KRISTIAN ZEFI No Attendance v COMMISSIONER OF POLICE [2024] SASC 42

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE FISHER) MCCRM-23-000476 Appellant: KRISTIAN ZEFI No Attendance Counsel: MS K STANLEY - Solicitor: PERROTTA LEGAL Respondent: COMMISSIONER OF POLICE Counsel: MS E FERGUSON - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 16/02/2024 File No/s: SCCRM-23-039780 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. ZEFI v COMMISSIONER OF POLICE [2024] SASC 42 Judgment of the Honourable Justice Blue 27 March 2024 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT – GROUNDS MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY The appellant appeals against his conviction of driving a motor vehicle at a speed exceeding a relevant speed limit by 45 kilometres per hour or more in contravention of subsection 45A(1) of the Road Traffic Act 1961 (SA). The conviction was based on evidence given by affidavit by Senior Constable Greenwood that he operated a LIDAR traffic speed analyser in respect of a Holden Commodore driven by the appellant on Seacombe Road, Seacliff Park, which indicated a speed of 111 kilometres per hour. The appellant appeals on two grounds: 1 the Magistrate erred in finding that the evidence of Senior Constable Greenwood was sufficient evidence to establish the speed limit that applied to his vehicle; 2 the Magistrate erred in reversing the onus of proof onto the defendant to prove that the speed detection device was not in proper order and/or operated properly. Held (allowing the appeal): 1 There was sufficient evidence to establish the speed limit that applied to the appellant’s vehicle: ground 1 is not established (at [44]). -- 1 of 16 -- 2 The Magistrate erroneously reversed the onus of proof onto the defendant to prove that the traffic speed analyser was not properly operated: ground 1 is not established (at [57]). 3 There was no evidence as to the operation or proper operation of the traffic speed analyser and it was not open to the Magistrate to find the charge proved (at [70]). 4 An acquittal must be substituted for the conviction rather than remittal to the Magistrates Court for a fresh trial (at [60], [72]). -- 2 of 16 -- ZEFI v COMMISSIONER OF POLICE [2024] SASC 42 Criminal Appeal: Single Judge 1 BLUE J: Kristian Zefi appeals against his conviction of driving a motor vehicle at a speed exceeding a relevant speed limit by 45 kilometres per hour or more in contravention of subsection 45A(1) of the Road Traffic Act 1961 (SA) (the Act). 2 The conviction was based on evidence given by affidavit by Senior Constable Greenwood that he operated a LIDAR traffic speed analyser in respect of a Holden Commodore driven by Mr Zefi on Seacombe Road Seacliff Park, which indicated a speed of 111 kilometres per hour. 3 Mr Zefi appeals on two grounds: 1 the Magistrate erred in finding that the evidence of Senior Constable Greenwood was sufficient evidence to establish the speed limit that applied to his vehicle;1 2 the Magistrate erred in reversing the onus of proof onto the defendant to prove that the speed detection device was not in proper order and/or operated properly.2 Background 4 On 26 October 2022 Senior Constable Lee Greenwood was based at Sturt Police Station attached to the Road Policing Section of Southern Tactical. He commenced his shift at 3 pm. 5 At about 3.25 pm Senior Constable Greenwood conducted a shift field test on a LIDAR traffic speed analyser, being a Laser Technology Inc LTI 20/20 TruSpeed Laser serial number TS011380 (the LIDAR). The first part of the field test involved ensuring the following: 1 that there was no damage to the LIDAR; 2 that all calibration seals were intact; and 3 that the LIDAR was within 12 months of the last calibration (which was 6 December 2021). 6 Senior Constable Greenwood then turned the device on. He observed that the device displayed that it had conducted its ‘self-test’ correctly without errors (test 4). 1 Ground 1 of the Grounds of Appeal. 2 Ground 2 of the Grounds of Appeal. -- 3 of 16 -- [2024] SASC 42 Blue J 2 7 Senior Constable Greenwood conducted a fixed distance zero velocity test at the range at Sturt Police Station, which the device passed (test 5). He conducted a scope alignment test, which the device also passed (test 6). 8 Senior Constable Greenwood completed a standard form entitled Speed Detection Equipment Field Test Results, selecting ‘pass’ in respect of tests 1, 2, 4, 5 and 6 and recording the calibration date as 6 December 2021 (the Field Test Form). This form became exhibit P4. 9 Shortly before 7.40 pm Senior Constable Greenwood parked his police vehicle facing east at 231 Seacombe Road Seacliff Park. He began conducting static laser duties for vehicles travelling both east and west. 10 At 7.40 pm Senior Constable Greenwood saw a white Mitsubishi Triton followed by a black Renault Clio travelling west at what appeared to be about 60 kilometres per hour. There were no vehicles travelling east at that time. 11 Senior Constable Greenwood saw a third vehicle, being a dark Holden Commodore sedan [the vehicle driven by Mr Zefi], about 200 metres east. It was travelling west with a fourth vehicle close behind. He observed the Commodore travelling at high speed towards him and it was very quickly increasing its distance ahead of the fourth vehicle to its rear. 12 By this stage the first and second vehicles, the Triton and the Clio, had passed Senior Constable Greenwood and travelled further west out of sight. 13 Senior Constable Greenwood activated the LIDAR and detected the Commodore. At this stage the fourth vehicle was about 100 metres behind the Commodore. The LIDAR displayed a speed of 111 kilometres per hour and a distance of 81.7 metres. A photograph of the rear of the LIDAR, showing it displaying that speed and distance, was tendered as exhibit P2. 14 Senior Constable Greenwood followed and pulled over the Commodore, which was being driven by Mr Zefi. 15 At 10.45 pm Senior Constable Greenwood conducted the same field test of the LIDAR that he had conducted at 3.25 pm, with the same results. He completed the Field Test Form (exhibit P4). The trial 16 The prosecutor tendered an affidavit affirmed by Senior Constable Greenwood on 20 March 2023 (exhibit P1). The affidavit, amongst other things, stated the facts as set out in the Background section above. The prosecutor tendered both the photograph of the LIDAR display referred to above (exhibit P2) and the Field Test Form referred to above (exhibit P4). -- 4 of 16 -- [2024] SASC 42 Blue J 3 17 The prosecutor tendered a calibration certificate in respect of the LIDAR dated 6 December 2021 certifying its accuracy within a margin of error of +2 kilometres per hour and -3 kilometres per hour (exhibit P5). The prosecutor also tendered a Certificate of Accuracy pursuant to section 175(3)(baa) of the Act signed by Inspector Eicher on 22 March 2023, certifying in the same terms as exhibit P5, and signed by Senior Constable Greenwood on 20 March 2023 certifying that the speed of the motor vehicle driven by Mr Zefi was measured on 26 October 2022 using the LIDAR (exhibit P3). There were agreed facts that: 1 Senior Constable Greenwood used the LIDAR to measure the speed of Mr Zefi’s vehicle on 26 October 2022 (this was in the same terms as Senior Constable Greenwood’s certificate in exhibit P3); 2 Mr Zefi was the driver of the Commodore. 18 The prosecution closed its case. Mr Zefi elected not to give or adduce evidence. 19 In her closing address, the prosecutor relied upon these certificates and presumptions under the legislation to prove the case. 20 In her closing address, counsel for Mr Zefi submitted that the prosecution had not proved the speed limit that applied at the point of the road where the Commodore was travelling. She also submitted that the prosecution had not proved that the LIDAR was properly operated by Senior Constable Greenwood. In this respect, she cited the decision in Police v Young.3 21 The Magistrate granted leave to both parties to make written submissions on the two issues raised by counsel for Mr Zefi, which they did. The Magistrate’s reasons 22 The Magistrate summarised the facts, the evidence and the issues. 23 In relation to proof of the speed limit, the Magistrate said: The defendant also submitted that the Court could not rely on the evidence of SC Greenwood to prove that the speed limit applicable to the defendant was 60 kph. It was submitted that there was no evidence of where the speed limit signs were located, in his affidavit. In the absence of that evidence the assertion that the speed limit was 60 kph amounted to hearsay or belief and incapable of proving beyond doubt that the speed limit was 60 kph. Further, it was submitted that the reference to speed limit was made in regard to the two first vehicles that he observed and not the defendant’s vehicle which could have been in a different part of the road where some other speed limit applied. 3 [2012] SASC 210; (2012) 114 SASR 567. -- 5 of 16 -- [2024] SASC 42 Blue J 4 I do not agree with the defendant’s submission in this respect. In my view the evidence of SC Greenwood is sufficient evidence to establish that the speed limit was 60 kph. His statement that the road was a “signed 60 kph zone” is properly construed, in my view, as evidence that there was a 60 kph sign applying to the length of road in question within the meaning of rule 21 ARR. That evidence was not challenged and there is nothing in the material before me that would raise any concern about the reliability of that evidence. I am satisfied, beyond doubt, that the speed limit on the length of road that the defendant was driving was 60 kph. 24 In relation to proof of correct operation of the LIDAR, the Magistrate said: It was further submitted that prosecution had not proven beyond doubt that SC Greenwood operated that traffic speed analyser correctly. The defendant referred to the decision of Peek J in the matter of Young and submitted that case was authority for the proposition that it is incumbent on the prosecution to prove beyond reasonable doubt that the traffic speed analyser was used correctly. At Young [2012) SASC 210 paragraph [59] Peek J says “the fourth category involves impugning the process of the operation of the device during the speed detection process. As further explained below, the certificate procedure does not apply to this aspect of the matter and the prosecution must prove correct operation by the operator beyond reasonable doubt”. Further, at [103] His Honour notes the obvious analogy is that a rifle may be perfectly made and accurate within itself, but if it is not skilfully used on a particular occasion the target will likely be missed”. SC Greenwood, in his affidavit, makes no mention of any personal training to use the Lidar device. He does explain the tests he conducted on the day before and after use to establish that the device was working correctly. In relation to the detection of the defendant’s speed he states in his affidavit “I activated the Lidar and detected the Holden Commodore at a speed of 111 kph at a distance of 81.7 m, at the time of detection there were no vehicles ahead of the commodore westbound in my view, no vehicles eastbound or alongside. The vehicle that had initially been to the rear of the Commodore was now about 100 metres to the rear.” He does not purport to explain what the correct operation of the Lidar is and that he correctly operated it. In those circumstances it is submitted by the defendant that prosecution have not discharged its onus to prove that the operator operated the Lidar correctly beyond reasonable doubt. In my view the defendant has wrongly sought to elevate the remarks of Peek J into establishing, as an element of the offence, that the Lidar was correctly operated. His Honour’s comments in my view are properly understood as stating the uncontroversial proposition that where the correct operation of the Lidar is impugned during the trial, it is then incumbent on the prosecution to prove beyond doubt that the device was operated correctly. I refer to the context of his Honour’s remarks, namely “impugning the process of the operation of the device during the speed detection process”. In this matter, the affidavit of SC Greenwood was tendered by consent and its content unchallenged. No request was made to cross-examine SC Greenwood. It was not submitted that the affidavit disclosed on its face that he had incorrectly operated the Lidar. Nothing was done or said during the trial to impugn the process of the operation of the device. To take up his Honour’s analogy, bearing in mind the risks of argument by analogy, if a person was to give unchallenged evidence that he picked up an accurate rifle and hit the target he was aiming at, no issue that he used the rifle skilfully would arise. Having regard to the unchallenged evidence of SC Greenwood, I find that his evidence established beyond reasonable doubt that the defendant was travelling in 111 kph at the relevant time. -- 6 of 16 -- [2024] SASC 42 Blue J 5 The legislative regime 25 Section 45A of the Act relevantly provides: 45A—Excessive speed (1) A person who drives a vehicle at a speed exceeding, by 45 kilometres an hour or more, a relevant speed limit is guilty of an offence. … (6) In this section— … relevant speed limit, for a person who drives a motor vehicle, means a speed limit that applies to the driver under— (a) this Act (other than section 82 or 83); or (b) the Motor Vehicles Act 1959. 26 Section 53A of the Act provides: 53A—Approval of apparatus as traffic speed analysers The Governor may, by regulation, approve apparatus of a specified kind as traffic speed analysers. 27 Section 80 of the Act empowers the Governor to make Australian Road Rules (SA) (the Road Rules) to regulate traffic movement, flows and conditions, vehicle parking, the use of roads, and any aspect of driver, passenger or pedestrian conduct. 28 Section 175 of the Act creates various evidentiary presumptions. It relevantly provides: 175—Evidence (1) In proceedings for an offence against this Act, an allegation in an information that— (a) a specified place was a road or road-related area, or a specified kind or portion of road or road-related area; or … (c) a specified traffic control device was on, above or near a specified place; or (d) a traffic control device was of a specified form or was operating in a specified way; or … (i) a specified person was the owner, operator, person in charge or driver of a specified vehicle, -- 7 of 16 -- [2024] SASC 42 Blue J 6 is proof of the matters so alleged in the absence of proof to the contrary. … (3) In proceedings for an offence against this Act— … (baa) a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or by any other police officer of or above the rank of inspector, and purporting to certify that a specified traffic speed analyser that is not a photographic detection device had been tested on a specified day in accordance with— (i) the appropriate Australian Standard for testing the analyser as in force on the day of testing; or (ii) if there was no appropriate Australian Standard for testing the analyser in force on the day of testing—the manufacturer's specifications, and was shown to be accurate to the extent indicated in the document, constitutes, in the absence of proof to the contrary, proof of the facts certified and that the traffic speed analyser was accurate to that extent on the day on which it was so tested and, for the purpose of measuring the speed of any motor vehicle, during the period of 1 year immediately following that day (whether or not the speed measured differed from the speed in relation to which the analyser was tested or the circumstances of the measurement differed in any other respect from the circumstances of the test); … 29 Regulation 68 of the Road Traffic (Road Rules—Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) (the Rules Regulations) relevantly provides: 68—Evidentiary provisions (1) In proceedings for offences against the Rules or these regulations, an allegation in an information that— (a) a specified speed limit applied to a specified length of road; or … (h) specified information was on or with a specified traffic control device; or (i) a specified traffic control device applied to a specified length of road, portion of road or area; or (j) a specified traffic control device applied to a specified person in a specified place, is proof of the matters so alleged in the absence of proof to the contrary. -- 8 of 16 -- [2024] SASC 42 Blue J 7 30 Regulation 27 of the Road Traffic (Miscellaneous) Regulations 2014 (SA) (the Miscellaneous Regulations) relevantly provides: 27—Apparatus approved as traffic speed analysers (section 53A of Act) Pursuant to section 53A of the Act, the following are approved as traffic speed analysers: … (e) a Laser Technology Inc. LTI 20/20 TruSpeed laser; … 31 Rules 20, 21 and 25 of the Road Rules made by the Governor relevantly provide: 20—Obeying the speed limit A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving. Offence provision. … Note 4— Part 20 Division 2 deals with the way in which a traffic sign applies to a length of road. Part 20 Division 3 deals with the way in which the traffic sign applies to drivers driving on the length of road. 21—Speed limit where a speed limit sign applies (1) The speed limit applying to a driver for a length of road to which a speed limit sign applies is the number of kilometres per hour indicated by the number on the sign. Note— Length of road is defined in the dictionary. … (3) A speed limit sign on a road applies to the length of road beginning at the sign and ending at the nearest of the following: (a) a speed limit sign on the road with a different number on the sign; (b) an end speed limit sign or speed derestriction sign on the road; (c) if the road ends at a T-intersection or dead end—the end of the road. … 25—Speed limit elsewhere -- 9 of 16 -- [2024] SASC 42 Blue J 8 (1) If a speed limit sign does not apply to a length of road and the length of road is not in a speed limited area, school zone or shared zone, the speed limit applying to a driver for the length of road is the default speed limit. Note— Length of road is defined in the dictionary, school zone is defined in rule 23, shared zone is defined in rule 24, and speed limited area is defined in rule 22. (2) The default speed limit applying to a driver for a length of road in a built-up area is 50 kilometres per hour. 32 Rules 315 and 322 of the Road Rules relevantly provide: 315—Legal effect of traffic control devices mentioned in the Australian Road Rules (1) A traffic control device of a kind mentioned in the Australian Road Rules has effect for the Rules if— (a) the device is on a road; and (b) the device complies substantially with the Rules. Note 1— Road includes a road-related area—see rule 11(2). Note 2— Rule 322(1) and (2) explain the meaning of a traffic control device on a road. (2) A traffic control device is taken to comply substantially with the Australian Road Rules unless the contrary is proved. … 322—References to traffic control devices and traffic-related items on a road etc (1) A traffic control device or traffic-related item above or near a road is taken to be on the road. Examples— 1 A speed limit sign erected on a post at the side of a road is taken to be a speed limit sign on the road. … 33 The terms “length of road”, “traffic control device” and “traffic sign” are defined in Schedule 5 of the Road Rules, in the Dictionary: length, of road, includes— (a) a marked lane or a part of a marked lane; and (b) another part of a length of road. -- 10 of 16 -- [2024] SASC 42 Blue J 9 … traffic control device means a traffic sign, road marking, traffic signals, or other device, to direct or warn traffic on, entering or leaving a road. … traffic sign means a board, plate, screen, or another device, whether or not illuminated, displaying words, figures, symbols or anything else to direct or warn traffic on, entering or leaving a road, and includes a children crossing flag, a hand-held stop sign, a parking control sign and a variable illuminated message sign, but does not include traffic signals. Relevant speed limit 34 Ground 1 is that the Magistrate erred in finding that the evidence of Senior Constable Greenwood was sufficient evidence to establish the speed limit that applied to Mr Zefi’s vehicle. 35 The Commissioner accepts on appeal that there are no applicable legislative evidentiary provisions that establish presumptively the speed limit that applied to Mr Zefi’s vehicle. Although the Commissioner argued before the Magistrate that regulation 68 applied, on appeal the Commissioner accepts that the Magistrate was correct in holding that the provision does not apply to offences under the Act, as opposed to the Road Rules or Road Rules Regulations. 36 The Commissioner accepts that reliance cannot be placed on the default speed limit of 50 kilometres per hour under rule 25 of the Road Rules because no evidence was adduced that Seacombe Road is in a built-up area. In any event, no evidence was adduced that the relevant part of Seacombe Road is not controlled by a speed limit sign (and the Commissioner’s case is to the contrary). 37 Accordingly, the issue is whether the affidavit evidence of Senior Constable Greenwood was evidence that a 60 kilometre per hour speed sign applied to the length of road in question. 38 At paragraph 11 of his affidavit, Senior Constable Greenwood said: At 7.40 p.m. I noted no vehicles present travelling eastbound whilst at the same time took note of a white Mitsubishi Triton closely followed by a black Renault Clio hatch which were both travelling westbound at what appeared to be about the speed limit, a signed 60kph zone. 39 The reference to a “signed 60 kph zone” is a statement that a 60 kilometre per hour speed sign applied to the road (leaving aside for the time being the question to which part of the road it applied). 40 Mr Zefi accepts this but contends that the statement is hearsay or opinion. However, Mr Zefi also accepts that he did not object to the admissibility of this evidence and it was received by the Magistrate. -- 11 of 16 -- [2024] SASC 42 Blue J 10 41 The statement is not hearsay. Senior Constable Greenwood did not say or indicate that he knew the statement to be true because he was told it by someone else. He did not state in his affidavit that anything in it was based on information and belief. It is clear that the statement was made of his own knowledge. Nor is the statement opinion: it is a statement of fact. 42 It is true that the statement might have been subject of an objection that it is a conclusion because Senior Constable Greenwood did not identify where the west-facing 60 kilometre per hour speed sign was located to the east and that there was not a different speed sign eastwards of Senior Constable Greenwood’s position. However, as there was no objection by Mr Zefi to the statement (and no cross-examination in relation to it), the admission of the statement was evidence that there was a west-facing 60 kilometre per hour speed sign located to the east and that there was not a different speed sign eastwards of Senior Constable Greenwood’s position. 43 Mr Zefi also contends that at most the statement was evidence that the speed limit was 60 kilometres per hour where the Triton and Clio were located when observed by Senior Constable Greenwood but was not evidence that the speed limit was 60 kilometres per hour where Mr Zefi’s Commodore was when Senior Constable Greenwood activated the LIDAR. I reject that contention. When paragraph 11 of Senior Constable Greenwood’s affidavit is considered in the context of the surrounding evidence, it is clear that the statement was referring to the length of road travelled by the Commodore between the point at which it was first observed by Senior Constable Greenwood and Senior Constable Greenwood’s own position. 44 The first ground is not established. Proper operation 45 Ground 2 is that the Magistrate erred in reversing the onus of proof onto the defendant to prove that the speed detection device was not in proper order and/or operated properly. 46 Although the ground of appeal is expressed to refer both to the question of proper order and proper operation, on the hearing of the appeal Mr Zefi confines his contention to the question of proper operation. 47 In the first paragraph reproduced at [24] above, the Magistrate referred to the decision of Peek J in Police v Young.4 In that case, Peek J said: A matter that may be very important in circumstances such as the present is the skill with which the police officer operated the device during the speed detection process. The 4 [2012] SASC 210. -- 12 of 16 -- [2024] SASC 42 Blue J 11 obvious analogy is that a rifle may be perfectly made and accurate within itself, but if it is not skilfully used on a particular occasion the target will likely be missed. Further, it is critical to appreciate that the certificate procedure does not enact any presumption as to the expertise with which the device was used on any particular occasion. To pursue the rifle analogy, the certificate procedure may assist the prosecution to prove that the rifle is accurate within itself but it says nothing as to the person using it. Appropriate use of the device on the particular occasion had to be proven by the prosecution to the normal standard of proof, beyond reasonable doubt. Constable Hand gave evidence-in-chief that he had received training in the use of speed detection devices including training in relation to this particular device, the Ultralyte 100 LR laser speed gun in 2006, that he used the device very regularly and that he was competent in its use. He also described his precise operation of the unit during the timing of the appellant’s vehicle. The appellant did not ask Constable Hand any questions as to these matters and did not refer him to any documents relevant thereto. On my analysis of the evidence, the evidence given by Constable Hand, including as to his training (unchallenged in this context), was capable of proving beyond reasonable doubt that the use of device on the particular occasion was appropriate. I am not prepared to disturb the Magistrate’s finding in that regard.5 48 Earlier cases had established that the prosecution must prove that a device relied upon to prove a fact in issue (such as a breath analysis instrument or photographic detection device) was in proper order and was operated properly. In relation to breath analysis instruments, in Evans v Benson6 King CJ (with whom Jacobs, Bollen and Olsson JJ agreed) said: A breath analysis instrument can only indicate a blood alcohol concentration if it is in proper order and is properly operated. If an instrument is not in proper order or is not properly operated, it cannot be said to indicate any concentration of alcohol. For that reason it is necessary for the prosecution to prove that the instrument was in proper order and was properly operated.7 49 In the case of breath analysis instruments (unlike laser speed detection devices), section 47K(3)(b) of the Act facilitates proof of proper order and proper operation by providing that a certificate by a person authorised by the Commissioner that certifies a breath analysing instrument used by the person was in proper order and was properly operated is, in the absence of proof to the contrary, proof of the matters so certified. 50 However, despite such an evidentiary provision, in Police v Henwood8 Doyle CJ (after quoting from Evans v Benson) said: That these matters can be proved by certificate cannot be allowed to obscure the fact that, in one way or another, it is necessary for the prosecution to prove that the breath analysing 5 At [103]-[106]. 6 (1986) 46 SASR 317. 7 At 323. 8 [2005] SASC 209, (2005) 92 SASR 15. -- 13 of 16 -- [2024] SASC 42 Blue J 12 instrument was in proper order and was properly operated, before it can prove that a concentration of alcohol was indicated as being present by the breath analysing instrument.9 51 In the context of a case involving a photographic detection device, in Police v Bulgin10 White J said: In prosecutions in which evidence derived from the operation of an instrument or device is relied upon, it must usually (absent any statutory provision to the contrary) be established that the instrument or device was at the relevant time in good operating order and condition, and that it was operated correctly.11 52 In that case White J said that an inference that the photographic detection device was operated correctly might be drawn from a senior police officer’s certification under section 79B(10)(b) and (c) of the Act in conjunction with the predecessor of regulation 35 of the Miscellaneous Regulations. However, those provisions do not apply to laser speed detection devices. 53 In the second paragraph reproduced at [24] above, the Magistrate identified the fact that Senior Constable Greenwood in his affidavit did not explain what the correct operation of it was and did not give evidence explaining how he operated it or that he correctly operated it. 54 In the third paragraph reproduced at [24] above, the Magistrate held that the absence of evidence about operation did not matter because it is only where the correct operation of the device is impugned during the trial that it is necessary for the prosecution to adduce evidence about operation. The Magistrate did not explain what he meant by the operation being “impugned during the trial” but he must have been referring to the position before closing addresses. Presumably the Magistrate was referring to the operation being impugned during evidence, either by way of cross-examination of a prosecution witness (here Senior Constable Greenwood) or by way of evidence adduced by the defendant. 55 However, where the onus of proof lies on the prosecution in respect of an evidentiary fact, the prosecution is not relieved of that onus by a lack of cross- examination in respect of that fact or lack of evidence adduced by the defence in respect of that fact. In the present case, if no evidence was adduced by the prosecution capable of proving correct operation of the LIDAR, the prosecution failed to prove an essential evidentiary fact necessary in turn to prove the speed of Mr Zefi’s vehicle, being an essential element of the offence. 56 By his reasoning in the third paragraph reproduced at [24] above, the Magistrate effectively reversed the onus of proof and made an error vitiating his finding of guilt. 9 At [60]. 10 [2010] SASC 143. 11 At [30]. -- 14 of 16 -- [2024] SASC 42 Blue J 13 57 The second ground is established. Disposition of the appeal 58 Mr Zefi contends that there was in fact no evidence adduced at trial capable of proving that Senior Constable Greenwood correctly operated the LIDAR and that an acquittal must be recorded. 59 The Commissioner contends that the matter should be remitted to the Magistrates Court for a fresh trial. The Commissioner also contends that there was evidence adduced at trial capable of proving that Senior Constable Greenwood correctly operated the LIDAR. 60 There was no oral evidence adduced at trial. The Magistrate ought to have considered and decided the question of whether the affidavit evidence adduced was capable of proving that Senior Constable Greenwood correctly operated the LIDAR. If it was, the Magistrate ought to have recorded a conviction. If it was not, the Magistrate ought to have recorded an acquittal. On appeal, I am in as good a position as the Magistrate to decide this issue. I am therefore obliged to do so rather than remitting the matter for a fresh trial. 61 The only evidence given by Senior Constable Greenwood about operation of the LIDAR was contained in paragraph 14 of his affidavit: At this stage the earlier mentioned Mitsubishi Triton and Renault Clio passed my location and were out of sight and view. I activated the LIDAR and detected the Holden Commodore at a speed of 111 kph at a distance of 81.7 metres, at the time of detection there were no vehicles ahead of the commodore westbound in my view, no vehicles eastbound or alongside. The vehicle that had initially been to the rear of the Commodore was now about 100 metres to the rear. 62 Although Senior Constable Greenwood described the field tests that he undertook at the beginning and end of his shift (as summarised above), he did not in his affidavit give any description of how laser speed detection devices or 20/20 TruSpeed Laser devices are operated, or how he operated the LIDAR on this occasion. 63 The Commissioner contends that Senior Constable Greenwood’s evidence established that he was attached to the Road Policing Section of Southern Tactical; he correctly established the working accuracy of the LIDAR on the day in question by performing calibration tests to ensure that it was in good order; he detected Mr Zefi’s Commodore travelling at a speed of 111 kilometres per hour at a distance of a 81.7 metres; and the Commodore was the only vehicle in the sight of the LIDAR at the time that it was activated. 64 The Commissioner contends that this evidence was sufficient to draw the inference that Senior Constable Greenwood had the requisite knowledge and experience to properly operate the LIDAR at the relevant time and did so. -- 15 of 16 -- [2024] SASC 42 Blue J 14 65 It is to be hoped that police officers are not entrusted to operate laser speed detection devices without having had proper training to do so. However, no evidence as to any training undertaken by Senior Constable Greenwood was adduced. In those circumstances, it is doubtful that an inference can be drawn that he had undertaken proper training. However, I will assume for present purposes that such an inference can be drawn. 66 The fact remains that Senior Constable Greenwood gave no evidence about the operation of the LIDAR in general or his operation of it on the occasion in question. 67 The photograph of the LIDAR, exhibit P2, shows what appears to be the rear face and part of the handle of the LIDAR. On the rear face, there appear to be six buttons bearing different (unexplained) symbols together with a rotary dial and what appears to be an on/off switch. No evidence was adduced about the function or operation of those buttons or the rotary dial. On what appears to be the handle of the LIDAR, there appears to be a trigger guard (a trigger is not visible) together with what appears to be a rotary dial and two pushbuttons. No evidence was adduced about the function or operation of these. 68 No evidence was adduced about the complexity of operation of the LIDAR. It may be that its operation is very complex and requires great skill. It may be that its operation is very simple or even foolproof. It may be that the position is somewhere in between. The difficulty for the Commissioner is that it is simply impossible to know on the evidence adduced. 69 In the circumstances, it is not possible to draw an inference that Senior Constable Greenwood correctly operated the LIDAR. Of course, it may well be that he did so. However, it is simply speculative on the evidence adduced as to whether he did so. As no evidence was adduced about its operation, no inference can be drawn. 70 It follows that the evidence was incapable of proving correct operation of the LIDAR and hence of proving that Mr Zefi’s Commodore was travelling at 111 kilometres per hour. 71 Given this conclusion, I have no option but to acquit Mr Zefi of the offence. Conclusion 72 The appeal must be allowed. Mr Zefi’s conviction must be quashed and an acquittal substituted. 73 I will hear the parties as to costs. -- 16 of 16 --