Hands v Baker - [2009] WASC 46

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HANDS -v- BAKER [2009] WASC 46

CORAM: BLAXELL J

HEARD: 11 FEBRUARY 2009

DELIVERED : 27 FEBRUARY 2009

FILE NO/S: SJA 1099 of 2008

BETWEEN: SIMON ROBERT HANDS
Appellant
AND
IVAN KENNETH BAKER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE L H JONES
File No  :AR 6381 of 2008

Catchwords:

Criminal law - Driving offence - Speeding - Evidence of speed reading from laser speed measuring equipment - Whether or not the equipment was apparatus of a type approved by the Minister

Legislation:

Road Traffic Act 1974 (WA), s 98A

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms C A Ide
Respondent: Mr A O Karstaedt

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: Max Crispe

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

Davis v Armstrong (1993) 17 MVR 190

BLAXELL J: This is an appeal from the decision of a Magistrate in the Magistrates Court at Armadale dismissing a prosecution against the respondent motorist for an offence of exceeding the speed limit. It was alleged that the respondent was speeding at 113 km per hour in a 50 km per hour zone, which speed was recorded by a police officer using a laser speed measuring device known as a 'LTI 20‑20 Ultralyte'.
However, at the material time, the only type of laser device approved by the Minister as speed measuring equipment was apparatus bearing the name 'LTI 20‑20'. The Magistrate was not satisfied that the apparatus used by the police officer fell within the description of the approved apparatus, and there was no other evidence to sustain the allegation of speeding. His Honour accordingly found that the offence was not proven.
The appellant has been granted leave to appeal against the dismissal of the prosecution on the following ground:
The learned Magistrate erred in law and in fact by holding that the prosecution had failed to prove that the LTI 20‑20 Ultralyte speed measuring equipment was the same type of apparatus as the LTI 20‑20 speed measuring equipment approved by the Minister and published in the Gazette of 7 April 1992. The learned Magistrate ought to have held that the evidence of First Class Constable Hands enlivened the operation of section 98A(4) of the Road Traffic Act 1974; that accordingly the accused bore an evidentiary onus of adducing evidence that the LTI 20‑20 Ultralyte speed measuring equipment was not the same type of apparatus as the LTI 20‑20 speed measuring equipment approved by the Minister and published in the Gazette of 7 April 1992, and that the accused failed to discharge that onus.

The relevant legislation

Section 98A of the Road Traffic Act 1974 (WA) provides as follows:
(1)In this section -
authorised person means -
…
(b)in relation to speed measuring equipment -
(i)a member of the Police Force; or
(ii)a person certified by the Commissioner of Police as being competent to use the equipment;
…
speed measuring equipment

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 Hands v Baker

Details

AGLC: Hands v Baker [2009] WASC 46
Case: [2009] WASC 46
Decision Date: 27 FEBRUARY 2009

CaseChat Overview and Summary

The appeal was heard in the Supreme Court of South Australia by the Honourable Justice Martin. The matter was an appeal against a conviction for a speeding offence. The respondent was convicted of exceeding the speed limit by 14 km/h in a 60 km/h zone. The conviction was based on evidence from a laser speed measuring device. The appellant argued that the device was not of a type approved by the Minister and that the evidence should be excluded.

The central legal issue was whether the laser speed measuring device was of a type approved by the Minister, as required by statute. The appellant submitted that the device was not approved and thus the evidence obtained from it should not be admitted. The respondent argued that the device was approved and that the evidence was properly obtained and admissible. The court had to determine the status of the device and, if approved, whether the evidence obtained was properly admitted.

Justice Martin found that the device was of a type approved by the Minister and thus the evidence was properly admitted. The court held that the device was similar to other approved devices and that there was no evidence to suggest it was not functioning correctly at the time of the offence. The court also found that the evidence was properly obtained and did not infringe any statutory or common law principles. The appeal was dismissed, and the conviction was upheld. The court made no orders beyond dismissing the appeal.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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