Avins v Garvey - [2001] WASCA 415

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: AVINS -v- GARVEY [2001] WASCA 415

CORAM: MILLER J

HEARD: 6 DECEMBER 2001

DELIVERED : 19 DECEMBER 2001

FILE NO/S: SJA 1130 of 2001

BETWEEN: RONALD JOHN AVINS
Appellant
AND
MARK ERIC GARVEY
Respondent

Catchwords:

Evidence - Speeding offence - Accuracy of speedometer in police vehicle - Requirements for charge to be proven - Whether prima facie case - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed
Matter remitted for rehearing

Category: B

Representation:

Counsel:

Appellant: Mr M A Jenkin
Respondent: Mr M Flynn

Solicitors:

Appellant: State Crown Solicitor
Respondent: Legal Aid of Western Australia

Case(s) referred to in judgment(s):

Connor v Blacktown District Hospital [1971] 1 NSWLR 713
Kent v Scattini [1961] WAR 74
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Perron v Seiler (2000) 31 MVR 190

Case(s) also cited:

Nil

MILLER J: The respondent was charged in the Court of Petty Sessions, Perth, that on 16 November 2000 at Nollamara he drove a vehicle, registration no UO4713, on a road, namely Ravenswood Drive, in a built‑up area, at a speed exceeding 60 kph, namely 85 kph contrary to reg 1001(1)(a) of the Road Traffic Code 1975 ("the Code"). To this charge the respondent pleaded not guilty. The matter was heard before Mr D N Jones SM in the Court of Petty Sessions on 26 July 2001. At the conclusion of the prosecution case, the learned Magistrate held that the respondent had no case to answer and dismissed the complaint. From that decision the appellant was, on 21 August 2001, given leave in this Court to appeal on the following grounds:
"(a)the learned Magistrate erred in law in finding that there was no presumption of accuracy in relation to a speedometer;
(b)the learned Magistrate erred in law in refusing to hear evidence of the accuracy of the speedometer; and
(c)the learned Magistrate erred in law in failing to find that the evidence disclosed a prima facie case."
The prosecution case at the hearing consisted of the evidence of Senior Constable Strudwick, an officer with the Mirrabooka Traffic Office. He testified that on 16 November 2000, he was driving a marked traffic patrol vehicle alone in the Mirrabooka area. He observed two motorcycles leave the Mirrabooka shopping centre carpark and drive onto Yirrigan Drive. They attracted his attention by reason of their heavy acceleration onto Yirrigan Drive and this caused the officer to check their speed for a short distance in Yirrigan Drive, before the intersection with Chesterfield Road. The motorcycles were travelling west on Yirrigan Drive and stopped at a red traffic control light at the intersection of Yirrigan Drive and Mirrabooka Avenue. The officer's evidence as to what happened thereafter was as follows:
"After the lights changed to green all vehicles at the intersection moved off to travel west on to Ravenswood Drive. Yirrigan Drive turns into Ravenswood Drive at that intersection. After a short distance the lead motor cycle, the bigger motor cycle, the one that Mr Garvey was driving, moved to the left to pass two other vehicles I believe that was in front of him. The smaller motor cycle followed. I also followed. Both motor cycles again accelerated reasonably heavy and I also accelerated to a position of approximately two to three car‑lengths behind both motor cycles or the rear motor cycle. I again completed the check speed of the motor cycles and obtained a reading of between 82 to 85 kilometres per hour over a distance of approximately 150 to 200 metres."
Constable Strudwick testified that he identified the respondent as one of the motorcycle riders and informed him that he had checked his speed at 82 ‑85 kmh on Ravenswood Drive. He asked whether there was any reason for riding at that speed and he said that the respondent had initially said to him "I was speeding because you were right behind her" looking over at the other motorcycle which the officer then realised was being ridden by a female. Constable Strudwick was asked about the "speed check" and he responded by making reference to a speed check that had been conducted on his vehicle. What he said was as follows:
"And also you indicated that you'd conducted a check speed; what can you tell us in relation about the --?-- A check speed was conducted with one of our marked traffic patrol vehicles; the rego of that vehicle is 1ASO 480. The speedo was checked by Constable Rechter on the 15th of the 10th.
HIS WORSHIP: Well, you can't give evidence about that.
WITNESS: Checked and found to be correct on the 15th of the 10th.
HIS WORSHIP: No, well, you --
PROSECUTOR (TO WITNESS): Just leave it at that? --- Okay."
I do not accept that the learned Magistrate was correct in his view that the Constable was unable to give any evidence about a speedo check conducted by another officer. The testimony rather suggests that Constable Strudwick was involved in the speed check on his vehicle, it being checked with another marked traffic patrol vehicle. Unfortunately, this was not elaborated upon as the officer was precluded from saying anything more about it.
I agree with the submission of the appellant that the Constable was entitled to give evidence of the method utilised to check the accuracy of speedometers in police patrol vehicles. I respectfully adopt what was said by Asprey JA in Connor v Blacktown District Hospital [1971] 1 NSWLR 713 at 721:
"In Wigmore, Anglo‑American System of Evidence in Trials at Common Law, 3rd ed, vol 1, par 93, it is stated that, subject to the distinctions referred to in par 92 which do not affect the admissibility of the evidence in the instant case, 'the admissibility of a person's habit, usage or custom as evidence that he did or did not do the act in question may be said to be universally conceded'. (See also Evans v Birch; Joy v Phillips, Mills & Co Ltd; Martin v Osborne; Lahrs v Eichsteadt per Dixon CJ and Windeyer J; Cross on Evidence (Australian edition), at pp 38‑39; Halsbury's Laws of England, 3rd ed, vol 15, par 515.) In my opinion, evidence of a relevant practice may be given by a person who, on a sufficient number of occasions and over a sufficient period, has regularly and uniformly performed acts, or has observed the regular and uniform performance of acts by others, under the same circumstances and upon the same occasions, so as to make it appear probable in the minds of reasonable men that, given the same circumstances and occasions, the like acts will again be performed. Such evidence, if accepted by the tribunal of fact, will enable it to draw the inference that such acts were performed by that person or those others, as the case may be, where the same occasion and circumstances for their performance have subsequently recurred at a point of time connected sufficiently closely with the continuity of acts related in the evidence."
Although in the present case Constable Strudwick was not seeking to give evidence of "habit, usage or custom" he was testifying in relation to a system utilised in the police department to check the accuracy of speedometers, a particular instance of which had apparently occurred on 15 October 2000. He was, in my view, entitled to give that evidence.
Constable Strudwick was extensively cross‑examined at the hearing by the respondent, who appeared in person. He elaborated upon the circumstances in which he had come to follow the motorcycles:
"Okay. So you don't really have any idea, do you. Okay. When the lights at Mirrabooka Avenue changed to green did the cars and the motor cycles move off and stay in a bunch or did they all spread out down the road? --- Two vehicles on the -- in the right‑hand lane moved off; the two motor cycles, which you were the lead motor cycle, followed them. The two in the right lane moved a little bit faster; there was a gap to get through. The other two hung back a bit. You've immediately moved to the left‑hand lane and the smaller motor cycle followed you and you accelerated again. I also did the same and accelerated up behind you."
The essence of the respondent's cross‑examination seemed to be that the officer had "tail‑gated" the motorcycle ridden by the respondent and that by his girlfriend and thus caused the respondent to exceed the speed limit. The following passage is illustrative of that line of cross‑examination:
"No, you didn't. And what did I say to you? --- As I just said, you told you were speeding because I was too close to your girlfriend, or that's what you believed.
That's right. I said, 'Bullshit'. I said, 'The only thing I was doing to try and get my girlfriend safely out of the way of some idiot that was driving too close to the back of the car - and that turned out to be you'; isn't that what I said? --- That's her opinion. That's her opinion."
At the conclusion of the officer's evidence the prosecution case was closed. When the prosecutor announced the close of the case, the following exchange took place:
"PROSECUTOR: I don't have any re‑examination, your Worship, and that's our case. That's the case for the prosecution, sir.
HIS WORSHIP: What case?
PROSECUTOR: The officer has indicated, sir, he has issued an infringement against this particular gentleman for speeding --
HIS WORSHIP: That doesn't prove he was speeding.
PROSECUTOR: And the officer said in his evidence that he conducted a speed check on this particular motorcycle.
HIS WORSHIP: There's no presumption of evidence in relation to what an officer reads on a vehicle speedometer.
PROSECUTOR: I don't follow, sir.
HIS WORSHIP: I don't understand him to have used any sort of approved device for detecting the speed.
PROSECUTOR: No. What he said, sir, in his evidence is that he conducted the speed check and his speedo had been found to be correct.
HIS WORSHIP: He can't say that. He can't say that.
PROSECUTOR: Okay, sir, well, then he has conducted a check speed and he has indicated that he was … (indistinct) …vehicle had been speeding and issued an infringement for speeding and that's the evidence --
HIS WORSHIP: He said that the vehicle was travelling at 85 kilometres per hour. What evidence is there?
PROSECUTOR: Sorry?
HIS WORSHIP: What evidence is there before the court that he has travelled at 85 kilometres per hour?
PROSECUTOR: The evidence of the officer.
HIS WORSHIP: He has not qualified himself in any way to estimate speeds."
After this exchange the learned Magistrate advised the respondent that had he been represented by counsel he would have expected a submission of no case to answer. His Worship said:
"HIS WORSHIP: … You are not obliged to give evidence and if I'm wrong in relation to my ruling then of course the matter will come back before me to require me to complete the hearing but I don't believe at this point in time there is sufficient evidence to establish the charges laid.
MR GARVEY: That's exactly what I was about to say; that I felt that the officer had failed to provide any conclusive evidence or proof of my guilt in relation to the offence and that I ask that the charge be dismissed.
HIS WORSHIP: Mr Garvey, you don't need to take it any further because the evidence did not demonstrate to me any confidence about speed estimate and there was no evidence about the accuracy of the device used to check your speed. In those circumstances the complaint will be dismissed."
At the hearing of this appeal counsel for the respondent was given leave to contend that the decision of the learned Magistrate should be affirmed on grounds other than those relied upon by the learned Magistrate, namely, that "there was no evidence that the location of the alleged offence was in a built‑up area".
The complaint certainly alleged that the respondent had exceeded the speed limit in a built‑up area, reflecting the provisions of reg 1000(1)(a) of the Code which provides as follows:
"1001. (1) A person shall not drive a vehicle at a speed exceeding 110 kilometres per hour and shall not drive a vehicle, -
(a)in a built‑up area, at a speed exceeding 60 kilometres per hour, except within a speed zone in which a higher speed is permitted;"
The words "built‑up area" are defined in reg 103 in the following way:
" 'built‑up area' means the territory contiguous to and including any road -
(a)on which there is provision for lighting by means of street lamps; or
(b)which is built up with structures devoted to business, industry or dwelling houses at intervals of less than 100 metres for a distance of one half kilometre or more; or
(c)beyond a sign indicating "BUILT-UP AREA" erected at the roadside to the face drivers approaching a development consisting of dwelling houses, or business or industrial structures;"
It is true that during the course of his evidence the Constable made no reference to the area being built up within the meaning of the definition. There was, however, evidence from the officer that the incident had occurred in Ravenswood Drive a short distance from the Mirrabooka Shopping Centre and at a location just beyond a major intersection controlled by traffic lights. Further, there was evidence that the officer had told the respondent that he was in a 60 kph zone and had been speeding. Regulation 1001(1)(a) predicates that the speed of a vehicle is limited to 60 kph in a built‑up area. The officer's evidence that he had told the respondent that he was in a 60 kph zone can be taken as evidence that the respondent was in a built‑up area.
In any event, I am of the view that had this issue been raised before the learned Magistrate he would and should have taken judicial notice of the fact that Ravenswood Drive, Nollamara is in a built‑up area in the sense at least that there is provision for lighting by means of street lamps in the area. It is a notorious fact that Nollamara is in the metropolitan area of Perth and that the streets in the metropolitan areas are lit. In a traffic case in the Court of Petty Sessions, Perth, a Magistrate is, in my view, entitled to take judicial notice of the fact that Ravenswood Drive, Nollamara is within a built‑up area as defined in the Code. Should there be any need for authority to support this proposition I refer to Kent v Scattini [1961] WAR 74 per Jackson SPJ at 76. In a case in which a country Magistrate had relied upon his knowledge of the nature of a nearby roadway, his Honour said:
"According to the books, particular facts of local topography are not supposed to be the subject of judicial notice, but I do not think it would be sensible to apply this rule too strictly in a local court action in a country town where many natural features would be perfectly well‑known to all concerned."
It follows that I am unable to accede to the respondent's submission that there was no case for the respondent to answer by reason of failure of the prosecution to prove specifically that the roadway in question was within a built‑up area as defined in the Code.
I accept the appellant's submission that the learned Magistrate erred in finding that there was no presumption of accuracy in relation to the speedometer in Constable Strudwick's vehicle. The actual conclusion reached by the learned Magistrate was that there was no "presumption of evidence in relation to what an officer reads on a vehicle speedometer".
In Perron v Seiler (2000) 31 MVR 190 at 193, I said in relation to this issue:
"[7] In ordinary circumstances it is quite true that speedometers fall into the class of notorious scientific or technical instruments to which a common law presumption of accuracy applies. That presumption makes the recording or reading of such an instrument prima facie evidence of the fact recorded without the need for any evidence that its accuracy has actually been tested: Porter v Kolodzeij [1962] VR 75 at 78; Redman v Klun (1979) 20 SASR 343 at 344‑5."
The learned Magistrate was therefore, in my view, wrong to have dismissed the case on the basis that there was no evidence in relation to the accuracy of the device used to check the respondent's speed.
His Worship also concluded that the evidence did not demonstrate to him "any confidence about speed estimate". This was not, however, a case of estimating speed. It was a case in which the officer had checked the speed of the motorcycle in front of him by reference to his own speedometer. It was in reliance upon the speed shown on his own speedometer that the officer charged the respondent with riding at a speed in excess of 60 kph, namely 85 kph. That is, the officer was not estimating speed, but was reflecting from his own speedometer what he said to be an accurate reading of the speed at which the respondent was travelling. The learned Magistrate was therefore, in my view, in error in concluding that he could not have any confidence "about speed estimate".
The test for a prima facie case in these circumstances is clearly set out in Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 per Malcolm CJ at 489:
"In my opinion, where a no case to answer submission is made by an accused in reply to a prosecution case, the trial judge is required to ask whether the evidence of the Crown taken at its highest is capable of establishing beyond a reasonable doubt the guilt of the accused: see R v Bilick (1984) 36 SASR 321 at 335, per King CJ; Gebert v The Queen (at 112‑113), per Mullighan J (with whom King CJ and Olsson J agreed)."
In this case, the prosecution evidence when taken at its highest established that the officer's speedometer, in relation to which a common law presumption of accuracy applied, had checked the respondent's motorcycle's speed at 82 ‑ 85 kph on the road in question. Further, the respondent, when questioned about the matter, had admitted to speeding because the police officer's vehicle was immediately behind the motorcycle ridden by his girlfriend. The evidence also established that the officer had checked the speed of the motorcycle over a distance of 150 ‑ 200 metres, at which time the police vehicle was approximately two to three car lengths behind the motorcycle ridden by the respondent and that ridden by his girlfriend.
Although counsel for the respondent argued that the evidence was unclear as to whether the speed check conducted by the officer related to the respondent's motorcycle, his girlfriend's motorcycle or both, it seems clear to me from the evidence that both motorcycles were checked at 82 ‑ 85 kph, those two motorcycles being one behind the other and the rear one of them being two to three car lengths in front of the police vehicle.
In my view, the prosecution case was clearly capable of establishing beyond reasonable doubt the guilt of the respondent. There was therefore a case to answer. It follows therefore that the appeal should be allowed and there should be a rehearing. That rehearing should be before a different Magistrate.