THE QUEEN v. ALAN ROBERT SPORN

IN THE SUPREME COURT
MAGISTRACY APPEAL

1986 No.1229
(Criminal)

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JUDGMENT

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1. The appellant was convicted of speeding, contrary to section 41(1)(a) of the Road Traffic Ordinance.

2. The evidence for the prosecution depended entirely upon Police Sergeant, who testified that he operated a radar speed detector on the Tolo Highway at about 8 p.m. on 4th May, 1986.

3. According to the Sergeant, a car, No. DE 7686, which the defendant did not dispute was being driven by him, passed through the radar device.

4. The device showed that that car was travelling at a speed of 111 kilometres per hour. The Tolo Highway has a speed limit of 80 kilometres an hour. He produced a photograph, showing DE 7686 and a van, which he said was taken at the time.

5. The defendant, who was not represented, gave evidence to the effect that he was driving at about 50 kilometres an hour all the time on the Tolo Highway that evening, and that he looked periodically at the speedometer to check this.

6. He called as a withness a person who was a passenger in his car at the time who supported the defendant’s evidence that the latter had been following another vehicle which was having problem.

7. In his final address to the magistrate, the defendant asked the court to take into consideration the admission of the Sargeant in cross-examination that in the photograph, which was produced in evidence, there was another vehicle. When asked whether the radar could record the speed of either of two vehicles which were within its range, he said that he just knew that the device gave out a signal if a vehicle coming passed it exceeded the limit. When asked how the unit distinguished which vehicle was speeding he said that he did not know.

8. This matter was not further probed. It may well be that if a photograph is produced by the device, the evidence which it also produces as to speeding can relate only to the vehicle appearing in that photograph. Unfortunately, this was not made clear.

9. The magistrate, in his statement of findings, sets out in more than sufficient detail the evidence of the Sergeant and that given by the defendant and his witness.

10. Although he does not in terms state that he disbelieved the defence, this must be assumed from the terms of his findings of fact, which are to the effect that the Sergeant was competent to operate the equipment, that the equipment was operating accurately that it showed a photograph of the defendant's car and that at that time the defendant's car was travelling at 111 kilometres an hour.

11. However, the magistrate does not appear to have considered the defence put forward, namlely, that the Sergeant had conceded that there were two vehicles within range of the device at the time and that he did not know how the radar unit distinguished which of the two vehicles was exceeding the speed limit.

12. The evidence given by the defendant, if accepted, would have been consistent with the radar device having attributed the higher speed not to the defendant is car but to the van which he said was coming behind at a faster rate than his own.

13. In view of the omission of the magistrate to consider this matter in his statement of findings, I felt that the conviction was unsafe and accordingly quashed it.