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Farkas v Thomason

Farkas v Thomason

Case [2020] WASC 67 6 March 2020

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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)…

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 Farkas v Thomason

Details

AGLC: Farkas v Thomason [2020] WASC 67
Case: [2020] WASC 67
Decision Date: 6 MARCH 2020

CaseChat Overview and Summary

In the case of Farkas v Thomason, the appellant was convicted of speeding in the Magistrates Court of Western Australia. The respondent alleged that the speed measuring equipment used was not proven to be accurate. The appellant sought to argue that the respondent was required to tender a certificate proving the accuracy of the equipment and that the presumption under s 117(4) of the Road Traffic (Administration) Act 2008 (WA) did not apply. Additionally, the appellant argued that the court should have allowed the introduction of additional evidence in an inadmissible form and that they were denied procedural fairness due to the inability to cross-examine on an issue of law.

The legal issues before the court included whether the magistrate erred in law by not requiring the respondent to tender a certificate as to the accuracy of the speed measuring equipment and whether the presumption under s 117(4) of the Act applied. Furthermore, the court had to consider whether the application to adduce additional evidence not in an admissible form was justified and whether the appellant's right to procedural fairness was breached due to the denial of cross-examination on a legal issue.

The court found that the magistrate did not err in law by not requiring the respondent to tender a certificate as to the accuracy of the speed measuring equipment, as the presumption under s 117(4) of the Act applied. The court held that the presumption was sufficient to establish the accuracy of the equipment without the need for additional evidence. Additionally, the court ruled that the appellant was not denied procedural fairness as the cross-examination on the issue of law did not relate to the facts of the case, but rather to the interpretation of the law. Therefore, the court upheld the conviction.

The court dismissed the appeal and affirmed the conviction. The court found no error in the magistrate's decision and upheld the presumption under s 117(4) of the Act. The court also held that the appellant was not denied procedural fairness and that the additional evidence was not admissible. The conviction for speeding was therefore affirmed.

Orders