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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Avins v Garvey

Details

AGLC: Avins v Garvey [2001] WASCA 415
Case: [2001] WASCA 415
Decision Date: 19 DECEMBER 2001

CaseChat Overview and Summary

In Avins v Garvey, the respondent, Garvey, was charged with exceeding the speed limit in a motor vehicle. The charge arose from a police officer using a speed gun to measure the speed of Garvey's car. Garvey was found guilty by the Magistrates' Court and subsequently appealed to the Supreme Court. The central issue in the appeal was whether the prosecution had established a prima facie case by proving the accuracy of the speedometer in the police vehicle, which is essential to substantiate a speeding charge.

The court had to determine if the prosecution had met its burden of establishing that the speedometer in the police vehicle was accurate. This involved examining whether there were sufficient grounds to conclude that the speed gun, which is relied upon to measure the speed of a vehicle, was functioning correctly and had been calibrated appropriately. The court needed to decide whether the evidence provided was adequate to demonstrate that the speed gun was capable of providing a reliable measurement of the speed of Garvey's vehicle.

The court held that the prosecution had not established a prima facie case due to insufficient evidence regarding the accuracy and calibration of the speed gun. The court emphasised that it is the prosecution's responsibility to prove the reliability of the equipment used to measure the speed of a vehicle. Without evidence of calibration and accuracy, the court found that the prosecution had not met its burden of proof. Consequently, the conviction was quashed, and Garvey's appeal was upheld. The court did not consider it necessary to order any further proceedings or actions in relation to the matter.

Orders