Ireland v Jackson
[2021] WASC 362
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: IRELAND -v- JACKSON [2021] WASC 362
CORAM: ALLANSON J
HEARD: 15 MARCH 2021
DELIVERED : 27 OCTOBER 2021
FILE NO/S: SJA 1052 of 2020
BETWEEN: MARK GRAEME IRELAND
Appellant
AND
ALISON JACKSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: DEPUTY CHIEF MAGISTRATE E WOODS
File Number : PE 35086 of 2019
Catchwords:
Criminal law - Appeal against conviction - Traffic offence - Speeding - Where prosecution relied on image from speed measuring and recording equipment - Whether proved that image produced from data retrieved from that equipment
Criminal law - Appeal against conviction - Where appellant did not formally plead not guilty but unequivocally indicated he wished to proceed to trial - Whether substantial miscarriage
Criminal law - Appeal against conviction - Where appellant claimed obligation on prosecution to disclose manual for speed measuring and recording equipment - Whether obligation to disclose
Criminal law - Appeal against conviction - Where prosecution did not produce proclamation certificate for subsidiary legislation - Whether subsidiary legislation required to be proved - Whether prosecution could rely on Evidence Act 1995 (Cth) or Reprints Act 1984 (WA)
Legislation:
Road Traffic (Administration) Act 2008 (WA)
Result:
Leave to appeal granted on grounds 2, 3, 5 and 8
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | Mr D E Leigh |
Solicitors:
| Appellant | : | Not Applicable |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision:
Bond v Hodgson [2014] WASCA 200
Fisher v O'Hehir [2020] WASC 353
Ireland v Watson [2018] WASCA 57
Ireland v Jackson [2020] WASC 2
Ireland v Watson [2020] WASC 1
Montalbano v Morris [2019] WASC 309
Waite v Hennah [2021] WASCA 69
ALLANSON J:
Introduction
The appellant, Mark Graeme Ireland, was convicted on 25 June 2020 on a charge of exceeding the speed limit. He was fined and ordered to pay court costs.
On 21 July 2020, Mr Ireland filed a notice of appeal containing seven 'draft grounds of appeal'. On 1 September 2020, he filed a document titled 'Final Draft Grounds of Appeal', now with 10 grounds. Ground 1 does not allege error, and grounds 4 and 10 were abandoned, taking the number back to seven. The remaining grounds disclose a degree of overlap.
The remaining grounds are not clearly expressed. Mr Ireland has some experience in representing himself in appeals in this court. But he has no legal training and, as for other persons who appear for themselves, the court must exercise care to ensure that he is not denied a case because of poorly expressed grounds or submissions.
The respondent, in written submissions, attempted to distil the substance of the grounds and the submissions filed by Mr Ireland into nine grounds (including at least one which was abandoned), but I am not sure that Mr Ireland was pressing all of those points. The grounds that were pressed, as I understood them, alleged:
(1)There was a miscarriage of justice because Mr Ireland did not enter a formal plea of not guilty: ground 9.
(2)The magistrate erred in law by not requiring the prosecution to disclose a copy of the PoliScan[1] manual, or there was a miscarriage of justice because Mr Ireland was unable to challenge the prosecution evidence as to his speed without having a copy of the manual: ground 6.
(3)The magistrate erred in not allowing Mr Ireland an adjournment to enable him to obtain a copy of the PoliScan manual: ground 6.
(4)The magistrate erred in law, and there was a miscarriage of justice, in that the prosecution failed to prove a proclamation certificate for the Road Traffic Code, the written law under which the charge had been brought, when it is necessary for subsidiary legislation to be proved by evidence: ground 7.
(5)The magistrate erred in fact and in law in not permitting Mr Ireland to put questions to the prosecution witness by which he sought to raise doubt about the accuracy of the PoliScan by establishing that it had not been properly tested, or that the circumstances were such that it might not have operated accurately with respect to his vehicle: ground 3.
(6)The magistrate erred in fact and law in allowing into evidence documents that did not show that Mr Ireland was speeding and s 117 of the Road Traffic (Administration) Act 2008 (WA) was not complied with: ground 5.
(7)The magistrate erred in fact and in law when she did not distinguish between 'speed measuring equipment, and 'speed measuring and recording equipment', and refused when Mr Ireland asked for a calibration certificate: ground 2, ground 8.
[1] The speed measuring and recording equipment on which the prosecution relied in the trial.
Grounds 2, 3, 5 and 8 are all directed to the proof of the speed of Mr Ireland's vehicle by the evidence of photographs from an apparatus identified as a Vitronic PoliScan M1/HP (PoliScan). Together, they question whether the prosecution had proved that the equipment operated accurately with respect to Mr Ireland's vehicle, and whether the requirement for proof pursuant to s 117 of the Road Traffic (Administration) Act by evidence of an image from speed measuring and recording equipment had been met.
Mr Ireland also addressed both written and oral submissions (unrelated to any ground of appeal) directed to the operation of pt 4 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA). In particular, he argued that the magistrates court lacked jurisdiction until the order of the registrar under s 43 of that Act had been set aside. To the extent I could follow his submission, and despite his denials, it appeared to be an attempt to rehearse the arguments which failed before the Court of Appeal in Ireland v Watson.[2]
[2] Ireland v Watson [2018] WASCA 57.
Those arguments are unrelated to any ground before me and I need not consider them further.
In the following reasons, references to legislation, unless stated otherwise, are to the Road Traffic (Administration) Act.
Procedural history
Matters before trial
Mr Ireland was charged on a prosecution notice dated 25 July 2019, referring to an offence on 30 January 2019.
He first appeared before two Justices of the Peace on 24 October 2019. He did not enter a plea but had the matter adjourned pending the resolution of two appeals in this court. Mr Ireland first appeared before a magistrate on 12 December 2019, where the matter was adjourned to February 2020. On 27 February 2020, the magistrate listed the matter for hearing on 25 June 2020, noting that Mr Ireland objected to the prosecution notice and there would be a hearing of preliminary issues and ultimately a trial of the substantive issues.
It appears that Mr Ireland believes an order was made for disclosure of the PoliScan operating manual on 27 February 2020 but the transcript does not show that any order was made. The Criminal Procedure Act 2004 (WA) does not require disclosure for the offence Mr Ireland was charged with, and it has been previously held in this court that the operating manual is not evidentiary material relevant to the charge which needs to be disclosed.[3]
[3] Ireland v Watson [2020] WASC 2 [40] - [50].
Mr Ireland appeared before a magistrate on 25 June 2020. He raised some preliminary matters that were dealt with before trial. Mr Ireland said that he challenged the prosecution notice. He also said he wanted to raise issues of disclosure, and said that he had not been provided with a 'calibration certificate' for speed measuring and recording equipment.
It is not entirely clear what Mr Ireland was referring to as a 'calibration certificate'. In any event, her Honour said:
It's for me to be satisfied whether they have sufficient evidence beyond reasonable doubt to make a conviction. Whether they've got a calibration certificate or not I don't know at this point. I haven't asked that question. We haven't had the trial.
So either they produce the evidence, or they don't, and if they don't and you think they need it, you can make that point, and I come to a decision one way or another. [4]
[4] ts 7.
Mr Ireland said, 'I'm willing to go ahead with the trial whenever you're ready for it'.[5]
The trial
[5] ts 7.
The prosecution called one witness, Loris Giumelli, who said in evidence that:
(1)he worked for the police department as a 'camera operator';
(2)on 30 January 2019, he was operating a speed camera on East Parade, East Perth;
(3)before starting his shift, he tested the camera unit at the range in Midland and it tested correctly;
(4)when satisfied that everything was operating correctly he started enforcement and the camera 'captured a vehicle [Mr Ireland's vehicle] doing 68 km/h';[6]
(5)at the conclusion of his shift he again tested the camera unit and it tested correctly.
[6] ts 9.
The prosecution produced a certificate under s 117 of the Act that Mr Giumelli was, on and from 4 July 2011, 'competent to use' the Vitronic Poliscan Speed M1 and Vitronic Poliscan Speed M1HP.[7] Mr Giumelli's authorisation was dated 2011, and preceded the amendments to the Road Traffic (Administration) Act in 2016, which introduced provisions in relation to 'speed measuring and recording equipment'.[8] Certification that he was competent 'to use' the relevant equipment was in accordance with the definition of 'authorised person' at that time.
[7] Exhibit A.
[8] Road Traffic Legislation Amendment Act 2016 (WA), s 66.
The evidence regarding the equipment used is unsatisfactory. Whether apparatus is speed measuring equipment or speed measuring and recording equipment depends on whether it has been approved by the Minister under s 117(2)(a) as 'speed measuring equipment', or under s 117(2)(c) as 'speed measuring and recording equipment'.[9] The transcript records the tender and receipt as Exhibit B of an extract from the Government Gazette relating to the Vitronic Poliscan Speed M1 - referred to in transcript as 'speed measuring equipment'.[10] The exhibits provided to this court by the magistrates court, pursuant to s 10(7) of the Criminal Appeals Act 2004 (WA), do not include an extract from the Government Gazette. The exhibit list provided by the Magistrates Court records Exhibit B as a 'delegation extract'; and the document stamped as Exhibit B is a delegation pursuant to s 9 of the Road Traffic (Administration) Act.
[9] Section 117(1); Waite v Hennah [2021] WASCA 69 [51].
[10] ts 10.
Both parties, however, approached the appeal on the basis that the Poliscan is 'speed measuring and recording equipment'.
Mr Giumelli said that he tested the unit at a range in Midland and it tested correctly. He said he then took it to East Parade in East Perth:
I measured the lanes and took a few test photos, and when I was happy that everything was operating correctly, I started enforcement, and it captured a vehicle [registration number] doing 68 kilometres per hour.
…
Okay. And how did it capture that? --- By the vehicle speeding up into the cameras detection area, and the camera determined that the vehicle was over 68 - was doing 68 kilometres an hour and captured the speed, and it put a template on the photo (indistinct) picture (indistinct) shows the template on the vehicle, and there is the close-up of the numberplate and a close-up of the face.[11]
[11] ts 9.
At the conclusion of the day, Mr Giumelli took the PoliScan back to Midland and tested it again and it tested correctly.[12]
[12] ts 9.
In the course of his evidence, Mr Giumelli was asked by Mr Ireland whether he had a calibration certificate. Mr Giumelli referred to the equipment being calibrated yearly, but did not say that there was a certificate issued. He said 'an independent provider tests it, and calibrates it, and affixes their stamp to it, and puts the calibration date into the unit, and if the unit reaches the calibration date, it will just stop working'.[13] There was no evidence that a calibration certificate was issued, which (assuming there was an obligation of disclosure) could be disclosed.
[13] ts 15.
Following a discussion between Mr Ireland and the magistrate about calibration certificates, and the onus of proof, Mr Ireland referred to the photographs that had been produced in evidence and asked the witness who had downloaded them from the camera. Mr Giumelli said:
I got them sent to me, and - yes, I've got the disk, and I've downloaded them and printed them out.[14]
[14] ts 17.
Mr Giumelli was asked if the photographs were accurate and said, 'the manufacturer certifies that they're from the camera unit'.[15] No other evidence was given regarding how the photographs were recorded or retrieved from the unit, or how the images displaying the vehicle, the time, and speed, were produced.
[15] ts 17.
Mr Ireland gave no evidence about his driving, or the speed he was travelling.
At the conclusion of the evidence, the prosecutor addressed the court very briefly. The magistrate then asked Mr Ireland if he was prepared to give his summary then, or would he like some time to get it together. Mr Ireland submitted that the speeding charge must be set aside because a proclamation certificate for the Road Traffic Code had not been proved. Her Honour refused to set the charge aside. Mr Ireland said that was all he had to say.[16]
[16] ts 19.
In her reasons for decision, the magistrate said:
In relation to this charge, there was one witness called by the prosecution, Mr Giumelli, who was the camera operator. Mr Giumelli provided the relevant certification as to his authorisation and his competency to operate the relevant speed measuring device.
He was measuring the speed of vehicles along East Parade using a device which has been included in the Government Gazette. An extract of the Government Gazette was tendered to the court, and the speed measuring device that Mr Giumelli was operating on this day is included in that list.
…
The camera of the machine that he was using took photographs at the scene. Those photographs included a motor vehicle [registered to the appellant] doing more than the speed in the area, and there is an enlarged photograph of the vehicle positioned in the lane, and the registration plate showing, and an image of the driver also included in the photographs, which were taken from the disk of the relevant camera.
…
As I say, the camera had been set up. It had taken the photograph of the vehicle, which we have in evidence, and when he returned to the depot, he tested the equipment to make sure there had been no change, and there had been no change to the outcome of that testing … and whilst [Mr Ireland] did ask some questions about how this test was done and the calibration of the equipment, the actual carrying out of the testing at the range was not challenged by him.
In relation to the photos and the evidence given by Mr Giumelli, he indicated that the photograph was taken of the relevant motor vehicle. It was doing a speed, as I say, in excess of the 60 kilometres.[17]
[17] ts 20 - 21.
Her Honour found that Mr Giumelli was truthful, and had completed the necessary paperwork, was an authorised person, and had tested the equipment in an appropriate way.
Consideration
The Road Traffic (Administration) Act, in pt 6 div 2, contains evidentiary provisions that apply in proceedings, including in prosecutions under the Road Traffic Code 2000. Proof of speed in the way it was done in this trial has been a recurring issue in appeals in this court.
The Act was passed in 2008. Part 6, div 2 contained evidentiary provisions, including provisions regarding the use of measuring equipment.
In its original form, s 117 provided for evidence to be given by the use of speed measuring equipment and distance measuring equipment. In each case the evidence could be given by an authorised person, defined as a police officer or a person certified by the Commissioner of Police as being competent to use the equipment.
Section 117(2), as amended, provides for the Minister to approve apparatus for purposes of ascertaining the speed at which a vehicle is moving (speed measuring equipment); ascertaining distances on roads (distance measuring equipment); or ascertaining the speed at which a vehicle is moving, and recording an image of the vehicle and information including the speed, and the date, time and location at which the image was recorded (speed measuring and recording equipment).
Speed measuring and recording equipment is defined by reference to s 117(2)(c) as apparatus approved by the Minister for the purposes of:
(c)ascertaining the speed at which a vehicle is moving, recording an image of the vehicle and recording -
(i) the speed at which the vehicle was moving; and
(ii) the date on which the image was recorded; and
(iii)the time and location at which the image was recorded; and
(iv) the speed limit applicable at that location at that time.
Consistently with that definition, the definition of authorised person was amended in 2016 to recognise the discrete functions involved in measuring and recording speed by such equipment:
(c)in relation to speed measuring and recording equipment, means -
(i) a police officer; or
(ii)a person certified by the Commissioner of Police as being competent to install, set up, test or retrieve data from, the equipment or produce images from the data.
Further amendments were made by the deletion of s 117(6)[18], with the following substituted:
[18] Section 117(6), as originally enacted, provided:
In a prosecution mentioned in subsection (4), evidence by an authorised person that apparatus used by the person was speed measuring equipment is prima facie evidence of that fact.
(6)In a prosecution for an offence under a written law evidence may be given of -
(a)the use of speed measuring and recording equipment at a particular location; and
(b)the identity of a vehicle as recorded by that equipment at a particular time; and
(c)the speed at which a vehicle was moving as ascertained and recorded by that equipment at that time.
(7A)The evidence referred to in subsection (6) is prima facie evidence of the identity of the vehicle and the speed at which it was moving at that time and location.[19]
(7B)In a prosecution mentioned in subsection (6), evidence of the matters referred to in that subsection may be given in the form of an image of the vehicle on which is recorded the matters referred to in subsection (2)(c), as ascertained and recorded by the speed measuring and recording equipment at the time and location referred to in subsection (6).
[19] The effect of making the evidence prima facie evidence of a fact is that, '[while] in the absence of any other evidence the relevant provision operates to render evidence within its ambit sufficient to discharge the prosecution's onus of proof, wherever there is any other relevant evidence (whether adduced by the prosecution or the defence) it is for the prosecution to prove each element of the offence beyond reasonable doubt': see Waite v Hennah [4].
Subsection (7) was amended to read:
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.
Section 117(8) was deleted and the following was inserted:
(8)In a prosecution mentioned in subsection (4), (5) or (6), a certificate purporting to be signed by the Commissioner of Police certifying that a specified person is, or was at the material time, a person certified by the Commissioner as being competent to -
(a)use distance measuring equipment; or
(b)use speed measuring equipment; or
(c)install, set up, test or retrieve data from, speed measuring and recording equipment or produce images from the data,
is prima facie evidence of the matters in the certificate, without proof of the signature of the person purporting to have signed it or proof that the purported signatory was the Commissioner.
By s 117(9):
Nothing in this section is to be construed as precluding or restricting the introduction of any competent evidence, whether in addition to, or independent of, any evidence for which provision is made by this section, bearing on the question of whether a person was or was not guilty of an offence under a written law.
The 2016 amending Act inserted a new s 117A:
(1)If, in a prosecution mentioned in section 117(6), evidence is given in the form of an image as described in section 117(7B) and the image is accompanied by a certificate under subsection (2), the image -
(a)is to be accepted as having been recorded as described in section 117(7B), unless there is evidence to the contrary; and
(b)is prima facie evidence of the matters shown in or recorded on the image.
(2)For the purposes of subsection (1), the certificate is a certificate purporting to be signed by the Commissioner of Police, certifying that -
(a)the equipment, specified in the certificate, was speed measuring and recording equipment; and
(b)the equipment was installed or set up by an authorised person, named in the certificate, in accordance with the approved procedure on a day specified in the certificate; and
(c)the equipment was tested by an authorised person, named in the certificate, in accordance with the approved procedure on a day, specified in the certificate, that was within the prescribed number of days (for that type of equipment) before the day on which the alleged offence was committed; and
(d)on the specified day referred to in paragraph (c) and on the day on which the alleged offence was committed, the equipment was accurate and operating properly; and
(e)data relating to the vehicle and its speed, and the time and place at which its speed was ascertained and the data recorded, was retrieved from the equipment by an authorised person, named in the certificate, in accordance with the approved procedure; and
(f)the data referred to in paragraph (e) was used to produce the image by an authorised person, named in the certificate, in accordance with the approved procedure.
(3)The certificate is prima facie evidence of the matters in it.
Section 117A(4) to (7) require the prosecution to serve a notice of a certificate under subsection (2), and provide for how an accused may challenge or call into question a matter certified.
The effect of s 117A is that prima facie evidence may be adduced by certificate, without calling an authorised person to testify to those matters which are evidenced by the certificate. But s 117A does not limit the prosecution to proof by a certificate under that section. It is an alternative way of proceeding. It remains open for the prosecution to adduce evidence, in accordance with s 117(6).
Section 117(7B) provides for evidence of the matters referred to in s 117(6) to be given in the form of an image on which the matters referred to in s 117(2)(c), as ascertained and recorded by the speed measuring and recording equipment at the specified location and time, are recorded.
Section 117A(2) sets out the matters that would normally need to be proved if an image is relied on: that the equipment was set up and tested, that it was accurate and operating properly, and the data was recorded and retrieved from the equipment and used to produce the image relied on.
I should refer briefly to the argument advanced by the respondent that s 117A provides for an image, for which there is a certificate, to have additional evidentiary effect. The respondent submitted, 'Without the certificate, the image is only prima facie evidence of the matters in s 117(7A), being the vehicle's identity and speed. With the certificate, the image is evidence of everything it shows or is recorded on it'.[20]
[20] Respondent's written submissions [21].
The submission unduly restricts the terms of s 117(7A), which is not limited to the vehicle's identity and speed - it expressly refers to the speed 'at which it was moving at that time and location'.
It would also be only a partial explanation for the inclusion of s 117A. Where a certificate accompanies the image, unless there is evidence to the contrary, the image 'is to be accepted as having been recorded as described in s 117(7B)'. Without a certificate, the prosecution must prove that the image on which it relies was recorded by the speed measuring and recording equipment at the specified time and location.
Mr Giumelli gave evidence of setting up and testing the equipment, both before and after his shift. But where the prosecution does not rely on a certificate under s 117A, it also needs to prove that the image that was relied on in evidence was produced from the data retrieved from the equipment. Mr Ireland asked Mr Giumelli about the production of the image and the witness replied, 'I got them sent to me. … It's the manufacturer certifies that they're from the camera unit'.[21] There was no other evidence.
[21] ts 17.
That, in my opinion, is sufficient ground to uphold the appeal on the issue raised in grounds 2, 3, 5 and 8 that the prosecution had not met the requirement for proof pursuant to s 117 of the Road Traffic (Administration) Act by evidence of an image from speed measuring and recording equipment. I would grant leave on those grounds and uphold the appeal.
The other issues on appeal
There was a miscarriage of justice because Mr Ireland did not enter a formal plea of not guilty: ground 9.
Mr Ireland complained, in his oral submissions, that the charge was not put to him. That complaint is not borne out by transcript, where the magistrate said to him, 'there's one charge of speeding, exceeding the speed limit, not more than nine kilometres, East Parade, East Perth'.[22] That was an accurate statement of the charge in the prosecution notice.
[22] ts 2.
Her Honour did not, however, ask Mr Ireland whether he pleaded guilty or not guilty but asked, more informally, 'what are you doing with that matter'. Mr Ireland replied that he was 'challenging the prosecution notice', on the basis that it had already been dealt with under s 19 of the 'Fines Act'. In effect, Mr Ireland wished to raise a double punishment argument - an argument that had then been considered in appeals brought by Mr Ireland in other matters and decided against him.[23]
[23] See Ireland v Watson [2020] WASC 1.
After some further discussion, Mr Ireland informed the court, 'I'm willing to go ahead with the trial whenever you're ready for it. I'm ready for it'.[24]
[24] ts 7.
While he did not use the words 'not guilty', what he said was an unequivocal statement that Mr Ireland pleaded not guilty to the charge that had been properly put to him and wished to proceed to trial.
Mr Ireland ran a variation of this ground in an earlier appeal before Hall J, where he alleged that his trial was a nullity by reason of the failure to require him to enter a plea. Hall J dismissed the ground and held that, where there was never any doubt that Mr Ireland knew what the nature of the charge was and was maintaining his plea of not guilty, the failure did not render the proceedings a nullity.[25]
[25] Ireland v Jackson [2020] WASC 2 [77].
Even if there was a procedural error, there was no substantial miscarriage of justice and the ground will be dismissed.
The magistrate erred in fact and in law when she did not distinguish between 'speed measuring equipment, and 'speed measuring and recording equipment', and refused when Mr Ireland asked for a calibration certificate: ground 2, ground 8.
The reference to a 'calibration certificate' in this ground - and at trial - is imprecise and produces uncertainty.
The Act provides for various certificates that may be used in evidence. In prosecutions relating to the speed of a vehicle, the Act provides for a certificate that a person is competent to use speed measuring equipment, or to install, set up, test or retrieve data from, speed measuring and recording equipment or produce images from the data.[26] Section 117A provides for an evidentiary certificate for images recorded by speed measuring and recording equipment. Section 117B, s 117G and s 117H provide for evidentiary certificates regarding the use of an average speed detection system.
[26] Section 117(8).
The word calibration, in this context, is generally used to refer to checking the accuracy of an instrument against a standard measure. None of the certificates provided for the in Act could be accurately described as relating to 'calibration'.
Mr Giumelli testified that he tested the equipment, both before and after use, and it tested correctly. He said that the equipment was checked annually, although not by him. There is, in my opinion, no separate requirement for some certificate as to the calibration of the equipment.[27]
[27] See Bond v Hodgson [2014] WASCA 200 [36(p)].
Mr Ireland submitted at trial that the calibration certificate had to be, and had not been, disclosed. Mr Giumelli referred to the equipment being calibrated yearly, but did not say that there was a certificate issued. He said 'an independent provider tests it, and calibrated it, and affixes their stamp to it, and puts the calibration date into the unit, and if the unit reaches the calibration date, it will just stop working'.[28] There was no evidence that a calibration certificate was issued, which (assuming there was an obligation of disclosure) could be disclosed.
[28] ts 15.
In her reasons for decision, delivered orally, her Honour did refer to the device used by Mr Giumelli as a 'speed measuring device'.[29] But I am satisfied that her Honour was referring to evidence of the use of a speed measuring and recording device, as the relevant evidence was a photograph of the vehicle recording its registration number and the speed ascertained and recorded by the device.[30]
[29] ts 20.
[30] ts 21.
As I have set out above, however, the particular evidentiary issues raised by the use of an image produced by speed measuring and recording equipment were not addressed.
The magistrate erred in fact and law in allowing into evidence documents that did not show that Mr Ireland was speeding and s 117 of the Road Traffic Administration Act 2008 (WA) was not complied with: ground 5.
Mr Ireland did not identify the documents to which he refers in this ground.
It is, however, part of the issue raised also by grounds 2, 3 and 8 that the prosecution had not proved the speeding offence in its reliance on s 117.
The Magistrate erred in law by not requiring the prosecution to disclose a copy of the PoliScan manual, or there was a miscarriage of justice because Mr Ireland was unable to challenge the prosecution evidence as to his speed without having a copy of the manual: ground 6.
The magistrate erred in not allowing Mr Ireland an adjournment to enable him to obtain a copy of the PoliScan manual: ground 6.
Mr Ireland did not ask for an adjournment to enable him to obtain a copy of the manual. There is no substance to the contention that the magistrate failed and refused to grant one.
The question whether the prosecution is required to disclose the manual for the PoliScan device has been previously considered. First, the disclosure obligation does not apply to the present offence. Second, the manual is not evidentiary material.[31]
[31] Ireland v Jackson [2020] WASC 2 [47] - [50]; Fisher v O'Hehir [2020] WASC 353 [79] - [81].
Leave to appeal on ground 6 is refused.
The Magistrate erred in law, and there was a miscarriage of justice, in that the prosecution failed to prove a proclamation certificate for the Road Traffic Code, the written law under which the charge had been brought, when it is necessary for subsidiary legislation to be proved by evidence: ground 7.
The respondent submitted that this question is determined by s 143 of the Evidence Act 1995 (Cth) which, by s 5, applies to all proceedings in an Australian court including a court of a State or Territory. The respondent argued that, by operation of s 143(1)(b), it is not necessary to prove subsidiary legislation in proceedings in any Australian court.
Section 143 provides, relevantly:
(1)Proof is not required about the provisions and coming into operation (in whole or in part) of:
(a)an Act, a State Act, an Act or Ordinance of a Territory or an Imperial Act in force in Australia; or
(b)a regulation, rule or by‑law made, or purporting to be made, under such an Act or Ordinance; or
(c)a Proclamation or order of the Governor‑General, the Governor of a State or the Administrator or Executive of a Territory made, or purporting to be made, under such an Act or Ordinance; or
(d)an instrument of a legislative character (for example, a rule of court) made, or purporting to be made, under such an Act or Ordinance, being an instrument that is required by or under a law to be published, or the making of which is required by or under a law to be notified, in any government or official gazette (by whatever name called).
The question is whether, when s 143(1)(b) refers to a regulation 'made … under such an Act or Ordinance', it includes a State Act or is confined to an Act of the Australian Parliament or of a Territory. There are arguments for why it should not be so confined. First, the same expression should be given a consistent meaning throughout the section. Section 143(1)(c) refers to a proclamation or order of the Governor of a State made under 'such an Act or Ordinance'. I am not aware of any circumstance in which the Governor of a State may make a proclamation or order under an Act of the Australian Parliament, or an Act or Ordinance of a Territory.
Second, s 143(1)(d) is also, on its face, of wide operation in referring to 'any government or official gazette' rather than a gazette of the Commonwealth or a Territory.
There is, however, a clear line of authority, discussed by Tottle J in Montalbano v Morris,[32] that in Western Australia regulations must be proved in evidence. His Honour was referred to the Commonwealth Evidence Act, but it did not affect his conclusion.
[32] Montalbano v Morris [2019] WASC 309 [37] - [44].
The respondent put an alternative argument based on the Reprints Act 1984 (WA) which, in s 8, provides that a reprint of any written law under the Act shall be judicially noticed. The argument is attractively simple. By s 5 of the Interpretation Act 1984 (WA), a written law means all Acts for the time being in force, and all subsidiary legislation for the time being in force. The Road Traffic Code is subsidiary legislation,[33] and has been reprinted. Section 8 of the Reprints Act provides for judicial notice of that reprint.
[33] Also defined in Interpretation Act, s 5, and including any regulation.
Given the extent to which a reprint may alter the text of a written law, under s 7 of the Reprints Act, it would be an odd result were the court to take judicial notice of those changes but not the original underlying text.
It is difficult to determine this ground because - Mr Ireland being unrepresented - the question of the operation of the Commonwealth Evidence Act, and the alternative argument based on the Reprints Act, were only argued on one side. It is not only difficult, but unnecessary. It should be left to be fully argued on another occasion.
The magistrate erred in fact and in law in not permitting Mr Ireland to put questions to the prosecution witness by which he sought to raise doubt about the accuracy of the PoliScan by establishing that it had not been properly tested, or that the circumstances were such that it might not have operated accurately with respect to his vehicle: ground 3.
The respondent accepts that the Magistrate interrupted Mr Ireland, or upheld objections, in the course of questions as to whether Mr Giumelli was legally parked when the speed of the appellant's vehicle was recorded;[34] whether he had a surveyor certificate as to the length of the range at which the PoliScan was tested;[35] and the manufacturer's instructions as to the setting up of the PoliScan.[36]
[34] ts 13.
[35] ts 14.
[36] ts 15 - 16.
The issue of whether Mr Giumelli was legally parked was properly dealt with as irrelevant.
The questions relating to the testing and setting up of the PoliScan were possibly material. The questions did not progress to the point where it is possible to say whether they were relevant or unfounded speculation.
Because of my findings on other grounds, it is not necessary to determine ground 3.
Result
It is sufficient, to dispose of the appeal, that Mr Ireland be given leave on grounds 2, 3, 5 and 8, and the appeal is upheld on the basis that the prosecution did not prove the image from speed measuring and recording equipment on which the charge relied.
I add a short comment: Mr Giumelli's certificate as an authorised person is no longer consistent with the Act where the authority relates to speed measuring and recording equipment. Certification as competent to 'use' the equipment may not be held to be sufficient where the act refers to being competent to install, set up, test or retrieve data from, the equipment or produce images from the data.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
27 OCTOBER 2021
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