Bond v Hodgson
[2014] WASCA 200
•3 NOVEMBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BOND -v- HODGSON [2014] WASCA 200
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 5 SEPTEMBER 2014
DELIVERED : 3 NOVEMBER 2014
FILE NO/S: CACR 175 of 2013
BETWEEN: LEE BOND
Appellant
AND
PAUL RICHARD HODGSON
Respondent
FILE NO/S :CACR 86 of 2014
BETWEEN :LEE BOND
Appellant
AND
SERPENTINE JARRAHDALE SHIRE
Respondent
ON APPEAL FROM:
For File No : CACR 175 of 2013
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :HALL J
Citation :BOND -v- HODGSON [2013] WASC 257
File No :SJA 1126 of 2012
For File No : CACR 86 of 2014
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :CORBOY J
File No :SJA 1114 of 2013
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial in the Magistrates Court - Leave to appeal refused by the primary judge - Application for an extension of time to apply for leave to appeal to this court - Application for an extension of time to comply with a springing order
Criminal law - Appeal against conviction - Appellant convicted after trial in the Magistrates Court - Appellant's appeal to a single judge of the Supreme Court dismissed by virtue of her non-compliance with orders made by the court - Application for an extension of time to apply for leave to appeal to this court
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 10, s 16, s 18
Criminal Procedure Rules 2005 (WA), r 60, r 65
Road Traffic Act 1974 (WA), s 98A
Road Traffic Code 2000 (WA), r 11(6)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)
Result:
CACR 175 of 2013
Application for an extension of time to comply with Mazza JA's order made on 2 December 2013 dismissed
Appeal dismissed
CACR 86 of 2014
Application for an extension of time to apply for leave to appeal dismissed
Appeal dismissed
Category: B
Representation:
CACR 175 of 2013
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
CACR 86 of 2014
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
Nil
McLURE P: I agree with Buss JA.
BUSS JA:
CACR 175 of 2013: introduction
On 20 September 2012, the appellant was convicted, after a trial in the Magistrates Court before Magistrate Flynn, on one charge in a prosecution notice. The charge alleged that on 4 November 2011, at Forrest Road, Hilbert, the appellant drove a motor vehicle (registered number 1BGX-145), where a school zone sign was erected indicating a speed of 40 km an hour, at a speed exceeding 40 km an hour (namely 58 km an hour) at the beginning of the school zone and during the school zone periods indicated on the school zone sign, contrary to r 11(6) of the Road Traffic Code 2000 (WA).
The magistrate imposed a fine of $150 and ordered the appellant to pay the respondent's costs.
The appellant applied for leave to appeal to the Supreme Court against her conviction. The appeal was governed by div 2 of pt 2 of the Criminal Appeals Act 2004 (WA).
On 12 July 2013, Hall J refused leave and dismissed the appeal.
On 5 September 2013, the appellant filed an appeal notice in this court. She applied for an extension of time to apply for leave to appeal against Hall J's decision. The last date for appealing was 2 August 2013.
CACR 175 of 2013: the appellant's appeal to this court is dismissed pursuant to a springing order
By letter dated 9 September 2013, the Court of Appeal Registrar informed the appellant, relevantly, that she must file and serve the appellant's case on or before 31 October 2013. The letter set out details of the matters which had to be dealt with in the appellant's case.
The appellant failed to file and serve the appellant's case by 31 October 2013.
By letter dated 5 November 2013, the case management officer of the Court of Appeal informed the appellant that if the appellant's case was not filed without delay 'then the matter may be referred to a single Judge of Appeal who has jurisdiction under r 43(2)(g)(ii) of the Supreme Court
(Court of Appeal) Rules 2005 to dismiss the appeal for non‑compliance with or under the Rules'.
By 19 November 2013, the appellant had still not filed or served the appellant's case.
On 20 November 2013, the acting Court of Appeal Registrar sent a registrar's notice to attend to the appellant. The notice informed the appellant that the appeal had been listed before a single judge of appeal on 2 December 2013 at 9.00 am for the purpose of deciding what action should be taken as a result of her continuing failure to file and serve the appellant's case.
On 2 December 2013, Mazza JA held a directions hearing in connection with the matter. The appellant did not appear. His Honour ordered that:
The time for the appellant to file and serve [the] appellant's case be extended to 4 pm on 23 December 2013, failing which, the appeal be dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005.
By letter dated 3 December 2013, the associate to Registrar Bush sent a copy of Mazza JA's order to the appellant by post and facsimile transmission.
The appellant did not file or serve the appellant's case by 4.00 pm on 23 December 2013 and consequently, pursuant to Mazza JA's order made on 2 December 2013, the appeal was dismissed.
On 29 January 2014, the acting Court of Appeal Registrar signed a certificate of conclusion of criminal appeal. The certificate stated, relevantly: '[t]he appellant not having filed the appellant's case by 23 December 2013 pursuant to the order of Mazza JA on 2 December 2013, the appeal stands dismissed'.
CACR 175 of 2013: the appellant applies to this court for an extension of time to comply with Mazza JA's order made on 2 December 2013
On 7 February 2014, the appellant applied for an extension of time to comply with Mazza JA's order made on 2 December 2013.
By a registrar's notice to attend dated 4 April 2014, the Court of Appeal Registrar informed the appellant that the matter had been listed before this court on 23 May 2014 at 10.30 am and that the purpose of the hearing was to consider her application for an extension of time to comply with Mazza JA's order made on 2 December 2013.
On 23 May 2014, the appellant appeared at the hearing before this court (McLure P, Buss and Mazza JJA). The court made orders as follows:
1.The appellant have liberty to file and serve the appellant's case and an affidavit explaining her failure to comply with the rules of the Court within 10 days from the date of the hearing before the Court of Appeal.
2.If the appellant fails to file and serve the documents referred to in order 1 within the specified time her application for an extension of time to comply with the orders of 2 December 2013 will stand dismissed.
3.The application for an extension of time be otherwise adjourned sine die.
On 2 June 2014, the appellant filed and served the appellant's case. On 12 June 2014, the appellant purported to file an affidavit in support of her application for an extension of time to comply with the order of Mazza JA made on 2 December 2013.
On 5 September 2014, the appellant appeared at a further hearing before this court (McLure P, Buss and Mazza JJA) in connection with her application for an extension of time to comply with the order of Mazza JA made on 2 December 2013. At the conclusion of the further hearing the court reserved its decision.
CACR 175 of 2013: the merits of the appellant's application for an extension of time to comply with the order of Mazza JA made on 2 December 2013
After hearing evidence and submissions at the trial in the Magistrates Court, the magistrate noted, in delivering his judgment, that it was not in dispute that the appellant had been driving a motor vehicle on Forrest Road, Hilbert on the afternoon of 4 November 2011, as alleged in the prosecution notice. His Honour was satisfied beyond reasonable doubt that those facts had been established (ts 54).
The magistrate identified the critical matters in dispute as follows. First, whether the appellant was driving within a speed zone in which the speed limit was 40 km an hour. Secondly, whether the appellant was driving at a speed exceeding 40 km an hour (ts 54 ‑ 55).
His Honour was satisfied beyond reasonable doubt that the speed camera operator, Philip Thirlwell, who gave evidence for the prosecution, had recorded the speed of the appellant's vehicle at a point within a school zone, indicated by a school zone sign. The sign stated that the speed limit was 40 km an hour. The sign also stated that the school zone period commenced at 2.30 pm. Accordingly, the question of whether the appellant was travelling in a speed zone in which the speed limit was 40 km an hour turned on whether she was travelling within the school zone after 2.30 pm (ts 56).
After having regard to the conflicting evidence of the appellant (who gave evidence at the trial) and Mr Thirlwell, the magistrate was satisfied beyond reasonable doubt that the appellant was driving her motor vehicle within the school zone after 2.30 pm (ts 59). His Honour was also satisfied to the requisite standard that the appellant was travelling at the speed recorded by the speed measuring device operated by Mr Thirlwell, namely 59 km an hour (ts 60).
His Honour therefore convicted the appellant of the charge.
In the appeal before Hall J, the appellant relied on three grounds of appeal. The grounds, as set out in her appeal notice, read:
1.Reference to a 30 minute time frame.
2.The validity of the camera operator.
3.Witness in court prior to giving evidence.
Hall J dealt in detail with each of the appellant's grounds of appeal, as follows:
Ground 1 - Timing
On the hearing of the appeal the appellant said that she made a mistake in her evidence at the trial. She said that in her evidence she had said that the time on the clock was 2.20 but she had meant to say '20 to'. On this basis she argued that the 14 minute discrepancy on her clock would place her on Forrest Road at the time of the photograph at 2.26; that is, four minutes before the school zone speed limit became operative.
The obvious difficulty with the appellant's argument is that in her evidence in the Magistrates Court she was asked several times about the time as shown by the figures on her clock in the car. She repeatedly referred to the time as being 2.20 or 20 past two. When questioned by the magistrate she confirmed that this meant that on the basis that her clock was 14 minutes fast, she was suggesting that the real time she was photographed was 2.06 pm. This evidence left no room for any possible mistake.
In any event, on the hearing of the appeal, the appellant confirmed that the clock in her car was a digital clock and that if the time that she was travelling through the school zone was 20 to three, it would have shown 2.40 (or 14.40 if it was a 24 hour clock). When asked what her actual recollection of the figures shown on the clock were, she said that she did not recall seeing the figures 2.40, but, nonetheless maintains a belief that that was the time. It would seem that there is no evidential basis for this belief, rather it is a reconstruction of events after the event.
There is no basis for suggesting that the evidence given by the appellant to the magistrate was an error. There is nothing in that evidence that suggests it was a slip or an inadvertent error, to the contrary. What has occurred is that the appellant now wishes to change her evidence. Such a change cannot be permitted. In any event, as the magistrate found, the evidence of Mr Thirlwell was clear and persuasive.
This ground is not reasonably arguable and leave in respect of it will be refused.
Ground 2
At the hearing of the appeal the appellant submitted that there were reasons to believe that Mr Thirlwell was not in fact the operator who had been on duty at the relevant time. The appellant said that her belief in this regard was based on the fact that the trial in the Magistrates Court had been deferred on a previous occasion due to the unavailability of a witness. She said that when she asked an orderly in the Magistrates Court the name of the unavailable witness she was told a name different from that of Mr Thirlwell. This claim is unsupported by any sworn evidence.
The appellant also says that evidence given by Mr Thirlwell indicates that he was not the relevant operator. In particular, the appellant relies on the fact that Mr Thirlwell was unable to recognise photographs of the area when they were put to him in cross-examination.
This ground is completely without merit. Mr Thirlwell gave evidence on oath that he was the operator on duty on the relevant day. It was not put to him in cross-examination that he was being untruthful in this regard and that some other operator was in fact on duty.
When asked about his familiarity with the area, Mr Thirlwell said that he was very familiar with it having set up a camera at that location on many occasions. The photographs shown to Mr Thirlwell in cross-examination were produced by the appellant. He said that he did not recognise the area depicted. The photographs were marked for identification but never formally proven in evidence. Accordingly, whether or not they in fact depict the part of Forrest Road where the camera was located was never established.
Leave in respect of this ground must be refused.
Ground 3
The appellant submitted that at the commencement of the trial in the Magistrates Court the first two witnesses, being Mr Thirlwell and Mr Margot, remained in court until they were each called to give evidence. She assumed that there must be some impropriety in this.
Proceedings must occur in open court unless a law, rule or order is made to the contrary. An order may be made requiring witnesses other than the accused to leave the courtroom and to remain out of hearing of the courtroom until they are called to give evidence: s 171(3) of the Criminal Procedure Act 2004 (WA). No such order was made in this case. Accordingly, there was no requirement for Mr Thirlwell and Mr Margot to leave the room.
In any event, the reason why orders for witnesses to remain out of the court until they give evidence are made is to ensure the fairness of the proceedings. Such orders are appropriate where there may be a risk that witnesses will vary their evidence to conform with each other or amend their evidence to accommodate difficulties that may have been exposed in cross-examination. There is no basis for a suggestion that any such risk existed in this case. Mr Thirlwell was called as the first witness. He did not hear any other witness' evidence before he gave evidence. Mr Margot's evidence related only to the procedure that was followed in preparing an infringement notice from a photograph taken by a speed camera. If Mr Margot was in the courtroom when Mr Thirlwell was giving his evidence, no objection was taken to that by the appellant. In any event, no miscarriage of justice could possibly have arisen from Mr Margot's presence in the court given the nature of his evidence.
Leave to appeal in respect of ground 3 must be refused [19] ‑ [32].
Before this court the appellant relies on six grounds of appeal. The grounds, as set out in the appellant's case, read:
1.The adjournments caused by the camera operator not being present and not attending when instructed by the magistrate.
2.Camera Operator was named as Carl Peter Lawson and Philip John Thirlwell gave evidence.
3.Prosecutor stated camera used was a Multanova. Camera operator provided a certificate of competence for a Vitronic Poliscan Speed MI.
4.Calibration of camera. Calibration certificate requested witness claimed not to have it. Police use this as proof of camera operating correctly.
5.Time of enforcement and time calculated by camera operators watch not evidence his watch was correct. Infringement Managements Operations sheet had discrepancies including calibration date.
6.Prosecutor leading camera operator to change his evidence regarding the calibration of the camera and other documents relating to the speed I was charged with in a school zone.
In my opinion, the appellant's application for an extension of time to comply with the order of Mazza JA made on 2 December 2013 should be dismissed. I am of that opinion for the following reasons.
First, the appeal to this court is governed by div 3 of pt 2 of the Criminal Appeals Act. Division 3 comprises s 16 ‑ s 19.
By s 16(2), a party to an appeal under div 2 of pt 2 of the Act who is aggrieved by a decision made in the appeal by a single judge that:
(a)refuses leave to appeal; or
(b)dismisses or decides an appeal,
may appeal to the Court of Appeal against the decision.
By s 18, read with s 9, of the Act:
(a)the leave of this court is required for each ground of appeal in an appeal under div 3;
(b)after an appeal is commenced, this court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding; and
(c)unless this court gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.
The appeal to this court is an appeal against the decision of Hall J. None of the appellant's grounds of appeal in the appellant's case alleges that Hall J made any error of law or fact. Ground 2 in the appellant's case reproduces in substance ground 2 before Hall J. However, the other grounds in the appellant's case are new in that they were not grounds relied on before Hall J. Ground 2 in the appellant's case is without merit for the reasons given by Hall J in relation to ground 2 before his Honour. In any event, Hall J was correct, for the reasons he gave, in concluding that neither ground 1 nor ground 3 of the appeal before his Honour had any merit.
Secondly, I have reviewed the record of the proceedings before the magistrate and I have considered the submissions made by the appellant in support of grounds 1, 3, 4, 5 and 6 in the appellant's case. I am satisfied that none of those grounds, in the context of the trial record, reveals that the magistrate made a material error of law or fact or that a miscarriage of justice occurred at the trial.
As to ground 1, the appellant complains about adjournments granted to the prosecution in the Magistrates Court. The trial was originally listed for 12 April 2012. It was adjourned and re‑listed for 21 August 2012. It was adjourned again and re‑listed for 20 September 2012. The trial proceeded on that date. It appears the adjournments were granted because of the unavailability of the prosecution witness, Mr Thirlwell. I am not persuaded that the granting of the adjournments caused any relevant miscarriage of justice.
It is convenient to deal with grounds 3, 4, 5 and 6 together:
(a)Mr Thirlwell gave the following evidence‑in‑chief concerning his operation of the speed measuring equipment on the afternoon of 4 November 2011:
(i)Mr Thirlwell was certified as an authorised person to operate Vitronic Poliscan Speed M1 speed measuring equipment (ts 3 ‑ 4);
(ii)the Vitronic Poliscan Speed M1 speed camera was an approved laser apparatus for ascertaining the speed of a moving vehicle (ts 4);
(iii)Mr Thirlwell set up a Vitronic Poliscan Speed M1 speed camera on Forrest Road in a school zone (ts 4 ‑ 5);
(iv)after setting up the speed camera and before starting enforcement procedures, Mr Thirlwell tested the speed camera and it tested correctly (ts 5);
(v)after setting up the speed camera and before starting enforcement procedures, Mr Thirlwell checked the time input on the speed camera and confirmed it had the same time as his watch (ts 12);
(vi)during enforcement procedures, the speed camera detected a vehicle, registration number 1BGX-145 (being the appellant's vehicle), travelling at 59 km an hour (ts 5); and
(vii)after examining a photograph taken by the speed camera of the vehicle with registration number 1BGX-145, Mr Thirlwell was satisfied that the vehicle was travelling at 59 km an hour (ts 5).
Mr Thirlwell also said in examination‑in‑chief that before he commenced and after he ended his shift on 4 November 2011 he tested the speed camera in accordance with the manufacturer's instructions and, on each occasion, the apparatus tested correctly (ts 4 ‑ 5, 8).
(b)The prosecutor tendered a certificate in support of Mr Thirlwell's evidence that he was certified by the Commissioner of Police as competent to operate the Vitronic Poliscan Speed M1 speed camera. By s 98A(4b) of the Road Traffic Act 1974 (WA), such a certificate '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'.
(c)The magistrate accepted, in his judgment, that Mr Thirlwell was an authorised person and that the Vitronic Poliscan Speed M1 was speed measuring equipment for the purposes of s 98A of the Road Traffic Act. By s 98A(3), in any proceeding for an offence against the Road TrafficCode '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'. His Honour was therefore satisfied that there was prima facie evidence that the vehicle being driven by the appellant was travelling at 59 km an hour (ts 56).
(d)The magistrate noted that whether he was satisfied that the appellant had been travelling at 59 km an hour 'require[d] an assessment not only of the evidence of Mr Thirlwell but all of the evidence in the case' (ts 56).
(e)The appellant cross‑examined Mr Thirlwell. She sought to challenge the calibration of the Vitronic Poliscan Speed M1 speed camera (ts 13 ‑ 14). She also sought to challenge the accuracy of the speed camera at the relevant time because it was allegedly impeded by bushes or a bend in the road (ts 21 ‑ 22).
(f)The appellant gave sworn evidence at the trial. She denied having travelled at 58 or 59 km an hour. First, she said she had turned onto Forrest Road from another road and it was not possible for her to attain that speed by the time she reached the speed camera (ts 38). Secondly, she said it was 'rare' for her to travel faster than 50 km an hour through a school zone (ts 38 ‑ 39).
(g)The appellant called Morris Bond as a witness. He said that after the appellant had received an infringement notice he drove the appellant's vehicle to re‑trace her route on the afternoon in question and test whether it was possible to attain the alleged speed by the time he reached the school zone (ts 46). According to Mr Bond, it was necessary to 'push the car' to attain 59 km an hour by the time the vehicle arrived at a point about 10 m after the school zone sign (ts 47). He was unable to reach 59 km an hour before that point (ts 47).
(h)The magistrate, in his judgment, referred to the matters relied on by the appellant to impugn the accuracy of the speed camera. His Honour said that those matters had been put to Mr Thirlwell and answered by him. His Honour decided that the matters relied on by the appellant did not displace the prima facie effect of Mr Thirlwell's evidence read with s 98A of the Road Traffic Act (ts 59).
(i)Mr Thirlwell gave the following evidence‑in‑chief as to the time at which the speed camera recorded the appellant's vehicle travelling at 59 km an hour:
(i)(as I have mentioned) before starting enforcement procedures, Mr Thirlwell checked the time input on the speed camera and confirmed it had the same time as his watch (ts 12);
(ii)after testing the speed camera, Mr Thirlwell commenced enforcement procedures at 2.35 pm (ts 8);
(iii)during enforcement procedures, the speed camera detected a vehicle, registration number 1BGX-145 (being the appellant's vehicle), travelling at 59 km an hour at 2.36 pm (ts 5, 8); and
(iv)at 2.46 pm Mr Thirlwell contacted VKI, a police communications officer, for a 'time check' and confirmed that the time on his watch and the time in the speed camera matched the time given by the officer (ts 12).
(j)The appellant challenged, in her cross‑examination, the accuracy of Mr Thirlwell's watch (ts 15).
(k)The appellant said, in her sworn evidence, that she travelled past the speed camera before 2.30 pm. In particular, she gave this evidence:
(i)she believed that at the material time the clock in her vehicle was 10 minutes fast (ts 33);
(ii)she always checked the time on her clock when driving in a school zone within half an hour of the school zone period commencing (ts 37);
(iii)she recalled checking the time on her clock on the afternoon in question:
The clock was 2.15, I think it was, or 2.17, but it definitely was not out of the - it would have been 2.14, 2.15 (ts 37);
(iv)later, she ascertained that the clock in her vehicle was 14 minutes fast rather than 10 minutes fast (ts 33, 37 ‑ 38).
(l)The appellant accepted in cross‑examination that:
(i)she did not remember seeing the speed camera on the afternoon of the offence (ts 40);
(ii)she did not check the clock in her vehicle after travelling through the school zone (ts 45); and
(iii)she checked the accuracy of the clock about three weeks after the date of the alleged offence (ts 44).
(m)The magistrate said, in the course of delivering his judgment:
Bearing in mind Mr Thirlwell is employed for a specific task of measuring vehicle speeds and that it was a matter of importance to him to ensure that he commenced at the correct time, and bearing in mind [the appellant's] evidence that she did not recall specifically seeing a police camera present on that day but that she was giving evidence of her usual practice, and bearing in mind the extent of the discrepancy ‑ a half an hour ‑ I am satisfied that [the appellant] did not look at her clock on that day and see a time of 2.20.
It is, on my assessment of Mr Thirlwell's evidence, inconceivable that he would have commenced recording time a full half an hour before the school zone commenced. In other words, I am satisfied that he did look at his clock and that he did confirm the accuracy of his clock with police headquarters.
I must be careful. I do not resolve this case on whether or not I prefer Mr Thirlwell's evidence to [the appellant's] evidence. Even if I do not accept [the appellant's] evidence as to the time that she says she was travelling through, I still need to be satisfied beyond reasonable doubt that [the appellant] was travelling in that vicinity after 2.30 pm.
Reviewing Mr Thirlwell's evidence, his evidence as to the checks that he did or the time that he started his shift, to the checks that he did at the start of his shift, to the testing that he did upon arrival, and to the testing that he did with his watch with VKI and his watch in the courtroom today, I am satisfied beyond reasonable doubt that [the appellant] was travelling after 2.30 pm in the school zone on the day alleged by the prosecution (ts 57 ‑ 59).
(n)I am satisfied that the magistrate's findings were properly open to him. His Honour did not make any material error of law or fact and his approach to fact‑finding was appropriate. His Honour was entitled to accept Mr Thirlwell's evidence and reject the appellant's exculpatory account. There is no basis on which an appellate court could, in the circumstances, set aside any of his Honour's findings.
(o)As to ground 3, it is true that the prosecutor told the magistrate, before any evidence was called, that the speed camera was a 'Multanova camera' (ts 2). Mr Thirlwell said in cross‑examination that a Multanova speed camera was different from a Vitronic Poliscan Speed M1 speed camera. A Multanova is operated by radar whereas a Vitronic is a laser apparatus (ts 13). Multanovas ceased to be used in early 2010 (ts 13). On the afternoon in question he was operating a Vitronic speed camera. The prosecutor's inaccurate description of the speed camera in his opening submissions is of no moment. It is the evidence of Mr Thirlwell that was relevant and significant. The magistrate accepted, and was entitled to accept, Mr Thirlwell's evidence as to the kind of speed camera he was operating.
(p)As to ground 4, Mr Thirlwell said in cross‑examination that the 'last calibration date' of the speed camera was '16 October 2012 [sic]' (ts 14). He said he did not have the certificate of calibration with him (ts 14). Mr Thirlwell explained that there was 'a seal on the back of the camera [as to] the calibration date' (ts 14). The seal had been applied by the technician who had calibrated the speed camera (ts 14). The seal indicated that 'the calibration date was 16 October 2012 [sic]' (ts 14). No miscarriage of justice occurred at the trial as a result of Mr Thirlwell's failure to produce the calibration certificate.
(q)I am not persuaded that the submissions made by the appellant in support of ground 5 of her appeal, or the trial record, disclose a reasonably arguable case that the magistrate made a material error of law or fact in accepting Mr Thirlwell's evidence or in concluding that the elements of the offence had been established beyond reasonable doubt.
(r)The appellant made these submissions in support of ground 6:
1.The prosecutor was leading the camera operator regarding his statement of the date of calibration of the camera and assisted him in changing the date of calibration to a more suitable date, even using the words 'without leading' (p 27)
2.The prosecutor was not happy about the camera operator being asked to look at documents and the magistrate stated 'clearly the documents raise ‑ the subject matter of the documents concerns what might be the operation of a device similar to this' [(ts 16)]. I was able to ask if the camera operator had seen the documents before, in keeping with his behaviour to questions during this hearing he answered no. His evidence was cleverly worded with a lot of evasion and no to answers I knew was wrong.
As I have mentioned, Mr Thirlwell said in cross‑examination that the last occasion on which the speed camera was calibrated before the afternoon in question was '16 October 2012 [sic]' (ts 13 ‑ 14). The reference to the year 2012 was a patent error: the offence allegedly occurred on 4 November 2011 and the trial took place on 20 September 2012.
The appellant's submissions on ground 6 refer to the prosecutor's re‑examination of Mr Thirlwell. The relevant passage in re‑examination reads:
PROSECUTOR: I'm confused about the calibration date that you mentioned on the form and that was asked about in [cross] examination. It's got the 16th of the 10th ‑ ‑ ‑
HIS HONOUR: You want to ask the witness a question about exhibit 5, I think?
PROSECUTOR: Yes, sir?‑‑‑I've got the copy here, your Honour
HIS HONOUR: Yes. What is the question?
PROSECUTOR: If you have a look at that document, the document says 16/10/12?‑‑‑That's correct.
Is that the ‑ without leading, what can you say about that date?‑‑‑That's the due date. That's when it needs to be calibrated again, on 16/10/2012. Every 12 months, your Honour, the speed camera has to be recalibrated.
Prior to 4 November 2011 when was this camera calibrated?‑‑‑It would have been calibrated on 16/10/2011 (ts 27).
So, the re‑examination merely clarified the patent error made by Mr Thirlwell earlier in his evidence as to the last occasion on which the speed camera was calibrated before the afternoon in question.
There is no merit in ground 6.
Thirdly, I have read the affidavit material filed by the appellant in support of her application and I am not persuaded that she has offered a satisfactory explanation for her failure to comply with the order of Mazza JA made on 2 December 2013.
CACR 175 of 2013: conclusion
The appellant's application for an extension of time to comply with Mazza JA's order made on 2 December 2013 should be dismissed.
CACR 86 of 2014: introduction
On 22 August 2013, the appellant was convicted, after a trial in the Magistrates Court before Magistrate Malone, on two charges. The charges appear to be related to the appellant's failure to create fire breaks on her property in the respondent's local government district.
The magistrate imposed fines of $250 and $500 and ordered the appellant to pay the respondent's costs.
CACR 86 of 2014: the appellant's appeal to the Supreme Court is dismissed pursuant to a springing order
The last date for the appellant to apply for leave to appeal to the Supreme Court against her convictions was 19 September 2013. She did not file an appeal notice until 1 October 2013.
By letter dated 2 October 2013, an Assistant/Supervisor Civil of the Supreme Court wrote to the appellant and informed her that the appeal could not proceed further until she lodged the following documents:
(a)a copy of the transcript of the proceedings in the Magistrates Court;
(b)a copy of the prosecution notice for each charge, certified by the Magistrates Court; and
(c)a certificate of service certifying that the respondent had been served with the appeal notice and the other documents referred to in the letter.
See r 65 of the Criminal Procedure Rules 2005 (WA) read with s 10(1) of the Criminal Appeals Act.
The letter dated 2 October 2013 also informed the appellant that if the documents in question were not lodged with the Supreme Court Registry by 11 November 2013, the matter would be referred to a judge who may, at his or her discretion, dismiss the appeal.
As at 20 November 2013, the appellant had not lodged the relevant documents with the Supreme Court Registry. On that date, the Supervisor Civil of the Supreme Court referred the matter to Hall J.
On 25 November 2013, Hall J made the following orders pursuant to r 60 of the Criminal Procedure Rules:
1.Within 14 days of service of this order the appellant is to file an affidavit explaining why the appeal was not commenced within time;
2.Within 14 days of service of this order, the appellant is to file a copy of the transcript of the proceedings in the Magistrates Court;
3.Within 14 days of service of this order the appellant is to file a certified copy (that is, the magistrate's copy which has been certified by the Magistrates Court) of the prosecution notice;
4.Within 21 days of service of this order, the documents referred to in orders 1, 2 and 3, together with a copy of the appeal notice, are to be served on the respondent;
5.Within 2 days of the service referred to in Order 4, the appellant is to file a service certificate (Form 21);
6.If any of orders 1, 2, 3, 4 or 5 are not complied with in the time allowed, the appeal will stand dismissed.
By letter dated 26 November 2013, a Customer Service Officer of the Supreme Court's Listings Office sent to the appellant a copy of the orders made by Hall J.
As at 19 December 2013, the appellant had not complied with the orders made by Hall J. On that date the matter was referred to Corboy J.
On 27 December 2013, Corboy J ordered that the appeal be dismissed by virtue of the appellant's non‑compliance with the orders made by Hall J.
On 27 December 2013, a Customer Service Officer of the Supreme Court's Listing Office sent to the appellant a copy of the order made by Corboy J.
CACR 86 of 2014: the appellant applies for an extension of time to appeal to this court against the dismissal of her appeal to the Supreme Court
On 7 May 2014, the appellant filed an appeal notice in this court. She applied for an extension of time to apply for leave to appeal against the dismissal of her appeal to the Supreme Court. The last date for appealing was 5 February 2014.
On 13 May 2014, the appellant filed an application in the appeal. In the application the appellant applied for:
•The action, conviction and costs against me be dismissed.
•Council be ordered to note this in Council Minutes immediately after this decision.
•I seek a stay of the order made by Justice Corby [sic] on the 27th December 2013.
•Costs of $91.00 be awarded to me for Transcripts and parking.
On 16 June 2014, Mazza JA dismissed the application filed on 13 May 2014.
On 2 July 2014, the appellant filed the appellant's case. The appellant purports to list 16 grounds of appeal in the appellant's case. The grounds comprise various assertions of fact. They are not proper grounds of appeal.
On 5 September 2014, this court (McLure P, Buss & Mazza JJA) heard the appellant's application for an extension of time to apply for leave to appeal against the dismissal of her appeal to the Supreme Court.
I have read and considered:
(a)the documents which the appellant has filed in the appeal to the Supreme Court and in the appeal to this court; and
(b)the document handed up by the appellant at the hearing on 5 September 2014.
I am not persuaded that the appellant has offered a satisfactory explanation for her failure to comply with the orders of Hall J made on 25 November 2013.
Also, I am not persuaded that the appellant has offered a satisfactory explanation for her delay in commencing the appeal to this court.
Further, on the material before this court I am not satisfied that any of the grounds of appeal listed in the appellant's case has a reasonable prospect of success.
CACR 86 of 2014: conclusion
The appellant's application for an extension of time to apply for leave to appeal to this court should be dismissed.
MAZZA JA: I agree with Buss JA.