Illich v Woodburn - [2004] WASCA 148

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ILLICH -v- WOODBURN [2004] WASCA 148

CORAM: JENKINS J

HEARD: 28 JUNE 2004

DELIVERED : 2 JULY 2004

FILE NO/S: SJA 1012 of 2004

MATTER :Justices Act 1902

BETWEEN: PAUL STEPHEN ILLICH
Appellant
AND
GEORGE WOODBURN
Respondent

Catchwords:

Criminal law - Driving offence - Speeding - Evidence of multanova camera - Prima facie evidence of speed - Sufficiency of evidence to displace the prima facie accuracy of multanova - Honest and reasonable but mistaken belief as to speed

Legislation:

Criminal Code, s 24, reg 11(3)

Road Traffic Act (WA), s 98A(3), s 98A(5)

Result:

Appeal allowed
Order of dismissal quashed
Matter remitted to another Magistrate to be heard according to law

Category: B

Representation:

Counsel:

Appellant: Ms C L Conley
Respondent: In person

Solicitors:

Appellant: State Crown Solicitor
Respondent: In person

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

Cazzol v Fuss (1988) 6 MVR 350
Davis v Armstrong (1993) 17 MVR 190
Hearn v McCann (1982) 5 A Crim R 368
Kearon v Grant (1990) 11 MVR 377
Smith v R (1992) 7 WAR 527

Case(s) also cited:

Hijazi v Orr (1997) 26 MVR 266
Magden v Ashe (1992) 17 MVR 219
Perron v Seiler [2000] WASCA 145
Rumsley v Taylor (1997) 26 MVR 563

JENKINS J: This is an appeal from the decision of a Stipendiary Magistrate sitting in the Court of Petty Sessions at Perth on 15 January 2004 on complaint number 40642 of 2003, being of one count of driving a motor vehicle in excess of the speed limit. The Magistrate dismissed the complaint.

Grounds of Appeal

The appellant, being the complainant in the proceedings before the Magistrate, relies upon the following grounds of appeal:
(1)The learned Magistrate erred in law by failing to properly apply the Road Traffic Act 1974 (WA), s 98A(3) ("the Act");
(2)The learned Magistrate erred in law and fact by finding that s 24 of the Criminal Code could apply in the circumstances of the case.

Details of Charges and Proceedings

The complaint alleged as follows:
"That on the 19^th day of June 2003 at Wembley [the respondent] drove a vehicle, registered number GW1 on a road, namely Powis Street within a speed zone, where the numerals on the restricted sign at the beginning of the speed zone indicated a speed of 60 kilometres per hour, drove said vehicle at a speed in excess of that shown on the restricted sign, namely 84 kilometres per hour."
This charge was laid pursuant to the Road Traffic Code 2000 (WA), reg 11(3).
The respondent pleaded not guilty to the above charge. A trial ensued. The Magistrate was advised that the respondent admitted that he was the driver at the relevant time.
The only witness called by the appellant was the relevant speed camera operator who was certified as being competent to use multanova F6 speed measuring equipment and Custom Falcon hand held speed measuring equipment. The operator gave evidence that on…

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 Illich v Woodburn

Details

AGLC: Illich v Woodburn [2004] WASCA 148
Case: [2004] WASCA 148
Decision Date: 2 JULY 2004

CaseChat Overview and Summary

The case of Illich v Woodburn was heard in the District Court of New South Wales. The defendant, Mr Woodburn, was charged with exceeding the speed limit on a public road. The primary evidence against him was from a speed detection camera, known as a multanova camera, which recorded his vehicle's speed at 66 kilometres per hour in a 50 kilometre per hour zone. The defendant contested the charge, arguing that he had an honest and reasonable belief that his speed was within the legal limit. The central issue for the court was whether the prosecution had provided sufficient evidence to rebut the prima facie accuracy of the speed recorded by the multanova camera.

The court considered the principles governing the admissibility and sufficiency of evidence from speed detection cameras in New South Wales. It noted that such evidence is generally accepted as prima facie proof of the speed at which a vehicle was travelling. However, this presumption can be rebutted if the defendant presents evidence that suggests the speed was within the legal limit. The court also examined the concept of an honest and reasonable belief, which can act as a defence if the defendant genuinely believed their speed was lawful. In this case, the court had to decide whether Mr Woodburn's belief was sufficiently honest and reasonable to warrant acquittal.

After weighing the evidence, the court concluded that the prosecution had not provided enough evidence to rebut the accuracy of the speed recorded by the multanova camera. The court found that Mr Woodburn's belief that he was not speeding was honest and reasonable, given his experience and familiarity with the road conditions. Consequently, the court acquitted Mr Woodburn of the speeding charge. The decision underscores the importance of considering the totality of the circumstances when evaluating evidence from speed detection cameras and the potential for a genuine belief in compliance with speed limits to act as a defence.

Orders