Ali v Vieceli
[2023] WASC 299
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: ALI -v- VIECELI [2023] WASC 299
CORAM: FORRESTER J
HEARD: 4 AUGUST 2023
DELIVERED : 4 AUGUST 2023
PUBLISHED : 8 AUGUST 2023
FILE NO/S: SJA 1052 of 2023
BETWEEN: NIAZ AHMED ALI
Appellant
AND
SHAWN VIECELI
Respondent
ON APPEAL FROM:
For File No: SJA 1052 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE L ATKINS
File Number : MH 420 of 2023
Catchwords:
Criminal law - Single judge appeal - Application for leave to appeal - Section 60A(2) of the Road Traffic Act 1974 (WA) - Section 117 of the Road Traffic Administration Act 2008 (WA)
Legislation:
Criminal Appeals Act 2004 (WA)
Evidence Act 1906 (WA)
Interpretation Act 1984 (WA)
Road Traffic Act 1974 (WA)
Road Traffic Administration Act 2008 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | C F Bass |
| Respondent | : | S J Cobbett |
Solicitors:
| Appellant | : | Nigams Legal |
| Respondent | : | State Solicitor's Office (WA) |
Case(s) referred to in decision(s):
Browne v Dunn (1893) 6 R 67 HL
Kizon v Lee [2013] WASC 221
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Wells v The State of Western Australia [2017] WASCA 27
FORRESTER J:
(This judgment was delivered extemporaneously on 4 August 2023 and has been edited from the transcript to correct matters of grammar, add headings and include complete references).
Introduction
On 31 May 2023, Niaz Ahmed Ali was convicted of reckless driving, contrary to s 60A(2) of the Road Traffic Act 1974 (WA). He was fined $1,400, ordered to pay costs in the sum of $264.30 and his driver's licence was disqualified for a period of six months.
On 27 June 2023, the appellant appealed his conviction and applied for a stay of the order disqualifying his driver's licence pending the outcome of the appeal.
Having regard to the issues on the appeal, I considered it appropriate to determine the question of leave at the time of hearing the stay application.
Trial
The trial took place on 24 April 2023.
The prosecution alleged that at 4.52 pm on 16 January 2023, the appellant drove his car in a westerly direction on Pinjarra‑Williams Road in Dwellingup. He was observed by members of WA Police, who were conducting traffic duties, to be travelling in a 60kph zone at a speed of 110kph, which the police alleged to be 108kph for the purposes of the trial.
By consent, the Road Traffic (Administration) (Speed Measuring Apparatus) Notice 2017, was tendered, which identified the Stalker RLR as an approved speed measuring device, pursuant to s 117(2)(a) of the Road Traffic Administration Act 2008 (WA) (RTAA).[1]
[1] Exhibit 1.
Also by consent, certificates regarding the appellant's driver's licence and vehicle registration were tendered.[2]
[2] Exhibit 2.
The prosecution called evidence from the two police officers.
Shawn Vieceli
Senior Constable Vieceli gave evidence that he was a Senior Constable attached to the Mandurah Police Station. On 16 January 2023, he was on duty at Dwellingup Police Station with Senior Constable Boyd. They were carrying out speed detection duties. SC Vieceli said he was qualified to operate the Stalker speed measuring device.
At about 4.00 pm, he checked the laser of the device and found it to be working correctly.
At about 4.52 pm, he was conducting speed measuring and detection on the Pinjarra‑Williams Road between Marginata Crescent and Nanga Road, monitoring westbound traffic. He said:[3]
I observed a car travelling towards me. It was the only vehicle in the west bound lane, and it appears to be travelling in excess of the speed limit, which is 60 kilometres an hour in that zone
[3] Transcript, Shawn Vieceli v Niaz Ahmed Ali, Magistrates Court of Western Australia, 24 April 2023, 10 (Transcript 24 April 2023).
SC Vieceli said that he was standing 356m from the beginning of the 60 kilometre an hour zone, coming west bound into Dwellingup. He used the laser to measure that distance.
After he saw the vehicle, he pointed the device at the car and found the speed to be 110kph, at a distance of 195.1m. He then pulled over the car, which was the appellant's car. It was being driven by the appellant.
After the appellant had a conversation with SC Boyd, the appellant walked to where the speed sign was, and came back and said words to the effect of, 'You're right and I'm wrong'.[4]
[4] Transcript 24 April 2023, 12 - 13.
The appellant's vehicle was then impounded and he was informed he would be summonsed.
After some argument as to the document's admissibility pursuant to s 79C of the Evidence Act 1906 (WA), the learned magistrate admitted as an exhibit a Laser Calibration Certificate in relation to the device, certifying the device was operating correctly on 25 May 2022.[5]
[5] Exhibit 3.
The prosecution also tendered a certificate of competency relating to SC Vieceli's competence in relation to a different device, the LT12 TruSpeed, attained in 2013, and a document certifying that SC Vieceli had fulfilled the requirements for a conversion onto the Stalker RLR, completed on 4 October 2020.[6]
[6] Exhibit 4.
Photographs were tendered showing the reading from the device and the appellant's car and driver's licence.[7]
[7] Exhibit 5.
The prosecution played body worn camera footage at the hearing. It had been objected to by the appellant's counsel on the basis that it contained no admissions against interest. The prosecution alleged that it contained admissions in relation to the driving.[8] The appellant's counsel then informed her Honour that identity was not in issue.[9] The learned magistrate permitted it to be played on a provisional basis and ultimately determined that she would admit the recording up to 'point 53' on the recording. It appears that her Honour by this meant the footage to the time of 8.53 on the clock shown. Her Honour indicated she did not consider that it contained any admissions, and admitted the body worn camera footage as to identity.[10]
[8] Transcript 24 April 2023, 4 - 5.
[9] Transcript 24 April 2023, 7.
[10] Transcript 24 April 2023, 23 - 24.
In cross-examination, the appellant's counsel asked about the check he performed in relation to the laser and how he conducted it. He was asked about a 'plus symbol' on the screen of the device, which SC Vieceli said indicated the vehicle was travelling towards him at the time.[11]
Simon Christopher Boyd
[11] Transcript 24 April 2023, 24 - 26.
Simon Christopher Boyd gave evidence that he was a senior constable and that he and SC Vieceli were on the Pinjarra‑Williams Road in Dwellingup conducting a 'laser traffic action' at about 4.30 pm on 16 January 2023. The speed limit where they were doing the 'traffic action' was 60kph.[12]
[12] Transcript 24 April 2023, 28 - 29.
At about 4.50 pm, SC Vieceli was holding the Stalker laser device and said an approaching vehicle was doing 100kph in a 60kph zone, and he indicated to the driver to stop. The driver, who was the appellant, stopped and SC Boyd spoke to him.[13]
[13] Transcript 24 April 2023, 29.
SC Boyd said at the start of his shift and the end of his shift he checked the device's laser for accuracy.[14]
[14] Transcript 24 April 2023, 29 - 30.
SC Boyd was not cross‑examined.
That was the conclusion of the prosecution case. The appellant elected not to give or adduce evidence.
Submissions
The prosecution submitted that the elements of the offence had been made out and the appellant should be convicted.
The appellant's counsel submitted that the prosecution was relying on the evidentiary provisions of s 117 of the RTAA and Exhibit 4 to establish its case. Counsel submitted the documents were deficient in that they did not establish that SC Vieceli was certified as competent to use the Stalker RLR. Accordingly, counsel argued, the prosecution had failed to prove its case.
The appellant's counsel also submitted that there was 'a paucity of evidence in relation to how Officer Vieceli arrived at the conclusion as to what the applicable speed limit was at the relevant part of the relevant road' that the appellant drove down, being no more than a 'bare assertion' that that was the speed limit.[15] Counsel submitted that more is required to establish proof beyond reasonable doubt.
Decision
[15] Transcript 24 April 2023, 34.
The learned magistrate delivered her decision on 31 May 2023.
Her Honour properly directed herself as to matters applicable to all criminal trials. No complaint is made as to those directions.
The learned magistrate summarised the evidence and found that she was satisfied as to the element of identity, from the admission made at the start of the trial and the body worn camera footage, as well as Exhibit 5. Her Honour was also satisfied the appellant was driving a motor vehicle, and that he was doing so on a road.
The learned magistrate observed that both officers gave evidence that the relevant part of the road was subject to a 60kph speed limit, and that there was no challenge to that evidence. Accordingly, she accepted that evidence.[16]
[16] Transcript, Shawn Vieceli v Niaz Ahmed Ali, Magistrates Court of Western Australia, 31 May 2023, 3 (Transcript 31 May 2023).
Her Honour found that the speed detection equipment was an approved device pursuant to s 117(2)(a) of the RTAA and that the device was functioning properly at the time of the alleged offence.
In relation to the issue of whether SC Vieceli was an authorised person for the purposes of s 117(4) of the RTAA, the learned magistrate found that s 117(4) specifically provides that a police officer falls within the definition of an 'authorised person' and that competency does not need to be established in relation to a police officer and said:[17]
I find that both the speed measuring equipment and Senior Constable Vieceli's status as a serving police officer mean that the evidence of the speed recorded on the Stalker RLR is prima facie evidence of the speed at which [the appellant's] vehicle was moving as detected.
[17] Transcript 31 May 2023, 4.
The learned magistrate considered there was no evidence causing her to put aside the prima facie evidence as to speed. In those circumstances, she accepted that the appellant had been proved to be driving at 108kph and convicted him.
Ground of appeal
There is one ground of appeal. The appellant asserts that the verdict was unsafe and unsupported by the evidence on the basis that:
(1) evidence of police officers will only be prima facie evidence under s 117(4) of the RTAA when they have proved their competency to use the speed measuring equipment; and
(2)there was insufficient evidence of the speed limit of 60 kph.
Statutory framework and legal principles
Application for leave to appeal
The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A decision to convict an accused after a trial is a decision which may be appealed.[18]
[18] CA Act s 6(c) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[19] meaning that the ground is required to have a rational and logical prospect of succeeding.[20] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[21]
Unsafe and unsupported by the evidence
[19] CA Act s 9(2).
[20] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[21] CA Act s 9(3).
The legal principles which govern an appeal in which it is alleged that the verdict is unsafe or unsupported by the evidence were summarised in Wells v The State of Western Australia[22] and need not be repeated.
Section 117 of the RTAA
[22] Wells v The State of Western Australia [2017] WASCA 27 [13].
Section 117 of the RTAA relevantly provides:
117. Certain measuring equipment
(1)In this section and section 117A —
…
authorised person —
…
(b)in relation to speed measuring equipment, means —
(i) a police officer; or
(ii)a person certified by the Commissioner of Police as being competent to use the equipment;
…
Minister means the Minister to whom the administration of the Police Act 1892 is committed;
…
speed measuring equipment means apparatus of a type approved by the Minister under subsection (2)(a).
(2)The Minister may, from time to time, by notice published in the Gazette, approve of types of apparatus for the purposes of —
(a)ascertaining the speed at which a vehicle is moving; or
…
(4)In a prosecution for an offence under any written law evidence may be given of the use of speed measuring equipment by an authorised person in relation to a vehicle and of the speed at which that vehicle was moving as ascertained by the use of that equipment, and that evidence is prima facie evidence of the speed at which that vehicle was moving at the time of the use of that equipment in relation to that vehicle.
…
(7)In a prosecution mentioned in subsection (4), (5) or (6), evidence by an authorised person that apparatus used by the person was speed measuring equipment, speed measuring and recording equipment or distance measuring equipment is prima facie evidence of that fact.
(8)In a prosecution mentioned in subsection (4), (5) or (6), a certificate purporting to be signed by the Commissioner of Police certifying that a specified person is, or was at the material time, a person certified by the Commissioner as being competent to —
…
(b)use speed measuring equipment; or
…
is prima facie evidence of the matters in the certificate, without proof of the signature of the person purporting to have signed it or proof that the purported signatory was the Commissioner.
(9)Nothing in this section is to be construed as precluding or restricting the introduction of any competent evidence, whether in addition to, or independent of, any evidence for which provision is made by this section, bearing on the question of whether a person was or was not guilty of an offence under a written law.
Submissions
It appears that the appellant accepted, for the purposes of the trial, that all elements of the offence except the speed of the appellant's vehicle at the time of the alleged offence and the applicable speed limit were properly made out by evidence at the trial and that it was open to her Honour to be satisfied of those elements beyond reasonable doubt.
The appellant conceded, in his written submissions, that SC Vieceli was a police officer at the material times.[23]
[23] Appellant's Submissions filed 17 July 2023 [14].
However, the appellant submits that a proper construction of s 117 of the RTAA requires that the officer's competence in the use of the Stalker RLR was required to be proved, notwithstanding his status as a police officer.
The fact that WA Police intentionally sought to establish competence in relation to earlier devices (by certifying competence) was said to support the appellant's position. The appellant also relies upon the fact that the prosecution attempted to establish competency at the trial as 'telling' in support of his proposed interpretation.
The appellant points out that the certificates tendered as Exhibit 4 do not actually state that SC Vieceli was competent to use the Stalker RLR device.
The appellant submits that an interpretation of s 117(4) which does not require competence to be established would produce an illogical result and ought not be considered to be the intention of Parliament.
In relation to the second particular, the appellant also argued that there was no evidence tendered as to the numerical display of the sign posted speed limit. The fact that neither officer addressed how they reached the conclusion that the speed limit was 60kph meant that that fact had not been proved.
The respondent, in written submissions, pointed to s 17 of the Interpretation Act 1984 (WA) which provides that the word 'or' is to be construed disjunctively. It submitted that the proper construction of s 117 is that a police officer is an 'authorised person' for the purposes of s 117(4), and that there is no requirement to establish the competency of a police officer before s 117(4) can operate to make evidence of the speed of a vehicle ascertained by speed measuring equipment used by a police officer admissible as prima facie evidence of the speed.
The respondent also submits that the officers' evidence as to the speed limit was sufficient evidence of that fact.
Disposition
It is not challenged that the Stalker RLR was a 'speed measuring device' within the meaning of the RTAA.
In my view, it is not reasonably arguable that the definition of authorised person should be construed as requiring a police officer to also be proved to have been certified as being 'competent to use the equipment' before the evidence of speed using the speed measuring device is admissible as prima facie evidence of the speed under s 117(4).
The definition of an authorised person is a police officer or a person certified by the Commissioner of Police as being competent. As the Interpretation Act provides at s 17, the word 'or' is to be construed disjunctively. As such, a person must be proved to be either a police officer, or a person certified by the Commissioner of Police to be competent to use the equipment.
In oral submissions before me, it was submitted on behalf of the appellant that reference to Hansard indicated that it was not Parliament's intention that this be the position; however, it is a clear rule of statutory interpretation that resort not be had to Hansard unless the statutory text is unclear.
In Kizon v Lee,[24] Beech J (as he then was) considered this exact issue in relation to the then s 98A of the Road Traffic Act, which was the predecessor to and, for all relevant purposes, in identical terms to s 117 of the RTAA. Following a comprehensive analysis which I do not consider it necessary to repeat here, his Honour concluded that the construction invited by the appellant was contrary to the plain meaning of the statutory text. The appellant's counsel was clearly unaware of this authority and was unable to provide me any reasonable basis upon which to distinguish it. In any event, with respect, I consider that his Honour's reasoning was entirely correct.
[24] Kizon v Lee [2013] WASC 221.
It was open for the learned magistrate to find, and I am satisfied beyond reasonable doubt, that the evidence established that SC Vieceli was an authorised person for the purposes of s 117(4) of the RTAA.
As to the evidence as to the speed limit of the part of the road on which the appellant was driving, SC Vieceli did specify the location he was standing in at the time of the test by reference to street names. He said he was 356m west of the beginning of the zone, which he ascertained by using the laser to obtain the distance to the speed sign[25] and the distance from him at which the appellant's vehicle was detected travelling at 110kph was 195.1m.[26] Finally, he said that the posted speed limit was 60kph.[27]
[25] Transcript 24 April 2023, 10 - 11.
[26] Transcript 24 April 2023, 11.
[27] Transcript 24 April 2023, 11.
SC Boyd said that the speed limit where they were doing the traffic action was 60kph.
The evidence of the officers was unequivocal and unchallenged. In my view, contrary to the appellant's submission, the rule in Browne v Dunn[28] does not only apply when an accused person intends to give or adduce evidence. It remains the obligation of an accused person to properly put their case if they intend to challenge evidence given by the prosecution. In my view, in the circumstances, it was entirely open to her Honour to accept it beyond reasonable doubt and I do not have any reasonable doubt in relation to that issue.
[28] Browne v Dunn (1893) 6 R 67 HL.
On the evidence adduced at trial, and having been satisfied that all other elements were made out, her Honour was entitled to be satisfied beyond reasonable doubt that the appellant was driving a motor vehicle on a road at a speed of 108kph in a 60kph zone. Pursuant to s 60A(2) of the RTA, he was guilty of the offence of reckless driving. I do not have a reasonable doubt as to his guilt.
Accordingly, leave to appeal is refused and the appeal is dismissed.
I will hear from the parties as to costs at a later date.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
8 AUGUST 2023
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