Farkas v Thomason
[2020] WASC 67
•6 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: FARKAS -v- THOMASON [2020] WASC 67
CORAM: SMITH J
HEARD: 22 JANUARY 2020 AND BY WRITTEN SUBMISSIONS FILED 5 FEBRUARY 2020
DELIVERED : 6 MARCH 2020
FILE NO/S: SJA 1061 of 2019
BETWEEN: ZOLTAN FRED FARKAS
Appellant
AND
CHRISTOPHER THOMASON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE R D YOUNG
File Number : PE 63330 of 2017
Catchwords:
Criminal law - Appeal against conviction - Whether magistrate erred in law - Where convicted for speeding - Where alleged that speed measuring equipment not proved to be accurate - Whether respondent required to tender certificate as to accuracy of speed measuring equipment - Effect of presumption s 117(4) Road Traffic (Administration) Act 2008 (WA)
Criminal law - Application to adduce additional evidence not in admissible form
Criminal law - Procedural fairness - Whether appellant received fair hearing where appellant denied opportunity to cross‑examine as to an issue of law
Legislation:
Australia Act 1986 (Cth), s 2(1)
Constitution Act 1889 (WA), s 2(1)
Criminal Appeals Act 2004 (WA), s 9(1), s 9(2), s 39, s 40(1)(e)
Criminal Code, s 12(1)(a), s 12(1)(b)
Criminal Procedure Act 2004 (WA), s 3(1)
Magistrates Court Act 2004 (WA), s 6(1), s 7(1), s 11(2)(a)
Road Traffic (Administration) Act 2008 (WA), s 9(1), s 39, s 79, s 117, s 117(1), s 117(2), s 117(2)(a), s 117(4), s 117(5), s 117(7), s 160(1)
Road Traffic Act 1961 (SA), s 175(3)(ba)
Road Traffic Act 1974 (WA), s 98A
Road Traffic Code 2000 (WA), reg 9(1), reg 11(3), reg17(1)
Result:
Leave to appeal refused
Application to adduce additional evidence refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr T E Ledger |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Attorney-General (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237
CD and EF v Chief Executive Officer, Department for Child Protection and Family Support [2017] WASC 126
Davis v Armstrong (1993) 17 MVR 190
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Fantakis v NSW Commissioner of Police [2013] NSWSC 1333
Golestani v Watson [2019] WASC 387
Hands v Baker [2009] WASC 46; (2009) 52 MVR 156
Hanton v Police [2018] SASC 96; (2018) 131 SASR 226; (2018) 85 MVR 49
Illich v Woodburn [2004] WASCA 148; (2004) 41 MVR 65
Maccione v Doughty [2019] WASC 375
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Police v Butcher [2016] SASC 130; (2016) 77 MVR 298
R v Kelly; Ex parte Hoang Van Duong (1981) 28 SASR 271
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358
Sprylan v Wyborn [2019] WASC 227
Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1
Waite v Hennah [2019] WASC 468
Yu v The State of Western Australia [2019] WASCA 197
SMITH J:
1.0 The appeal
The appellant, Mr Zoltan Fred Farkas, seeks leave to appeal against conviction for an offence that on 28 September 2017, at Nedlands, he drove a vehicle in excess of the speed limit, namely, 108 km/h within a speed zone of 60 km/h, contrary to reg 11(3) of the Road Traffic Code 2000 (WA).
Following a trial, before his Honour Magistrate Young, on 29 March 2019, Mr Farkas was convicted of the offence. After the conviction was entered, Mr Farkas was fined $1,200 and ordered to pay costs of $190.85.
Leave of the court is required for each ground of appeal.[1] Leave to appeal must not be given on a ground unless the court is satisfied that it has a reasonable prospect of succeeding.[2]
[1] Criminal Appeals Act 2004 (WA) s 9(1).
[2] Criminal Appeals Act 2004 (WA) s 9(2).
Mr Farkas requires an extension of time within which to appeal and makes an application to adduce additional evidence in the appeal. Mr Farkas seeks to adduce additional evidence as to the speed that the vehicle he was driving at the time of the offence, was incapable of reaching a speed of 110 km/h. This application is considered in these reasons in [5.0].
2.0 Proposed grounds of appeal and the result
The proposed grounds of appeal are outlined in the appeal notice. Mr Farkas also raised additional grounds in the brief submissions filed by him on 23 December 2019. Making allowance for the fact that Mr Farkas is unrepresented, I have dealt with the additional matters raised in his written submissions as if they were also set out in the appeal notice filed on 7 May 2019.
The proposed grounds Mr Farkas appears to raise can be distilled as six separate grounds:
1.The magistrate denied him procedural fairness by denying him the opportunity to cross‑examine Senior Constable Thomason in respect of the laws that applied.
2.Senior Constable Thomason was not competent to give evidence, and the prosecution knew this prior to calling Senior Constable Thomason to give evidence.
3.There was no evidence of 'jurisdiction' in that the prosecution did not provide evidence as to why the Constitution and the law applied to him.
4.The magistrate erred in law in finding the offence proven in the absence of a certificate certifying that the LTI 20/20 Tru Speed speed measuring device (TruSpeed Laser) was accurate (at the time the offence occurred) and the certificate being discovered to Mr Farkas prior to the commencement of the prosecution and tendered into evidence.
5.Error is established as there was no evidence of any injury or damage to property or to any party.
6.The magistrate and the decision of any judge sitting on this appeal is likely to be infected by bias as officers of the State Solicitor's Office and the police are state employees.
For reasons that follow, I am of the opinion that the application for an extension of time be refused, leave to appeal on each ground of appeal be refused, and the appeal be dismissed. The reason why I have formed this opinion is that none of the proposed grounds of appeal advanced in the appeal notice or in the submissions filed by Mr Farkas have a reasonable prospect of success.
3.0 Background ‑ the offence, issues raised by the appellant at first instance and the magistrate's reasons for conviction
3.1 The prosecution evidence, the questions Mr Farkas asked in cross‑examination and the questions he sought to ask of the witness
At the trial, Mr Farkas appeared in person, and the respondent, Senior Constable Christopher Michael Thomason, was represented by a police prosecutor.
Senior Constable Thomason was the only witness called on behalf of the prosecution and his evidence was that, on 28 September 2017, at about 8.50 am, he was stationed on Winthrop Avenue in Nedlands south of Monash Avenue intersection and was detecting the speed of vehicles travelling in a northerly direction. The speed limit on that section of Winthrop Avenue is 60 km/h.
To detect the speed of vehicles, Senior Constable Thomason was using a TruSpeed Laser.
Senior Constable Thomason observed a Holden Calais sedan, registration number 1GER548, appeared to be travelling well in excess of 100 km/h, in a northerly direction. Senior Constable Thomason trained the TruSpeed Laser on the vehicle and obtained a reading of 110 km/h at a distance of 199.4 m.
Senior Constable Thomason moved out onto Winthrop Avenue and indicated to the vehicle to turn into nearby Hardy Road and stop. When the vehicle came to a stop he spoke to the driver, Mr Farkas. However, before he did so, he activated a personal recording audio/visual device and recorded the conversation.
The video/audio recording of the conversation between Senior Constable Thomason and Mr Farkas was tendered into evidence (as exhibit 2). The video/audio recording shows Senior Constable Thomason approaching the driver's side of the vehicle and introducing himself to Mr Farkas. Senior Constable Thomason can then be seen to show Mr Farkas the reading recorded on the TruSpeed Laser of 110 km/h. After this occurred, the video/audio recorded the following exchange between Senior Constable Thomason and Mr Farkas:
Senior Constable Thomason - you were in a 60 [kilometres per hour] zone and I just checked your speed at 110 [kilometre per hour]. Is there any reason for that?
Mr Farkas - I was just trying to pass a car, I needed to go into the [left] lane because I have an appointment at the [nearby] hospital.
Senior Constable Thomason - I don't think you'll be making your appointment at the hospital because 110 [kilometres per hour] is 50 kilometres [per hour] over the speed limit.
Mr Farkas - I apologise.
Senior Constable Thomason explained to Mr Farkas that his vehicle would be seized. Mr Farkas replied:
Can't you drop it back another 5 kilometres, please sir? I'm disabled, sir. Please.
Senior Constable Thomason asked why he was driving like a lunatic. Mr Farkas replied:
I don't have any good reason, sir. That was it, I told you, sir.
After Senior Constable Thomason saw that Mr Farkas had a disability sticker on the windscreen of his vehicle, he exercised his discretion not to seize the vehicle and issued Mr Farkas with a traffic infringement notice, alleging a speed of 108 km/h in a 60 km/h zone, and a penalty of $1,200.
At the trial, it was Senior Constable Thomason's evidence‑in‑chief, that prior to commencing duty he tested the TruSpeed Laser in accordance with the manufacturer's specifications and found it to be working correctly.[3] When cross‑examined, he stated that he had also tested the TruSpeed Laser again at the end of his shift,[4] and was asked by Mr Farkas to describe the steps he undertook to test the device. His answer to this question was as follows:[5]
The first step is to check that it hasn't got any damage and the seals are intact and it's inside the calibration date. That's step one. The second step is to turn the device on and make sure that it's working correctly and it does an internal test and the display reads correctly. The third step is what's called a scope alignment test, where you make sure that the transmitting and receiving optics are in line with the sight aiming reticle that's in the top sight. And then after that you do a fixed distance zero speed velocity test, which is on a certified range. You check that the device reads the correct distance and shows a zero velocity, because you're aiming it at something that's stationary.
[3] ts 29 March 2019, page 4.
[4] ts 29 March 2019, page 9.
[5] ts 29 March 2019, page 9.
Mr Farkas then asked 'And you did all these four tests?' Senior Constable Thomason replied:
Yes, I do them every day before I take the device out and when I ‑ at the completion of my shift.
Mr Farkas then asked Senior Constable Thomason whether there was any documentary evidence of the test he conducted, to which Senior Constable in effect replied, no, that it was his oral evidence that he had tested the TruSpeed Laser.[6]
[6] ts 29 March 2019, page 9.
The only other question Mr Farkas sought to put to Senior Constable Thomason in cross‑examination was a question that was not allowed by the magistrate. The question was, 'Did you determine on your own that just because you saw me physically in Western Australia that the laws apply and I might be violating them and that gave you jurisdiction?' Before Senior Constable Thomason could reply, the magistrate intervened and told Mr Farkas that every person who commits an offence in Western Australia is liable to the laws of Western Australia. Mr Farkas then put to his Honour, 'So is it your belief that the Constitution and the laws apply to me?' to which the magistrate replied, 'Yes. And me. And the [prosecuting] sergeant. And everyone else in this [court] room'.[7]
[7] ts 29 March 2019, page 8.
At the conclusion of the prosecution case, the prosecutor tendered into evidence, without objection from Mr Farkas, (as exhibit 1) a notice published in the Government Gazette on 15 April 2011 made by the Minister for Transport under s 98A of the Road Traffic Act 1974 (WA), stating that:
Under subsection 98A(2) of the Road Traffic Act 1974 I approve as types of laser apparatus for ascertaining the speed at which a vehicle is moving ‑
…
(b)apparatuses that bear the name LTI 20/20 TruSpeed.
3.2 Mr Farkas' evidence
When Mr Farkas gave evidence, it was clear that the only element of the offence that he disputed was whether the prosecution could prove beyond reasonable doubt that he drove in excess of the speed zone, namely at 108 km/h, being 48 km/h above the speed limit.
Mr Farkas' evidence was that:
(a)on the day in question he was driving to a neurological appointment at Sir Charles Gairdner Hospital in his eight cylinder, 2011 model, Holden Calais when he saw Senior Constable Thomason motion towards him to pull over;
(b)the day was overcast and it had just stopped raining;
(c)he did not believe that he had been speeding as he had stopped and turned into a side street within 200 m of where Senior Constable Thomason had told him that his vehicle was travelling at 110 km/h (having travelled approximately 200 m after entering Winthrop Avenue to the point where Senior Constable Thomason said he had trained the TruSpeed Laser on his vehicle).
Although, Mr Farkas disputed that his vehicle could have been travelling at the speed of 110 km/h, he did however concede that he was possibly speeding and that, his vehicle was not travelling at 60 km/h. Mr Farkas also conceded that he did not check his speedometer when he overtook the other vehicle.
When it was put to Mr Farkas in cross‑examination that he did not seem to dispute the speed (that was recorded on the TruSpeed Laser) when Senior Constable Thomason spoke to him, Mr Farkas said that he felt a 'bit intimidated' and he did not want Senior Constable Thomason to seize his vehicle as it was his only means of transport and he needed his vehicle for cancer and physio appointments.
3.3 The magistrate's findings
The magistrate made the following findings:
(1)Mr Farkas is charged on 28 September 2017 that he was exceeding the speed limit by doing 108 km/h in a 60 km/h zone. The evidence is that the speed of the vehicle was recorded as 110 km/h by a TruSpeed Laser, which is approved speed measuring equipment, operated by a police officer, which evidence satisfies the requirements of s 117 of the Road Traffic (Administration) Act 2008 (WA).
(2)The prosecution is obliged to prove the case, beyond a reasonable doubt. Mr Farkas has no onus on him to prove anything, subject to s 117 of the Road Traffic (Administration) Act.
(3)Section 117 of the Road Traffic (Administration) Act provides that if approved speed measuring equipment is operated by a police officer or other certified person, it is deemed to be accurate, and thereafter an onus passes to the accused to satisfy the court, on the balance of probabilities, that he (or she) was moving at a different speed to that alleged.
(4)(In this matter) the prosecution must prove, beyond reasonable doubt, that Mr Farkas drove a vehicle on a road. This (element of the offence) is not in dispute. The prosecution must also prove that the speed at which the vehicle was travelling was over 60 km/h. Senior Constable Thomason gave unchallenged evidence about this, and this evidence does not appear to be in dispute.
(5)The issue in dispute is whether Mr Farkas (when driving the vehicle) was exceeding the speed limit and speeding to the extent alleged (110 km/h).
(6)The evidence of Senior Constable Thomason is that he tested the TruSpeed Laser before and after use. The TruSpeed Laser was approved for use (to ascertain the speed at which a vehicle is moving by the Gazette notice). Therefore, 'I'm satisfied, beyond reasonable doubt, that section 117 deems the speed obtained by the use [of the TruSpeed Laser] to be prima facie evidence of the speed that the vehicle [driven by Mr Farkas] was travelling'.
(7)Mr Farkas' evidence and submissions were that:
(a)he agreed that he was pulled over by the police on his way to Sir Charles Gairdner Hospital, was shown the display on the TruSpeed Laser (recording the speed of 110 km/h) and did not argue with the police officer because he was worried that that might lead the officer to proceed with a reckless driving charge and impound his vehicle, so he took a passive approach;
(b)he did not check the speedometer on his vehicle, was unable to say what speed his vehicle was travelling, and conceded he may well have exceeded the speed limit; and
(c)he did not believe his vehicle was travelling at 110 km/h on grounds that:
(i)he did not have enough time (and there was insufficient distance between where he turned his vehicle onto Winthrop Avenue and where he was pulled over by the police officer) to get his vehicle to travel at the alleged speed;
(ii)if he had been going at the speed alleged he would not have been able to slow down sufficiently to turn into Hardy Road (the side street where he stopped to speak to Senior Constable Thomason); and
(iii)his vehicle would not have been able to reach that speed or accelerate to the level of that speed, given the wet conditions (of the road).
(8)None of the foregoing matters (stated by Mr Farkas) are sufficient, to displace the prima facie (presumption) pursuant to s 117 of the Road Traffic (Administration) Act. To accept the evidence of and submission that Mr Farkas did not have enough distance to reach that speed, given that he was driving a V8 model car which he conceded can accelerate quite rapidly, the court would have to have before it expert evidence as to distance and speed to overcome the effect of (the presumption raised by) s 117.
(9)(In circumstances where) Mr Farkas could not say what speed his vehicle was travelling at, and could not say that he checked the speedometer (of his vehicle), his evidence is not capable of displacing the effect of s 117.
Consequently, the magistrate found that he was satisfied beyond reasonable doubt that Mr Farkas was driving a vehicle at a speed in excess of 40 km/h in a 60 km/h zone. His Honour entered a conviction for the offence and imposed an infringement penalty, having accepted that the speeding was relatively short solely for the purpose of effecting an overtaking manoeuvre.
4.0 Conclusion - proposed grounds 1, 2 and 3
At the heart of proposed grounds 1, 2 and 3 appears to be an argument by Mr Farkas that the prosecution, through its witness, Senior Constable Thomason, is required to prove that the law of Western Australia applies to him. In particular, that the Road Traffic Code and the Road Traffic (Administration) Act applies to him.
Whilst a judicial decision-maker must conduct a trial in accordance with the rules of procedural fairness so that a person whose rights are affected is given a fair hearing,[8] a fair hearing does not require a magistrate to allow an unrepresented litigant to conduct her or his case in any way whatsoever.[9] A magistrate has a wide discretionary power to contain cross‑examination within proper limits and to disallow repetitious prolix or unnecessary questions.[10]
[8] Sprylan v Wyborn [2019] WASC 227 [160].
[9] Fantakis v NSW Commissioner of Police [2013] NSWSC 1333 [39].
[10] R v Kelly; Ex parte Hoang Van Duong (1981) 28 SASR 271, 273 (King CJ).
The application of the law of Western Australia to Mr Farkas is not a matter of evidence, it is a matter of law.
The Western Australian Parliament is competent to make laws applying to acts or omissions which take place in Western Australia, and when doing so has power as ample and plenary as that of the Imperial Parliament (United Kingdom Parliament).[11]
[11] Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1, 10 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey & Gaudron JJ).
The Road Traffic Code is subsidiary legislation made pursuant to the Road Traffic Act 1974 (WA). The Road Traffic Act, the Road Traffic (Administration) Act, the Criminal Code and the Magistrates Court Act 2004 (WA), are Acts of the Western Australian Parliament. Each of these Acts are made pursuant to the power conferred on the Legislative Council and Legislative Assembly pursuant to s 2(1) of the Constitution Act 1889 (WA) and s 2(1) of the Australia Act 1986 (Cth) to make laws for the peace, order, and good government of the State of Western Australia.
Pursuant to s 12(1)(a) and s 12(1)(b) of the Criminal Code, the criminal law of an offence under the Criminal Code or any other law of Western Australia (which includes an offence the subject of this appeal which arises under reg 11(3) of the Road Traffic Code) is deemed to be committed if, the elements necessary to constitute the offence exist; and at least one of the acts, omissions, events, circumstances or states of affairs that make up those elements occurs in Western Australia.
Pursuant to s 6(1), s 7(1) and s 11(2)(a) of the Magistrates Court Act, the Magistrates Court is constituted by magistrates who (subject to prescribed circumstances) each sit alone and are conferred with jurisdiction to hear and determine, among other matters, a charge of a simple offence. An offence under reg 11(3) of the Road Traffic Code is a simple offence.[12]
[12] Criminal Procedure Act 2004 (WA) s 3(1).
In circumstances where the magistrate had heard evidence that the offence for which Mr Farkas was charged occurred on the day in question in Nedlands, being a suburb of Perth, quite clearly within the limits of the State of Western Australia, and this was not an issue in dispute in the trial, the magistrate properly disallowed the question addressed to Senior Constable Thomason about the jurisdictional limits of the laws of Western Australia. Plainly, any question put to Senior Constable Thomason and answer given about this issue would not only be irrelevant, but would also be inadmissible as the answer to the question is a matter of law in respect of which can only properly be determined by the magistrate as he did when he intervened and answered the question Mr Farkas sought to put to the Senior Constable.
Mr Farkas also contends that, at the trial, the prosecution did not adduce evidence to establish the legal basis upon which Senior Constable Thomason used the TruSpeed Laser to detect the speed of his vehicle and that 'legal conclusions' were made against him, which included that there was probable cause and jurisdiction to stop and investigate him.
This argument is also misconceived. Senior Constable Thomason is authorised by law to use speed measuring equipment to measure the speed of vehicles travelling on roads in Western Australia, to stop any person who contravenes an offence provision of the Road Traffic Code, and issue an infringement notice for an offence.[13]
[13] Road Traffic (Administration) Act (WA) s 39 and s 79.
In this matter, the relevant statutory provisions which authorised Senior Constable Thomason to use the TruSpeed Laser to apprehend Mr Farkas were as follows:
(a)Section 117(4) and (7) of the Road Traffic (Administration) Act provides:
(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.
(b)Section 117(1) of the Road Traffic (Administration) Act defines 'speed measuring equipment' to mean apparatus of a type approved by the Minister under s 117(2)(a) which provides that the Minister may, from time to time, by notice published in the Gazette, approve of types of apparatus for the purposes of ascertaining the speed at which a vehicle is moving.
(c)Senior Constable Thomason gave evidence that, at the time of the alleged offence, he was a Senior Constable in the Traffic Enforcement Group and was using a TruSpeed Laser at the time he had cause to stop the vehicle driven by Mr Farkas which was speed measuring equipment approved by the relevant Minister.
(d)Regulation 11(3) of the Road Traffic Code provides that 'A person shall not drive a vehicle in a speed zone, at a speed exceeding the speed limit applicable to the zone'.
(e)Regulation 9(1) of the Road Traffic Code provides that a person who contravenes or fails to comply with any of the provisions of the Road Traffic Code, commits an offence.
For these reasons, proposed grounds 1, 2 and 3 have no prospects of success.
5.0 Conclusion ‑ proposed ground 4
5.1 Application to adduce additional evidence
At the hearing of the appeal, it was evident that Mr Farkas had not read the written submissions filed on behalf of the respondent. Consequently, at the conclusion of the appeal an order was made by the court that Mr Farkas file and serve written submissions in reply to the respondent's submissions by 6 February 2020.
Mr Farkas filed written submissions by serving a copy on the State Solicitor's Office on 5 February 2020. The written submissions rely upon additional material that Mr Farkas now seeks to have admitted in the appeal.
The additional material that Mr Farkas seeks to admit into the appeal is:
(a)an email from Jason at Holden Customer Care sent to Mr Farkas on 3 February 2020 stating, 'the Holden Calais could go from 0‑110 km/ph in 5.8 seconds. However, please be advised that these figures may vary depending on the current condition and service history of the vehicle';
(b)a printout from a web page published by the Queensland Government titled 'Stopping distances: speed and braking' containing a graph upon which calculations can be made how long it takes to bring to a stop an average family car; and
(c)a printout of parts of a Main Roads Western Australia map depicting latitude and longitude of the Winthrop Avenue and Mounts Bay Road (Stirling Highway) intersection and the latitude and longitude of the intersection of Winthrop Avenue and Hardy Road.
From this material, Mr Farkas seeks to make the following submissions:
(1)At the hearing before the magistrate it was always his case that the Holden Calais he was driving cannot reach the speed of 110 km/h and then come to a complete stop within 400 m.
(2)According to Senior Constable Thomason, the TruSpeed Laser detected the vehicle was travelling at 110 km/h at 199 m away from his position (in written statement).
(3)The email from Holden Customer Care establishes that his Holden Calais is only capable of reaching the speed of 110 km/h in 5.83 seconds (acceleration from 0-110 in dry flat conditions) which is 18.87 m per/sec of acceleration with a total of 320.07 m travelled (formula from Omni Calculator = (vf ‑ vi) / t) in dry conditions with no resistance (no incline).
(4)The distance from Mounts Bay Rd (Stirling Highway) to Hardy Rd is 400 m (Main Roads Western Australia) with an incline of about 45 degrees.
(5)According to the Queensland Government's website, the emergency braking distances from 110 km/h to a complete stop in wet conditions is 46+ m reaction time and 97 m stopping distance, being a total of 143 m, in an average size family car with no incline.
(6)The Holden Calais is a large family car and is a lot heavier (than an average size family car) which has even longer stopping distances.
(7)In dry and flat conditions, from acceleration to complete stop is 463.07 m which is 63.07 m longer than the actual distance, it was physically impossible for his vehicle to be travelling at the claimed speed.
5.1.1 Legal principles ‑ admission of additional evidence in an appeal
Pursuant to s 39 of the Criminal Appeals Act 2004 (WA), an appeal court must decide an appeal on the evidence and material that was before the lower court. However, pursuant to s 40(1)(e) of the Criminal Appeals Act, the court has discretion to admit any other evidence. The principles that apply to admission of evidence that could have been available at the time of the trial at first instance (new evidence) and evidence that could not have been available at the time of trial (fresh evidence) is different.
In Yu v The State of Western Australia, the Court of Appeal described the difference between fresh evidence and new evidence, and set out the principles that apply to the admission of both:[14]
The unavailability of fresh evidence at trial gives rise to a miscarriage of justice if the appellate court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before it at trial. For this purpose, 'fresh' evidence is evidence which either did not exist at the time of the trial or which could not then, with reasonable diligence, have been discovered. 'New' evidence is evidence which was available at the trial or which could, with reasonable diligence, then have been discovered. There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available unless the new evidence establishes that the accused should not have been convicted.
Of course, the ultimate question always remains whether a miscarriage of justice has occurred. As Gibbs CJ observed in Gallagher v The Queen:
'However, I would emphasize that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred.'
As the decision of the High Court in Gallagher illustrates, in assessing whether a miscarriage of justice arises from the absence of even fresh evidence at trial, this court has a responsibility to examine the probative value of the evidence, considered in light of the evidence led at trial. Gibbs CJ, Mason and Deane JJ all referred with approval to the following passage of Rich and Dixon JJ in Craig v The King:
'A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.'
In ARK v The State of Western Australia, Buss P (Mazza JA agreeing) made the following observation in relation to this court's approach to and assessment of additional evidence admitted in an appeal:
'The appellate court must decide on the relevance of the additional evidence. It must decide on the credibility of oral evidence and on the authenticity of documentary evidence. In some situations, the appellate court must decide whether it believes the additional evidence. In other situations, the appellate court will merely decide whether the evidence is capable of belief, and is likely to be believed, by reasonable people. After deciding on the relevance and credibility or authenticity of the additional evidence, the appellate court will evaluate its cogency in the context of the evidence adduced at the trial. The evidence which forms part of the trial record must be taken by the appellate court in the sense in which, having regard to the verdict, the jury must have accepted it. (citations omitted)'
[14] Yu v The State of Western Australia [2019] WASCA 197 [104] ‑ [107].
The observations of Pritchard J in respect of the principles to be applied when considering new evidence in CD and EFv ChiefExecutive Officer, Department for Child Protection and Family Support are also relevant:[15]
In the context of a criminal trial, where an appellant seeks to rely on new evidence - that is, evidence which was available at the time of the trial, or could, with reasonable diligence, have been discovered - no miscarriage of justice will arise simply because the new evidence was not adduced. Rather, new evidence will only give rise to a miscarriage of justice if the appellate court is either satisfied that the accused is innocent or concludes that the accused should not have been convicted, and it is not sufficient that the new evidence reveals only a likelihood that the court below would have returned a verdict of not guilty. An appellant thus faces a high hurdle in overturning a finding of guilt based on new evidence.
5.1.2 Should the application to adduce additional evidence be allowed?
[15] CD and EF v Chief Executive Officer, Department for Child Protection and Family Support [2017] WASC 126 [119].
The additional material Mr Farkas seeks to have admitted in the appeal, if admissible, would necessarily have to be regarded as new evidence and not fresh evidence, as the documents he seeks to adduce are documents that could, with reasonable diligence, have been produced at the trial before the magistrate.
There are four reasons why the additional material Mr Farkas seeks to put before this court should not be accepted as evidence in the appeal.
Firstly, the material is not in an admissible form. In the form it is provided it is hearsay, as it is not evidence made by a person who has been called as a witness (including by affidavit) who is qualified to give such evidence.
Secondly, the evidence is in the nature of opinion evidence and can only be given by an appropriately qualified expert who is qualified to assess the speed of vehicles, the distance it takes for a particular vehicle to brake and come to a stop, and how the speed and braking capacity of a vehicle is affected by any incline in a road and road conditions. Some of the issues that could only be addressed by an expert are, whether the effect of wet conditions results in a vehicle travelling faster or slower (or not) and if there is an effect, how much precipitation has to be on a road before the speed of a vehicle is affected? Further, if the incline of a road is 45 degrees would that shorten the braking distance of a vehicle travelling at 110 km/h and if so, by how much?
Thirdly, even if the email from 'Jason' could be accepted into evidence, it is not clear from the contents of that email as to whether the speed calculation applies only in dry conditions, and what the effect could be if a vehicle is travelling in wet conditions.
Fourthly, and most importantly, as the respondent points out in written submissions filed on 5 February 2020, the premise upon which Mr Farkas' submissions rely is that the vehicle he was travelling in moved from a stationary position at the intersection of Mounts Bay Road (Stirling Highway) and Winthrop Avenue into Winthrop Avenue. Mr Farkas' evidence at the trial was simply that he overtook another vehicle when he, 'turned around at the set of lights' [at the intersection].[16] Consequently, in the absence of any evidence about whether Mr Farkas' vehicle was stationary at the intersection, even if the material sought to be admitted by him is accepted by the court, this material taken at its highest, does not conclusively demonstrate that Mr Farkas should not have been convicted of the offence.
[16] ts 29 March 2019, page 15.
For these reasons, the application to adduce additional evidence in the appeal should be dismissed.
5.2 Is error established on the evidence before the magistrate?
In proposed ground 4, Mr Farkas argues that error is established as there was no evidence before the magistrate that the TruSpeed Laser was accurate. In particular, Mr Farkas appears to raise an argument that error is established because the prosecution did not provide to him in pre-trial disclosure, a copy of a certificate certifying that at the time of the offence the TruSpeed Laser was producing accurate readings of speed.
As authority for this argument, Mr Farkas sought to rely upon two decisions of the Supreme Court of South Australia in which it was found in each case that the defendant had discharged the persuasive onus to show that when a speed gun had been tested on a particular date, the test was not capable of measuring whether the speed gun was accurate to the extent indicated in a certificate of accuracy signed by a Chief Inspector pursuant to s 175(3)(ba) of the Road Traffic Act 1961 (SA).[17]
[17] Police v Butcher [2016] SASC 130; (2016) 77 MVR 298 and Hanton v Police [2018] SASC 96; (2018) 131 SASR 226; (2018) 85 MVR 49.
However, these decisions of the South Australian Supreme Court provide no assistance to the argument sought to be put by Mr Farkas. The statutory scheme that applies to speed measuring equipment in Western Australia is different to the scheme that applies in South Australia.
For the prosecution to invoke s 117(4) of the RoadTraffic (Administration)Act, the speed measuring equipment must be used 'by an authorised person'. An authorised person is defined in s 117(1) of the RoadTraffic (Administration)Act to mean a police officer, or a person certified by the Commissioner of Police as being competent to use the equipment.
Where speed measuring equipment is used to detect the speed of the vehicle, there is no obligation to provide to an accused with a calibration or accuracy certificate. This obligation only arises where 'speed measuring and recording' equipment is used.[18] Speed measuring and recording equipment is equipment which records an image of the vehicle as well as recording the speed of a vehicle. The TruSpeed Laser is not such equipment. It is 'speed measuring equipment' only.
[18] See the recent discussion of this point in Waite v Hennah [2019] WASC 468 [36] ‑ [44].
For the prosecution to adduce prima facie evidence of the speed of a vehicle where speed measuring equipment is used by an authorised officer, the prosecution is able to rely on the presumption in s 117(4) and s 117(5) of the RoadTraffic (Administration)Act by tendering into evidence a notice published in the Gazette. Once the notice is tendered into evidence, there is prima facie evidence before the court that the speed reading recorded by the speed measuring equipment specified in the notice was the speed at which the vehicle in question was moving at the time that equipment was used.
In Hands v Baker, Blaxell J explained the effect of the presumption as it applied then by s 98A of the Road Traffic Act (which now applies by the operation of s 117(4) of the Road Traffic (Administration) Act):[19]
Once such evidence has been given, the burden passes to the defendant to displace the prima facie effect of the same. This onus is discharged if there is evidence which establishes on the balance of probabilities, that the speed of the vehicle that the defendant was driving, did not exceed the limit at the relevant time (Davis v Armstrong (1993) 17 MVR 190).
[19] Hands v Baker [2009] WASC 46; (2009) 52 MVR 156 [6]; applied in Maccione v Doughty [2019] WASC 375 [17] (Strk AJ) and Golestani v Watson [2019] WASC 387 [34] (Hall J); the effect of s 98A of the Road Traffic Act is the same as s 117(4) of the Road Traffic (Administration) Act. Pursuant to s 160(1) of the Road Traffic (Administration) Act a notice published under s 98A(2) of the Road Traffic Act that was in effect immediately before the commencement of the Road Traffic (Administration) Act is, on and from commencement day, to be taken to be a notice published under s 117(2) of the Road Traffic (Administration) Act.
In this matter, the prosecution tendered into evidence, without objection from Mr Farkas, (as exhibit 1) the Gazette notice (prescribed in s 117(2)) approving the LTI 20/20 TruSpeed for the purposes of ascertaining the speed at which a vehicle is moving. Once the notice was tendered into evidence, the burden of proof shifted to Mr Farkas to prove, on the balance of probabilities, that:
(a)the speed of the vehicle that he was driving did not exceed the speed limit of 60 km/h; and
(b)the speed of the vehicle he was driving was not 108 km/h.
In a recent matter that raised very similar facts involving the use of a TruSpeed laser speed measuring device by a police officer, Hall J in Golestani v Watson explained the effect of the presumption in s 117(4) as follows:[20]
The prosecution was entitled to rely on the presumption in s 117 of the Road Traffic (Administration) Act 2018 (WA) once it tendered the gazetted notice which stated that the LTI 20/20 TruSpeed was approved as speed measuring equipment. Officer Wong as a police officer was an authorised person within the meaning of s 117. Accordingly, Officer Wong's evidence that he had obtained a speed reading of 84 km per hour by use of the TruSpeed device was prima facie evidence of the speed at which the vehicle was moving at the time that equipment was used. In the absence of evidence of the contrary, that prima facie evidence becomes conclusive proof of those matters: See Davis v Armstrong, Hands v Baker and Maccione v Doughty.
[20] Golestani v Watson [2019] WASC 387 [34]. (footnotes omitted)
In Davis v Armstrong, Murray J explained how the evidentiary burden passes to a defendant to adduce evidence capable of displacing the prima facie effect of the presumption which has effect upon the tendering into evidence of the Gazette notice as evidence that the vehicle in question was travelling at the speed recorded by the speed measuring equipment:[21]
The use of the term 'prima facie evidence' in that context, is a reference to evidence which will prove the fact in issue in the absence of further evidence from the other side. Such evidence not being forthcoming, the prima facie proof becomes conclusive proof and, in the context of a prosecution such as this, enables the complainant to discharge the onus lying upon him to establish beyond a reasonable doubt that the speed of the applicant's vehicle on the occasion in question, did indeed exceed the 90 kph speed limit contrary to the Road Traffic Code 1975 Regulation 1001(1)(b).
…
Section 98A(5) preserved the applicant's capacity to introduce 'competent evidence' bearing on the question of his guilt of the offence of speeding with which he had been charged, and so it would work in the following way. It was competent for the prosecution to proceed upon the basis of the evidence given under s 98A(3) that the speed measuring equipment in question was used by PC Armstrong in relation to the applicant's vehicle and of the reading of speed which it gave. To be admissible, in my opinion, that evidence did not require to be supported by any evidence as to the accuracy of the machine. That evidence established the speed of the vehicle at a prima facie level. If it remained unchallenged, at the end of the day it became evidence capable of establishing the speed of the applicant's vehicle beyond a reasonable doubt and that would be the inevitable conclusion in those circumstances.
The burden then fell upon the applicant to adduce evidence capable of displacing the prima facie effect of the prosecution evidence: Madgen v Ashe, unreported; SCt of WA (Ng C); Library No 920324; 17 June 1992. In other words the onus was thrown upon the applicant to prove on the balance of probabilities that his speed did not exceed the limit at the relevant time. He could do that by displacing the prima facie evidentiary effect of the speed measuring device by throwing doubt on its accuracy by establishing that it had not been properly tested, or that the circumstances were such that it might not have operated accurately exclusively with respect to the applicant's vehicle, or he could seek to displace the prima facie evidentiary effect of the speed measuring equipment by persuading the court of trial to accept evidence, either his evidence or that of other witnesses, to the effect that he was not exceeding the speed limit: Cazzol v Fuss, unreported; SCt of SA (O'Loughlin J); Judgment No 430; 22 January 1988.
[21] Davis v Armstrong (1993) 17 MVR 190, 192; applied in Illich v Woodburn [2004] WASCA 148; (2004) 41 MVR 65 [17] ‑ [18] (Jenkins J).
As Murray J clearly pointed out, the effect of the presumption is that it is not necessary for the prosecution to lead any evidence as to the accuracy of 'speed measuring equipment'.
When all of the evidence was put before the magistrate, it cannot be established that his Honour erred in finding that Mr Farkas did not lead sufficient evidence at trial to displace the prima facie effect of the presumption in s 117(4) of the Road Traffic (Administration) Act.
Senior Constable Thomason gave uncontradicted evidence that he had tested the TruSpeed Laser equipment before and after his shift on the day in question in accordance with the manufacturer's instructions, and that when he trained the TruSpeed Laser on the vehicle driven by Mr Farkas he obtained a speed reading of 110 km/h.
The prosecution tendered into evidence, without objection from Mr Farkas, the Gazette notice approving the TruSpeed Laser as speed measuring equipment. On the tender of this notice there was before the court, prima facie evidence of the speed at which Mr Farkas' vehicle was moving at the time the TruSpeed Laser was trained on his vehicle. Once the notice was tendered into evidence, the burden of proof shifted to Mr Farkas to prove, on the balance of probabilities, that the speed of the vehicle he was driving did not exceed the speed limit of 60 km/h and his vehicle was not moving at 110 km/h.
The magistrate properly found that the evidence given by Mr Farkas was not sufficient to discharge the onus on him, on the balance of probabilities, to displace the presumption. The findings made by the magistrate in this regard were clearly open to him on the evidence.
For these reasons, proposed ground 4 has no prospect of success.
6.0 Conclusion ‑ proposed ground 5
In proposed ground 5, Mr Farkas appears to attempt to put an argument that whether a person was injured or property was damaged as a result of the offence is relevant to whether he should have been convicted of the offence.
This proposed ground has no prospect of success. Injury to a person or property damage is not an element of the offence of speeding and is therefore not a relevant consideration in any determination as to whether an offence of speeding is made out.
However, the question of whether as a result of an offence a person was injured or property was damaged is a matter that would be relevant to the sentencing process.
In this matter, Mr Farkas did not raise this point when putting his case to the magistrate. However, even if he did it would have made no material difference to the penalty imposed by the magistrate. It is clear from his Honour's sentencing remarks that his Honour regarded the offence as transitory and for this reason, his Honour imposed the modified penalty prescribed in reg 17(1) of the Road Traffic Code, which was the same penalty imposed by the infringement notice issued to Mr Farkas by Senior Constable Thomason.
For these reasons, proposed ground 5 has no prospect of success.
7.0 Conclusion ‑ proposed ground 6
In proposed ground 6, Mr Farkas seeks to argue that a question arises as to the independence or impartiality of the magistrate and/or a judge hearing his application for leave to appeal and the appeal necessarily arises because the States Solicitor's Office (being the legal officers who act for Senior Constable Thomason as the respondent to this appeal) and police officers are employees of the State of Western Australia.
Apprehended bias must be firmly established. The suspicions of the ultra‑sensitive, paranoid or cynical must not be allowed to determine the legal standard of impartiality.[22] A vague sense of unease or disquiet is not enough.[23]
[22] S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, 374 (Kirby P).
[23] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [135] (Kirby J).
This proposed ground is entirely misconceived. Firstly, the prosecution for the offence was conducted before the magistrate by a police prosecutor and not by legal officers of the State Solicitor's Office. Secondly, police officers are not employees of the State of Western Australia. It is well‑established that officers of the police force are independent officeholders exercising original authority in the execution of their duties. What this means is that police officers are entrusted by the operation of the common law and legislation to apply the law. In Attorney-General (NSW) v Perpetual Trustee Co Ltd, Kitto J explained:[24]
The matter may be summed up by saying that a member of the police force is under an obligation to perform duties of which some are statutory, some derive from the common law, and all are of a public character; and although a member of the police force is bound to obey the lawful orders of his superiors … neither they nor the Crown itself can lawfully require him to abstain from performing the duties which the law imposes upon him with respect to the preservation of the peace and the apprehension of offenders, or can lawfully direct the detailed manner in which he shall perform those duties, and neither they nor the Crown itself ... can be held liable for acts done by a constable in relation to the duties of his office.
[24] Attorney-General (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237, 303 ‑ 304.
Thirdly, even if a police officer when called upon to investigate and apply the law could be regarded as an employee:
(a)there is no principle known at law which would prohibit the police officer being represented in court by a legal practitioner who is employed by a department or agency that forms part of the Crown in right of the State of Western Australia; and
(b)this could not raise an apprehension of bias on behalf of a judicial officer (in this case either the magistrate or a judge hearing the appeal). An apprehension of bias cannot be raised unless a party to proceedings (who alleges an apprehension of bias) is able to articulate a logical connection between the proceedings or an interest in the proceedings, or an interest in a party to the proceedings and the interest and connection is properly articulated.[25]
[25] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6] ‑ [8] (Gleeson CJ, McHugh, Gummow & Hayne JJ).
For these reasons, proposed ground 6 has no prospect of success.
8.0 The orders that should be made to dispose of the appeal including orders as to costs
The respondent's counsel provided a draft bill of costs of preparation for the appeal and for attending the appeal, totalling $4,455. Having reviewed the bill which claims a total of 18 hours work by a junior legal practitioner at a rate of $220 an hour and having considered the issues raised in this appeal, I am of the opinion that the amount claimed is excessive. This is principally because the issues raised in the appeal did not raise any questions which have not been conclusively determined on a number of occasions in well-established and well‑known authorities. Further, the only real point of contention raised and pressed in this appeal by Mr Farkas was raised in proposed ground 4, which point was recently squarely addressed by this court in Golestani v Watson[26] and Waite v Hennah.[27]
[26] Golestani v Watson [2019] WASC 387.
[27] Waite v Hennah [2019] WASC 468.
For these reasons, while it is clear that an award of costs should be made to the successful party to this appeal, I am only prepared to allow an amount of costs of $880 (being an amount equivalent to four hours preparation).
Finally, I am of the opinion that orders should be made that the application to extend time should be refused, the application to adduce fresh evidence be refused, leave to appeal on each ground should be refused, the appeal dismissed and Mr Farkas be ordered to pay the respondent's costs of the appeal fixed at $880. As the court has been informed that Mr Farkas is in receipt of a disability pension, I will hear further from him as to whether he requires time to pay and whether an order should be made for the payment of costs in instalments.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NM
Research Orderly to the Honourable Justice Smith6 MARCH 2020
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