Golestani v Watson - [2019] WASC 387

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   GOLESTANI -v- WATSON [2019] WASC 387
CORAM:   HALL J
HEARD:   8 OCTOBER 2019
DELIVERED          :   29 OCTOBER 2019
FILE NO/S:   SJA 1037 of 2019
BETWEEN:   PAYAM GOLESTANI
Appellant
AND
GEOFF WATSON
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE BAYLY
File Number             :   PE 3948 of 2016

Catchwords:

Criminal law - Appeal against conviction - Traffic offence - Speeding - Whether verdict unreasonable - Whether correct vehicle stopped - Whether speed gun reliable

Legislation:

Road Traffic (Administration) Act 2008 (WA), s 117

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Ms A Seen

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

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

Beamish v The Queen [2005] WASCA 62
Davis v Armstrong (1993) 17 MVR 190
Hands v Baker [2009] WASC 46, (2009) 52 MVR 156
Maccione v Doughty [2019] WASC 375
Wells v The State of Western Australia [2017] WASCA 27

HALL J:

On 4 July 2015 the appellant, Payam Golestani, was stopped by police whilst driving on Canning Highway and issued with a speeding infringement. He denied speeding and elected to have the matter dealt with in the Magistrates Court. After many delays, and following a hearing in February 2019, Mr Golestani was found guilty of the charge. He was fined $400 and ordered to pay costs of $205.30. He seeks leave to appeal against his conviction.
The primary defence at trial was a claim by the appellant that the police had stopped the wrong car. The secondary defence was a claim by the appellant that the laser speed gun used by the police was inaccurate or unreliable. The learned magistrate did not accept either of these contentions and was satisfied beyond reasonable doubt that it was the appellant's car that had been speeding.
On the appeal the grounds essentially allege that the conviction was unreasonable or unsupported by the evidence. The appellant relies on the same matters that were raised as defences at the trial. The appellant submits that the evidence was incapable of establishing to the requisite standard that it was his car that was speeding and that the speed gun used was reliable.
In my view it was open to the magistrate to be satisfied of the appellant's guilt on the evidence at the trial. The verdict was not unreasonable or unsupported by the evidence. For the reasons that follow, leave to appeal is refused and the appeal is dismissed.

The prosecution case

The prosecution case was that at about 5.20 pm on Saturday 4 July 2015 two police officers were undertaking speed detection duties on Canning Highway. The officers were on foot and each was in possession of a laser speed gun. They were stationed close to the intersection of Canning Highway and Gloucester Street, which is to the west of the intersection of Shepperton Road and Canning Highway. The speed limit in this area is 60 km per hour. One of the officers observed a car approaching from the east which he believed to be speeding. The officer took a measurement with his speed gun of 84 km per hour. He then stepped out onto the road, directed the vehicle to stop and issued an infringement notice. The driver of the vehicle was the appellant.

The prosecution evidence

Senior Constable Hong Tong Wong was the officer who issued the infringement. He gave evidence that he had been a traffic police officer for about nine years and had been trained in the operation of speed detection devices. The speed device that he was using on the day in question was an LTI 20/20 TruSpeed. He produced a certificate of competency that showed he had been certified to use that device.[1]
[1] ts, Western Australia Police v Golestani; Magistrates Court, 1 February 2019, 10 - 11; Exhibit 1, Wong's certification.
Officer Wong said that at 5.20 pm on 4 July 2015 he was on duty with Senior Constable Mark McMillan. They were conducting stationary speed detections on Canning Highway and were located close to the Gloucester Street intersection. He said that Canning Highway at that point is a three lane carriageway and he was observing vehicles coming from the east and travelling towards him in a westerly direction.[2]
[2] ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 11.
Officer Wong saw a vehicle in the centre lane which appeared to be travelling within the speed limit. A few seconds later he saw a vehicle in the lane closest to the median strip that appeared to be travelling faster than the speed limit and which was catching up to the car in the centre lane. The LTI 20/20 TruSpeed laser speed measuring device that he had in his possession had the serial number TS005087. He trained that device on the vehicle and obtained a speed reading of 84 km an hour. He shouted out '84' and then heard Senior Constable McMillan say '81'. Senior Constable McMillan was using a second laser device.[3]
[3] ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 12.
Officer Wong ran onto the road and stopped the vehicle in the lane closest to the median strip. He noted the vehicle was a BMW convertible with a registration of 944 WRC. He directed the vehicle into Gloucester Street and then spoke to the driver, who he identified as the appellant. He showed the appellant the speed reading and asked if he had a reason for speeding. According to Officer Wong, the appellant said 'I was doing 60. I thought it was 50. I slowed down to 50'.[4]
[4] ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 12 - 13.
Officer Wong produced the Government Gazette containing a notice approving the LTI 20/20 TruSpeed device for purposes which include ascertaining the speed at which a vehicle is moving.[5] It is relevant to note at this point that s 117 of the Road Traffic (Administration) Act 2008 relevantly provides as follows:
(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.
[5] Exhibit 2, Government Gazette.
Section 117 also provides that a police officer is an authorised person and that speed measuring equipment means apparatus of a type approved by the minister in a notice published in the Government Gazette.[6]
[6] Road Traffic (Administration) Act 2008 (WA), s 117(1), (2).
Officer Wong was cross‑examined at length. He said that the reading of 84 km per hour was taken from a distance of 358.9 m. He did not take any other readings and did not believe there was any necessity to do so. He said that it took about four seconds from the time that he took the reading until the car stopped, when he directed it to do so. He said that before he started his shift he tested the equipment in accordance with the manufacturer's instructions. He agreed that this did not involve testing for accuracy and said that there was no way that he could do that. Rather he relied on the existence of a calibration report.[7] Such a report was produced and it showed the device had been calibrated in 2014 and the next date of calibration was due in September 2015.
[7] ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 19 - 20, 23 - 24.
It was put to Officer Wong that at the time he trained his laser on the speeding vehicle he was not able to identify that vehicle. He agreed that at that time he could not tell the model or colour of the vehicle but said that he continued to focus on it as he ran onto the road. It was put to him that after the laser reading was taken the appellant's vehicle and the other vehicle had swapped lanes.[8] In essence the proposition was that the appellant was the slower moving car that was first seen by Officer Wong. Officer Wong disagreed with this proposition and said that the car he stopped was the car that was at all times in lane three (the lane closest to the median strip). He said that his eyes never left the speeding car and that he did not mistake the appellant's car for the car that was speeding.[9]
[8] ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 49 - 50.
[9] ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 54.
Senior Constable McMillan gave evidence that he was on duty with Senior Constable Wong on 4 July 2015. He said that whilst conducting his duties he observed a vehicle in lane three which appeared to be travelling faster than other vehicles and was overtaking a vehicle in the central lane. Officer McMillan was in possession of a second TruSpeed laser device. He trained his device on the vehicle that appeared to be speeding and as he did so he heard Officer Wong yell out '84'. Officer McMillan obtained a reading from his device and almost immediately yelled out '81'. This meant that his device had produced a reading of 81 km an hour for the vehicle. He then saw Officer Wong run out onto the road to lane three where he directed a white BMW registration 944 WRC into Gloucester Street.[10]
[10] ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 58 - 59, 61 - 63.
Officer McMillan was also cross‑examined at length. He said that before commencing using his device, at the beginning of his shift, he had tested it in accordance with the manufacturer's instructions. This involved a fixed distance test and a scope alignment test. He did not keep a record of the distance of the vehicle at the time his reading was taken because the infringement was issued by Officer Wong and was based on the reading from Officer Wong's device.[11]
[11] ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 62 - 63.
It was put to Officer McMillan that at the distance when the laser readings were made an accurate identification of the vehicle was not possible. He disagreed and said that he could see that the car was a white sedan. He also maintained that the car that was stopped was the car in the third lane that had overtaken the car in the central lane. He denied that he had any interest in securing a conviction and denied that there had been any collusion between he and Officer Wong in regard to their evidence. He said he had not spoken to Officer Wong about the matter for several years prior to the trial.[12]
[12] ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 65, 83 - 84.
The final witness for the prosecution was Mr Tan Dung Ngo, a senior technical operations officer attached to the Traffic Technical Unit, Speed Technology for the WA Police. He gave evidence that the Traffic Technical Unit is an accredited laboratory of the National Association of Testing Authorities (NATA). He is a qualified radar and laser speed detection instrument technician. He has a Bachelor of Applied Science in Computer Technology and has been certified to test, maintain and service the LTI 20/20 TruSpeed device by the manufacturer. Mr Ngo reviewed the police records relating to the TruSpeed device serial number TS005087 and was able to confirm that he completed a calibration procedure for that unit on 3 September 2014. At that time the device was found to be operating correctly within the manufacturer's specifications. As a result of that he issued and signed a NATA endorsed calibration certificate valid for 12 months.[13]
[13] ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 85 - 87.
The next calibration for the unit occurred on 11 September 2015 and was undertaken by a different officer. The second calibration certificate was admitted as a business record pursuant to s 79C of the Evidence Act 1906 (WA). That certificate confirmed that the unit had been calibrated and found to be operating correctly as at 11 September 2015. Mr Ngo said that he understood that, although calibrations occurred every 12 months, each machine is tested by a police officer before and after use to confirm that it is working correctly.[14]
[14] Exhibit 9, Last Calibration Certificate, ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 90.
In cross-examination it was put to Mr Ngo that at a distance of 358.9 m the beam width divergence of the device was 'roughly 0.9 m'. The proposition was that at this distance the width of any divergence, together with any panning movement by the operator, could result in a measurement being taken from another nearby car without the operator being aware. Mr Ngo was unable to agree with these propositions. He did say that there was an 'error trapping algorithm' built into the machine to eliminate errors which may occur as a result of the device being handheld. He also said that if the device returned a reading it would be accurate and if it could not return a reading it would return an error message. He said that the device is accurate up to 1200 m. As to whether an operator could make a mistake as to which vehicle a reading was obtained from, Mr Ngo said the answer to that was to 'ask the operator'.[15]
[15] ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 94 - 96.

The defence evidence

The appellant gave evidence that on the afternoon of the day in question he was driving from Perth to his home in South Perth. He said that he drove over the Causeway and took the off‑ramp to Canning Highway. The off‑ramp is a single lane which then joins onto a lane coming from Great Eastern Highway. A little further a third lane from Shepperton Road joins the other two lanes. The lane he was in became the middle lane of the three on Canning Highway. He said that he saw a car come from behind him on the right side in the third lane (that is the lane coming from Great Eastern Highway). He said that this car overtook his car and then moved into the middle lane in front of him. He said that as he intended to make a right‑hand turn at Mill Point Road he decided to move from the middle lane to the third lane. He said he checked his speed at that point and believed it was somewhere between 50 and 55 km per hour. He said he maintained this speed as he was in 'absolutely no hurry'. About 15 to 20 seconds later he observed Officer Wong in the road signalling him to stop.[16]
[16] ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 103 - 105.
The appellant said that when Officer Wong alleged that he was speeding he immediately denied it. He said that he was aware of a speed sign that showed the speed limit as 60 km an hour and that he was 'doing nowhere near that'. He said that he asked Officer Wong to show him the speed gun but that Officer Wong directed him to go and speak to Officer McMillan. He said that he asked Officer McMillan how it had been determined that he was the one speeding amongst other cars and that Officer McMillan had replied that 'it was you and another car'. He said that he asked Officer McMillan to show him what speed he was doing and Officer McMillan declined. He said that he was 100 per cent certain that he was not speeding. He said that it was a very nice day and he wanted it to last as long as possible. He referred to his belief that it was shortly before the Easter break and that he was intending to go on a holiday with his family.[17]
[17] ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 102, 105 - 106.

The magistrate's decision

At the conclusion of the hearing on 1 February 2019, the magistrate reserved his decision. The decision was delivered on 8 February 2019. The magistrate gave a detailed summary of the evidence and it is unnecessary to repeat that summary. His Honour then said:[18]
The accused did put forward, as one of his defences, the equipment used was inaccurate. He cross-examined, extensively, Senior Constable Wong, Senior Constable McMillan and Mr Ngo. None of these witnesses agreed with his assertions. In my view, in this case, the accused has not led any evidence to displace the accuracy of the LTI 20/20 TruSpeed. The accused further puts forward as his defence that he was not speeding and that Senior Constable Wong must have lasered another vehicle, not his.
Senior Constable Wong and Senior Constable McMillan are both experienced traffic enforcement officers that are both qualified to operate the LTI 20/20 TruSpeed. They both said they had a clear vision of the accused's vehicle in lane 3, and Wong said that he recorded the accused's speed at 84 kilometres per hour and yelled that to McMillan, and McMillan then used his own device which recorded the accused's speed shortly afterwards at 81 kilometres per hour.
They both said the accused was then pulled over, and that was the vehicle which they had lasered. They both denied they could have pulled over the wrong vehicle or that the recorded speed of a vehicle - or that they recorded the speed of a vehicle other than the accused. It's fair to say that the accused was driving a very distinctive car, in addition to which Constable Wong said that he showed the accused the recorded speed on the LTI 20/20.
The accused denied hew [sic] as [sic] shown the speed; however, it was never put to Wong in these - in the proceedings before me in cross‑examination that he did not show him the recorded speed. On the accused's evidence, Wong at no stage told the accused that he was - the speed that he was allegedly going. That, in my view, is highly improbable. I accept that Senior Constable Wong did show him the recorded speed and that the accused said, 'I was doing 60, and I thought it was 50, so I slowed down to 50'.
That statement was also not disputed by the accused in cross‑examination in his cross-examining Wong. The accused, for his part, gave evidence that it was Easter and that he was in no hurry. In 2015, Easter was in April, not in July. The accused said he was travelling at 50 to 55 kilometres per hour. I accept the evidence of Senior Constable Wong about which he was not challenged that when stopped, the accused said he was doing 60 kilometres per hour, and that he reduced his speed to 50.
What I find he said to Wong is inconsistent, in my view, with his testimony and, indeed, it was his – as was his statement that he was in no hurry, as it was Easter. Clearly, it was not. He was, in my view, an unreliable witness. The accused said he swapped lanes between when the laser was activated at 358 metres and when he was stopped. If, indeed, that had occurred, the two police officers, in my view, both experienced, would have clearly observed it as the accused drove towards them.
They did not. I accept the evidence of the police officers that the accused's vehicle was in lane 3 when Senior Constable Wong obtained the speed reading of 84 kilometres per hour and was still in lane 3 when Senior Constable McMillan observed a speed reading shortly afterwards at 81 kilometres per hour. I, therefore, don't accept the accused's evidence. This is the case - it is the case the police officers got two different readings, one of 84 kilometres per hour and the other at 81.
That difference is readily explainable, as, on the evidence, McMillan got his reading shortly after Wong got his reading. I accept beyond reasonable doubt that Senior Constable Wong got a speed reading of the accused's vehicle, and the speed was 84 kilometres per hour. I'm satisfied the prosecution have proved its case to the required standard of beyond reasonable doubt and the accused will be convicted.
[18] ts, Western Australia Police v Golestani, Magistrates Court, 8 February 2019, 9 - 10.

Grounds of appeal

The grounds of appeal, as contained in an amended appeal notice filed on 10 September 2019, are as follows:
1.The appellant pleaded not guilty to the above offence.
2.The learned magistrate erred in fact and law to conclude there was a prima facie case and thereby there was a miscarriage of justice.
3.The learned magistrate erred in fact and law to conclude the prosecution did discharge the requisite burden of proof beyond reasonable doubt as such findings [sic] was not available on facts and evidence was incapable of establishing proof beyond reasonable doubt thereby there was a miscarriage of justice.
4.Magistrate did not bring an impartial mind in resolution of the charge thereby causing a miscarriage of justice.
5.The conviction in the circumstances is so unreasonable that no reasonable tribunal would make such findings and there would be a miscarriage of justice for the appellant to be convicted in the circumstances.
6.The conviction is unsafe and unsatisfactory.
7.The appellant seeks leave to amend the grounds of appeal to better articulate the grounds in accordance with the law.
Grounds 1 and 7 are not grounds at all, as the appellant conceded at the hearing. He also abandoned ground 4 at the hearing.[19] In essence the other grounds assert that the evidence was insufficient to prove the charge beyond reasonable doubt. I have taken this to be a claim that the verdict was unreasonable or unsupported by the evidence.
[19] ts 4.
The principles in relation to a ground of appeal asserting that a verdict is unreasonable were summarised by the Court of Appeal in Wells v The State of Western Australia.[20] Relevantly, the question on this appeal is whether the magistrate must, as distinct from might, have entertained a reasonable doubt about the accused's guilt. In conducting this assessment it is necessary to be aware of the advantage that the magistrate had, in that he saw and heard the witnesses giving their evidence.
[20] Wells v The State of Western Australia [2017] WASCA 27 [13].
The appellant asserts that reasonable doubt as to whether his car was the car that was speeding and as to whether the speed gun was reliable could not be excluded on the available evidence. I will deal with each of those contentions in turn.

Did the police stop the wrong car?

Officer Wong gave clear and unequivocal evidence that the vehicle from which he took the reading of 84 km an hour was the same vehicle that he stopped and pulled over. When it was put to him in cross‑examination that the appellant's vehicle and another vehicle had swapped lanes, Officer Wong stated that he had maintained continuous eye contact with the speeding vehicle and was sure that it was the one that he stopped. The vehicle that was stopped was the BMW convertible driven by the appellant.[21]
[21] ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 54, 56.
The appellant refers to aspects of Officer Wong's evidence that he suggests reflect on that witness' credibility. These include that Officer Wong described the vehicle as being silver when in fact it was white and that he referred to the slower vehicle arriving where he was standing before the vehicle that he pulled over. As regards the second matter, the appellant says that if the vehicle in the third lane was speeding it should have arrived at Officer Wong first. The appellant also notes that Officer Wong conceded that at the point he took the reading it was not possible to see clearly the make, colour or type of vehicle.[22]
[22] ts 7 - 9.
As to the colour of the vehicle, Officer Wong conceded he could be in error in that regard. That does not detract from his evidence that he maintained eye contact with the vehicle from which he took the measurement. As to how the slower car could have arrived first, whilst Officer Wong could provide no explanation, there are obvious flaws in the appellant's contention. His argument assumes that after the speed reading was taken both cars continued to drive at the same relative speeds. There is no foundation for that assumption. As to the inability of Officer Wong to see at a distance details of the car from which he took a measurement, again this does not detract from his evidence that he maintained eye contact with that vehicle from the time he took the measurement until the time he stopped it.
Officer Wong's evidence was also supported by the evidence of Officer McMillan. That evidence was important in two respects. First Officer McMillan gave evidence that he independently took a reading from the speeding vehicle. Secondly, he said that that vehicle did not change lanes and was the vehicle that was stopped by Officer Wong.[23]
[23] ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 59, 75.
The appellant gave evidence that contradicted that of Officers Wong and McMillan. In particular he said that he was travelling at all times at or below the speed limit and that he changed lanes prior to being stopped.[24] Faced with this contradictory evidence the magistrate considered the credibility of the witnesses. He came to the conclusion that the police officers were experienced traffic policemen who had given credible evidence. In contrast he did not accept that the appellant was a credible witness. He gave a number of reasons for this.[25]
[24] ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 104 - 105.
[25] ts, Western Australia Police v Golestani, Magistrates Court, 8 February 2019, 9 - 10.
The appellant complains that the magistrate placed too much emphasis on the fact that he referred in error to the Easter break (it was, he says, in fact a different holiday break that he meant to refer to).[26] However even if, as claimed, this was an honest mistake on the part of the appellant it was not the only, or indeed the most important, matter that bore on the magistrate's decision in regards to credibility. His Honour also referred to inconsistencies between the appellant's evidence and that of the prosecution witnesses regarding whether he was shown the device reading and as to what he said when stopped.[27]
[26] ts 10.
[27] ts, Western Australia Police v Golestani, Magistrates Court, 8 February 2019, 10.
The magistrate had the benefit of seeing the witnesses and there is nothing to suggest that he misused that advantage. It was plainly open to him to reach a conclusion that the evidence of the police officers was to be preferred and to be satisfied to the requisite standard that Officer Wong had stopped the speeding vehicle.

Was the speed gun reliable?

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,[28] Hands v Baker[29] and Maccione v Doughty.[30]
[28] Davis v Armstrong(1993) 17 MVR 190, 192 (Murray J).
[29] Hands v Baker [2009] WASC 46, (2009) 52 MVR 156 [6] (Blaxell J).
[30] Maccione v Doughty [2019] WASC 375.
The appellant sought to rebut the presumption by challenging the accuracy of the device. He contended that tests conducted by Officer Wong on 4 July 2015 did not show that the device was accurate. However the evidence was that the device had been calibrated in September 2014 and again in September 2015.[31] On both occasions the device was found to be operating accurately. The evidence was that users do not conduct calibration tests rather, and in accordance with the manufacturer's instructions, they test that the device is accurate for distance and that the scope is operating correctly. These operator tests were undertaken.[32]
[31] Exhibit 8: Calibration Certificate and exhibit 9: Certificate.
[32] ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 61.
The appellant also sought to rely on what was described as 'beam width divergence'. He contended that at greater distances the width of the beam, together with any panning movement by the operator, raised the possibility that the speed measured was that of a different vehicle than that intended to be measured by the operator. These contentions were not supported by evidence. Insofar as the propositions were said to be based on the manufacturer's manual, that manual was not tendered at the hearing in the Magistrates Court and no application was made for it to be adduced as fresh evidence on the appeal.[33] Furthermore, Mr Ngo did not agree with propositions in this regard that were put to him.[34]
[33] The appellant elodged some documents dated 7 and 8 October 2019, however those were not taken into account given that no application in that regard was made.
[34] ts, Western Australia Police v Golestani, Magistrates Court, 1 February 2019, 95.
In written submissions the appellant suggested that the 2015 calibration certificate should not have been admitted in evidence pursuant to s 79C of the Evidence Act. He submitted that this was a document that was prepared for the purposes of an investigation or prosecution and therefore fell within the exception in s 79C(4).[35] I do not accept this contention. There is nothing on the face of the 2015 certificate that suggests that it was brought into existence for the purpose of these proceedings. Indeed any such suggestion is inconsistent with the existence of the 2014 certificate which was clearly created (and is dated) prior to the commencement of any proceedings against the appellant.[36] The form and content of the certificates indicate that they are records created in the normal course of business by the police and in order to ensure that there is a proper record of the maintenance and testing of this equipment.
[35] Appellant's submissions filed 10 September 2019, 3; see Beamish v The Queen [2005] WASCA 62.
[36] Exhibit 8: Certificate.
It was open to the magistrate to conclude that nothing raised by the appellant had given reason to doubt the accuracy of the TruSpeed device that was used by Officer Wong.

Conclusion

As noted earlier, the question is whether it was open to the magistrate to be satisfied beyond reasonable doubt that the charge was proven on the evidence that was before him. In my view that conclusion was plainly open. The grounds of appeal are without merit. Accordingly the orders of the court are:
1.Leave to appeal on all grounds is refused.
2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AL
Associate to the Honourable Justice Hall

28 OCTOBER 2019