier hearing of this appeal, on 8 September 2025, I made remarks criticising him for filing 24 grounds of appeal, and further, that I stated that it would ‘cost thousands of dollars’ to bring such an appeal; • secondly, he submitted that in the course of the hearing in the civil matter on 30 September 2025, I made ‘comments, or comments to the effect, that the Applicant’s grounds of appeal (in the draft Appeal grounds – to the Court of Appeal) were weak and so too the grounds of appeal in the substantive appeal before [me]’. 19 It is said that both matters involved the appellant personally and the remarks have given rise to a cumulative impression that I have formed a negative predisposition about the appellant’s litigation generally. 10 See, generally, Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (2022, 7th ed) at [10.210]. 11 MTI v SUL (No 2) [2012] WASCA 87 at [14] (Newnes and Murphy JJA). -- 6 of 14 -- [2025] SASC 203 B Doyle J 5 20 As to the first proposition, what in fact occurred on 8 September 2025 was that: • counsel for the respondent commenced by expressing a concern that there were 39 appeal grounds that were quite general and not specific to the particular matter. Counsel said that the respondent was concerned about the matter being listed for hearing without clarity about the real complaints to be made on appeal; • I said to the appellant that I had not counted the grounds but I inquired of him whether he had had an opportunity to consider the grounds that he would wish to pursue or focus upon at the hearing of the matter; • I asked the appellant whether he understood the respondent’s concern, namely, that it would add to the cost and time involved if 39 grounds were left in that form without being narrowed down, if it later emerged that he ultimately focused on two or three of them. 21 I made no comment to the effect that the appeal would cost ‘thousands of dollars’. I was not explicitly critical of the appellant for having identified so many appeal grounds although I did make the remark, designed to assist the appellant by encouraging him to focus on whatever might be his ‘most promising grounds’, that I doubted whether in the history of appeals 39 grounds had all succeeded. A fair minded lay observer would understand that remark to convey not that I believed there was no merit in his appeal, but rather experience suggests there will be a much smaller number of important or substantial issues arising in an appeal.12 22 The broader context was that I adjourned the hearing of the appeal to allow the appellant the time he requested and, although the time for filing submissions had by that time passed, I allowed the appellant to file written submissions closer to the scheduled hearing (so as to give him more time than the rules contemplate). 23 I do not consider that a fair minded observer might reasonably have apprehended from my conduct during that hearing that I had formed a relevant predisposition against the appellant or his case. A fair minded observer might have understood that I considered that the notice of appeal lacked focus. But it is an ordinary and vital aspect of modern case management that judges encourage parties to focus on the key issues, and doing so could not lead a fair minded observer reasonably to consider that the judge would not decide any arguments ultimately developed by the party other than by reference to the judge’s perception of the legal merits of the argument.13 12 I went on to say that a useful approach might be for the appellant to ask himself if he had one hour to persuade someone why he shouldn’t have been convicted, what would be the points he would focus on. I said that this was not to say he would only have an hour, but that it might help him identify for himself what his best points are. I suggested he elaborate on those grounds in writing. 13 In Concrete Pty Ltd v Paramatta Design and Developments Pty Ltd (2006) 229 CLR 577, Kirby and Callinan JJ said (at [112], references omitted) that: ‘Sometimes judicial interventions and observations -- 7 of 14 -- [2025] SASC 203 B Doyle J 6 24 As to the second contention, I have described earlier what occurred during the hearing on 30 September 2025 of the appellant’s civil appeal. I did not make a comment that either the proposed appeal ground relating to s 64A of the Constitution Act 1934 (SA), or the then-existing appeal grounds, were ‘weak’. Even if I had done so, that alone would not suggest that I might not bring an impartial mind to the hearing of this appeal. But I need not decide that, because as the transcript of that hearing reveals, I expressed no view on the strength of the other grounds of appeal. I simply observed that, contrary to the requirement of the rules, no written submissions had been filed and that unless they were to be abandoned on the basis that the new ground was the ‘main argument’, written submissions should be filed in support of them. 25 Standing back and considering the two hearings cumulatively, I considered that the ‘double might’ test was not satisfied, and that I should not recuse myself. Refinement of appeal grounds 26 Following my recusal ruling, the appellant said that he had not prepared anything for the hearing because he had been involved in a family emergency. The respondent said that it was not opposed to ‘one further adjournment’ but on the basis that if written submissions were not filed there would be an application to summarily dismiss the appeal. 27 Ultimately, whilst there was no clear evidentiary foundation for an adjournment, in view of the respondent’s position, I directed that the appellant have a further opportunity to file written submissions and indicated that, in the absence of an application for an oral hearing, I would decide the appeal on the papers. 28 The appellant ultimately filed written submissions in which he refined his grounds of appeal to raise six contentions, albeit there is an element of overlap between some of them. Before addressing them, it is convenient to set out the evidence relied on before the magistrate. The prosecution evidence 29 The prosecution tendered a ‘Certificate of Operation and Testing of Approved Photographic Detection Device’ dated 27 May 2024 pursuant to s 79B(10)(b) and (c) of the RT Act. 30 That certificate stated that the photographic speed detection device (a ‘REDFLEXradarcam mobile dual radar digital camera system’) used in conjunction with camera number 529 at Hawthorn Road Mount Barker on 2 March 2024 between 1620 and 2037 hours was an approved photographic detection can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.’ -- 8 of 14 -- [2025] SASC 203 B Doyle J 7 device as approved under reg 29 of the Road Traffic (Miscellaneous) Regulations 2014 (SA) (‘Regulations’). It also stated that the requirements of the RT Act and the Regulations as to the operation and testing of photographic detection devices had been complied with. It further stated that the device was designed and set to operate in accordance with a specified system as set out in reg 35 of the Regulations during the relevant period. 31 By reason of s 79B(10)(b) and (c) of the RT Act, the facts certified were to be accepted as proved, in the absence of proof to the contrary, and it was to be presumed, in the absence of proof to the contrary, that the device was designed and set to operate according to the system identified during the relevant period and that it did, in fact, so operate. 32 The prosecution also relied upon a ‘Certificate of Accuracy of Traffic Speed Analyser’ dated 27 May 2024, tendered pursuant to s 175(3)(ba) of the RT Act showing the traffic speed analyser (with the serial number 529) was tested on 2 March 2024 and shown to be accurate to the extent that it measured a vehicle as travelling at 55 kilometres per hour which was, according to its speedometer, registered as travelling at 60 kilometres per hour. A separate certificate pursuant to s 175(3)(b) of the RT Act demonstrated that the speedometer of the vehicle in question was accurate to the extent that whilst it showed a speed of 60 kilometres per hour the vehicle was travelling 57 kilometres per hour. Reading those two certificates together, the traffic speed analyser (serial number 529) was accurate to within two kilometres per hour. In effect, the device understated actual speed by 2 kilometres per hour. 33 The prosecution tendered three photographs pursuant to s 79B(10)(a) of the RT Act on the basis that they were produced from an exposure taken by a photographic detection device and that the regulations in relation to the operation and testing of the device were complied with. The photographs showed the appellant’s vehicle and indicated that it was detected by the traffic speed analyser (serial number 529) to be travelling at 81 kilometres per hour in a 60 kilometre hour zone at 4.33 pm on 2 March 2024. Whilst the denotation of speed in the photographs is in itself insufficient to prove that the vehicle depicted was travelling at that speed, when considered together with the effect of the facts taken to be proved by certificate, they amount to proof that the speed recorded in the photographs was the speed registered by the analyser.14 34 I now address the contentions advanced by the appellant in his written submissions. 14 Police v Bulgin [2010] SASC 143 at [34]-[35] (White J). -- 9 of 14 -- [2025] SASC 203 B Doyle J 8 Ground 1: procedural fairness and misallocation of disclosure burden 35 The trial was listed for hearing on 21 February 2025. On 18 February 2025, the appellant filed an interlocutory application in which he sought a vacation of the trial and that the prosecution provide full disclosure. 36 The magistrate did not accede to the application. The Reasons state that: [5] The defendant did not in any way elaborate on how disclosure was incomplete, but simply maintained that he wanted ‘full disclosure’. Specifically, he either could not, or would not, tell me what specific documents, or classes of documents, he considered needed to be disclosed. [6] Prosecution were adamant that disclosure of the documents to be relied on by them at trial were disclosed by email from Brevet Sergeant Fred Keal on 3 September 2024. The material said to be attached to the email was what I will describe as a ‘certificate case’ typically conducted by prosecution for such speeding offence trials. [7] The defendant acknowledged receipt of that email but maintained disclosure was not complete. [8] I declined to adjourn the trial. There was no evidence before me that disclosure was not complete. Indeed, on the material before me at that time, it appeared to be complete. [9] I note that the defendant had been given leave by Magistrate Schulz at a pre-trial conference on 16 October 2024 to issue a subpoena on the Commissioner of Police seeking copies of the operator’s log and/or running sheet of the photographic detection device in position on Hawthorn Road at Mt Barker on 2 March 2024 and any operation manual for the photographic detection device. I have reviewed the transcript of that hearing and, in my view, Her Honour gave quite detailed instructions to the defendant on how to draft and issue the subpoena. [10] The defendant has not issued any such subpoenas and, in my view, cannot reasonably complain that he does not have those materials if that was what he was referring to as outstanding disclosure. [11] I was also concerned about the very late filing of the application which would inevitably lead to the adjournment of the trial. The defendant claimed he had been in Coober Pedy and unable to file an application any earlier. Even if I accepted he was busy in Coober Pedy from 28 November 2024 (the date of the second and final pre- trial conference) until mid-February 2025 that should not have prevented the defendant from filing an application by email at an earlier date. [12] There was nothing in the affidavits filed by the defendant that caused me concern about whether the trial should proceed or not. Specifically, I did not consider on the material that was before me that the defendant would have suffered a denial of natural justice if he had to proceed on 21 February 2025. [13] The trial has been listed for months and Mr Cain has had more than enough time to raise disclosure concerns well ahead of the trial date. If there was a denial of natural justice by proceeding, which I did not consider there was, it was, with respect, largely or wholly of the defendant’s own making by the filing of the application so late. -- 10 of 14 -- [2025] SASC 203 B Doyle J 9 [14] The alleged offending is very much a matter at the lower end of the offending scale and I was reluctant to adjourn such a trial on the morning to a further day given that there had been six (6) prior court dates. [15] In light of all of the above, I refused the application and the trial proceeded. 37 The appellant complains that by reasoning in this way, the magistrate reversed the burden on the prosecution to make disclosure. He submits it was not for him, as a self-represented litigant, to adduce evidence of incompleteness before disclosure was made. He contends that the proper course was to require the respondent to certify completeness and answer the complaint with specificity and, if necessary, produce the omitted materials or explain their absence. 38 In my view, the magistrate did not impermissibly reverse any burden. In order to persuade the Court that disclosure was incomplete it was necessary for the appellant to raise a doubt as to its completeness. Until he did, or unless the Court was otherwise persuaded that the interests of justice required action to be taken, there was no warrant for the Court to take any step. In some cases, the incompleteness of disclosure may be manifest from inferences that can be drawn from what has been disclosed. In the present case, it is speculative to conclude that there exists any material available to the prosecution that might reasonably be expected to assist the case for the defence. 39 As is alluded to in the Reasons, at a pre-trial hearing, the appellant identified that he wanted the ‘log of the operator’, the ‘operator’s run sheet’, and the ‘operation manual for the camera’. At that time, the prosecution had provided the documents upon which it proposed to rely by email but had not filed a Form 71e Evidentiary Material Brief. The presiding magistrate made an order on 16 October 2024 requiring the prosecution to serve a Form 71e within 14 days and authorising the appellant to issue a subpoena to the Commissioner of Police for various materials of the kind he had raised. Notwithstanding that the magistrate made clear that the appellant would need to have a subpoena prepared, issued and served, the appellant chose not to take that step. 40 I reject the argument that the appellant was denied procedural fairness. He was given appropriate assistance. He failed to discharge his onus of demonstrating that the trial should not proceed, and he has failed to demonstrate on appeal that there was any failure in the making of disclosure by the prosecution, much less that it was material to his conviction.15 Ground 2: incomplete Form 71e – running sheet, offence images, e-records and test outputs not disclosed 41 The appellant contends on appeal that the prosecution should have included: • the operator’s running or session sheet; 15 cf. Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20. -- 11 of 14 -- [2025] SASC 203 B Doyle J 10 • the complete set of offence photographs/electronic records (all frames and metadata including any secondary check); • the testing/verification suite: pre- and post-session checks and the periodic 28 day test outputs (video segment and still image) together with date/time/location coding checks and any fault/rejection records; and • the underlying documents relied upon for any s 175(3)(ba) certificate (testing performed and accuracy to a stated extent for the relevant deployment window). 42 The respondent submits that having regard to the purpose of the evidentiary aids available under the RT Act, there is no necessity to make disclosure of the underlying tests and documentation. I accept that submission. I leave to one side a case in which documents of the kind described above exist and disclose a basis for rebutting any statutory aid to proof or presumption that may be available and are proposed to be relied upon by the prosecution. There is no reason to think any such documents exist in this case. Nor is there any reason to think that a miscarriage of justice has been caused in this case by reason that there was some omission in the Form 71e. Ground 3: non-compliance with statutory regime 43 The appellant contends that it has not been established that checks and testing periodically required under the Regulations have been carried out. However, the requirements to which the appellant refers in his written submissions are those made applicable by regs 33 and 34 to devices referred to in regs 29(1)(a) and (b). The device used in the present case was approved under reg 29(1)(c). The requirements applicable to that device are found in reg 35. Compliance with those requirements was established by a certificate given under s 79B of the RT Act, and tendered at the trial. Ground 4: apprehended bias / unfairness 44 The appellant complains that the magistrate determined a contested interlocutory issue and immediately proceeded to trial, giving rise to a risk, in the mind of the fair minded lay observer, that the magistrate might not bring an impartial mind to the issues. Alternatively, he submits that the ‘sequencing’ denied him a fair opportunity to ‘adjust trial conduct to the ruling’. He also complains that reliance upon what occurred at a pre-trial hearing occurred in breach of r 76.3(5) of the Joint Criminal Rules 2022 (SA). 45 There was nothing unusual or untoward in the magistrate deciding whether to vacate the trial, or to grant any other interlocutory relief sought by the appellant, and, subject to the outcome, proceeding to hear the trial. A fair minded lay observer would not entertain a concern that this manifested a mindset that might lead the magistrate to decide issues other than by reference to their merits. Nor is -- 12 of 14 -- [2025] SASC 203 B Doyle J 11 there any demonstrated unfairness, in the relevant sense, arising from the course that was adopted. 46 As for r 76.3(5), it must be understood in context. It is designed to ensure that there is an open discussion of the possibility for resolution at a pre-trial conference, without parties feeling constrained that any concessions that they might be prepared to make will be deployed against them at a trial if resolution is unsuccessful. The rule is not designed to preclude reference being made to information conveyed by, or orders made by, a magistrate in such hearings, if that is relevant to resolving an issue that later arises. That is all that occurred here. The magistrate presiding at the pre-trial conference authorised a subpoena to issue to the Commissioner of Police and gave the appellant an explanation of the process for issuing a subpoena. Ground 5: refusal to adjourn, miscarriage of discretion 47 The appellant submits that the magistrate’s refusal to adjourn the matter at the request of a self-represented litigant involved a miscarriage of discretion in that the magistrate: • acted on a wrong principle by requiring him to prove ‘incompleteness before compelling the prosecution to disclose’; • failed to consider relevant matters including the asymmetry of knowledge, the duty to revise disclosure and the defence’s need to identify witnesses for subpoena; and • produced practical injustice because it materially impaired trial preparation and cross-examination strategy. 48 There is no substance to these contentions. As earlier explained, the magistrate did not impermissibly reverse any onus. The onus to make complete disclosure lay on the prosecution,16 but the onus of demonstrating that the interests of justice required some step to be taken, or that they required the proceedings to be adjourned, on the basis that disclosure was incomplete, lay on the appellant. The magistrate did not otherwise err in deciding whether to grant a procedural indulgence to the appellant. The prospect that, had subpoenas been issued, witnesses or documents would have been produced that would have rebutted any presumption or proposition established by the aids to proof tendered, remains entirely speculative. Ground 6: inadequate reasons 49 This complaint centres upon the magistrate’s conclusion that disclosure appeared complete (Reasons [8]). In particular, the appellant submits that the Reasons do not confront and explain why the absence from the prosecution’s 16 The duty in question is owed to the Court: see, eg, Canon v Tahche (2002) 5 VR 317 at [58] (Winneke P, Charles and Chernov JJA). -- 13 of 14 -- [2025] SASC 203 B Doyle J 12 disclosure of some of the documents dealt with under grounds 2 and 3 did not demonstrate incompleteness. 50 In my view it is tolerably clear that the magistrate concluded that, unless the documents were to be relied upon by the prosecution or might by reason of their content assist the appellant in defending the charge, they were not required to be disclosed, and that there was no reason to think that any documents of that kind existed. The magistrate noted that the appellant could have, but chose not to issue, a subpoena seeking some of the documents. Documents of the kind raised under ground 2 do not appear to have been raised before the magistrate. For the reasons I have given they would have been irrelevant. 51 Having regard to the nature of the offence and the live issues, the Reasons cannot be said to be inadequate. They reveal the essential reasoning of the magistrate. They have not frustrated the appellate function.17 Disposition 52 The appellant has not demonstrated that his conviction was affected by any material error. Nor is there any reason to doubt the soundness or safety of the conviction. The appeal must be dismissed. 17 cf. Shaw v Commissioner of Police [2025] SASC 115 at [76]. -- 14 of 14 --