Ireland v Jackson
[2020] WASC 440
•3 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: IRELAND -v- JACKSON [2020] WASC 440
CORAM: ALLANSON J
HEARD: 21 SEPTEMBER 2020
DELIVERED : 3 DECEMBER 2020
FILE NO/S: SJA 1125 of 2019
BETWEEN: MARK GRAEME IRELAND
Appellant
AND
ALISON JACKSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE E SHACKLETON
File Number : BU 2491 of 2019
Catchwords:
Criminal law - Appeal against conviction - Traffic offence - Speeding - Where certificate tendered that prosecution witness an authorised person to give evidence as to speed - Where prosecution and magistrate relied on certificate - Where appellant unrepresented - Where now conceded that certificate invalid - Whether miscarriage of justice
Legislation:
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 11, s 17, s 19, s 21
Road Traffic (Administration) Act 2008 (WA), s 105, s 117, s 117A
Road Traffic Code 2000 (WA), reg 11
Result:
Leave to appeal granted on ground 4
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | E Negus |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Ireland v Jackson [2020] WASC 2
Ireland v Watson [2018] WASCA 57
ALLANSON J:
Introduction
In October 2018, Mr Ireland was issued with an infringement notice for exceeding the speed limit, contrary to reg 11(3) of the Road Traffic Code 2000 (WA). On 18 April 2019, he elected to have the matter go to court and a prosecution notice was issued pursuant to s 21(5) of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA).
The charge was based on Mr Ireland's vehicle being recorded on speed measuring and recording equipment as exceeding the speed limit in a 110 km/h zone by not more than 9 km/h.
The charge was heard in the Magistrates Court at Bunbury on 11 September 2019. Mr Ireland was convicted and has applied for leave to appeal that conviction.
Mr Ireland was self‑represented at trial. He is also self‑represented in this appeal.
The trial
At the commencement of the trial, before other evidence was called, Mr Ireland agreed to the certificate of evidence showing the registration of the vehicle and the competency certificate of the camera operator, Mr Branko Hofman, going into evidence.[1] Mr Ireland also admitted that he was the driver of the car on the relevant day.[2]
[1] Affidavit of Mr Ireland, sworn 5 November 2019, annexure MG 13, 34 ('Affidavit of Mr Ireland, trial ts').
[2] Affidavit of Mr Ireland, trial ts, 35.
The prosecution called Mr Hofman as their only witness, and otherwise relied on documents tendered by consent or through Mr Hofman.
Mr Hofman gave evidence that he is an authorised person to operate speed measuring equipment, 'Vitronic PoliScan Speed M1', and that the equipment was gazetted as an approved laser apparatus to ascertain the speed at which a vehicle is moving.[3] An extract from the Government Gazette of 1 September 2017 was adduced as exhibit 3 in the trial. The Gazette extract provided that that the Vitronic PoliScan Speed M1 was apparatus approved under s 117(2)(c) of the Road Traffic (Administration) Act 2008 (WA), that is speed measuring and recording equipment.
[3] Affidavit of Mr Ireland, trial ts, 46.
Mr Hofman testified that on 21 October 2018 he was on duty and working. He said:
On that day, when I came to work, I conducted zero velocity distance test on the equipment bearing serial number … 643557, and it is test that is done on the test range in Bunbury Police Station on the … South West Traffic's office, and the equipment was testing correctly.
… I went to my location and, between 1407 and 1702, I conducted an operation on Forrest Highway, Leschenault approximately 600 metres north of Marriot Road. I took measurements of the lanes and I entered those measurements into operating system of the equipment. When I was satisfied with the functioning of the system, I started the deployment. Before I started deployment, I checked the speed limit of the zone. That was 110 kilometres per hour and it was indicated by signs … One of the vehicles during deployment was photographed travelling at 119 kilometres per hour…[4]
[4] Affidavit of Mr Ireland, trial ts, 48.
In later evidence, Mr Hofman said that the equipment was set up on a tripod at the side of the road.[5] He said that during the deployment, a vehicle was photographed travelling at 119 km/h. Mr Hofman produced an image of the vehicle that he said was produced by the equipment. The date, time, speed for the zone, and detected speed and travel of the vehicle was recorded on the top of the image. The system number and location details of where the photograph was taken were recorded at the bottom of the image.[6] The photograph was received as exhibit 4.
[5] Affidavit of Mr Ireland, trial ts, 53.
[6] Affidavit of Mr Ireland, trial ts, 48 ‑ 50.
Mr Hofman said that after finishing his deployment he went back to the police station and conducted another zero velocity distance test to confirm the camera was 'operating properly and measuring things properly'. There were 'no issues'.[7]
[7] Affidavit of Mr Ireland, trial ts, 51.
Mr Hofman did not 'take' the photograph. Nor did he say that he downloaded the image from the equipment. His evidence, in effect, was that his job was confined to checking the equipment before it was deployed on the road side, setting up and retrieving the equipment, and confirming the equipment was working properly at the end of the deployment.
In cross-examination, Mr Hofman confirmed that the equipment was working properly when tested according to standard operational procedures. The equipment was set up on a tripod on the side of the road, according to approved procedures. The 'trigger point' for the camera was 118 km/h.[8]
[8] Affidavit of Mr Ireland, trial ts, 52 ‑ 53.
Mr Ireland chose not to give evidence.
The evidentiary provisions
The Road Traffic (Administration) Act, in pt 6 div 2, contains evidentiary provisions that apply in prosecutions. Relevantly, s 117 and s 117A apply in prosecutions for an offence under a written law. Mr Ireland was charged with an offence under a written law.
Section 117A provides for the proof of specified matters by certificate. It is not in dispute that the prosecution did not produce and rely on a certificate in accordance with s 117A.
Section 117 applies more broadly to evidence of distance measuring equipment, speed measuring equipment, and speed measuring and recording equipment.
Pursuant to s 117(1):
approved procedure, in relation to setting up, installing, testing or retrieving data from speed measuring and recording equipment or producing images from the data, means the procedure approved by the Commissioner of Police;
authorised person ‑
…
(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;
…
speed measuring and recording equipment means apparatus of a type approved by the Minister under subsection (2)(c);
By s 117(2):
The Minister may, from time to time, by notice published in the Gazette, approve of types of apparatus for the purposes of ‑
(a)ascertaining the speed at which a vehicle is moving; or
(b)ascertaining distances on roads; or
(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.
Section 117(4) and 117(5) provide for evidence of facts ascertained by the use of speed measuring equipment and distance measuring equipment.
By s 117(6) to s 117(9):
(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.
(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).
(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.
(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.
(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 issue on appeal
The primary issue on appeal is that in ground 4: that the magistrate erred in relying on the evidence of Mr Hofman because the certificate of competence was deficient.
It is not in dispute that the certificate of competency tendered for Mr Hofman was deficient, so that he was not an authorised person as defined in s 117 of the Road Traffic (Administration) Act, that is, 'a person certified by the Commissioner of Police as being competent to install, set up, test or retrieve data from, [speed measuring and recording] equipment or produce images from the data'.
The respondent submitted that the prosecution was not required to prove Mr Hofman was an authorised person for his evidence and the photograph produced by the speed measuring and recording equipment to be prima facie evidence of the speed of Mr Ireland's vehicle. Counsel for the respondent developed a submission that the prosecution can rely on the evidentiary provisions in s 117(6) to s 117(7) without proving that the speed measuring and recording equipment was installed, set up, and tested, and the data was retrieved by, a person certified as competent to do so.
The respondent submitted that s 117(6) and s 117(7A) make no explicit reference to an 'authorised person'. The court should not 'read in' an implied requirement that evidence must be given by an authorised person, or that the prosecution must prove an authorised person did a particular thing, for the prosecution to rely on s 117(7A).
The respondent sought to distinguish this matter from the decision of Hall J in Ireland v Jackson,[9] on the basis that his Honour was there addressing the provisions relating to speed measuring equipment, which differ from those relating to speed measuring and recording equipment. Specifically, the provisions relating to speed measuring equipment provide for evidence of its use by an authorised person.
[9] Ireland v Jackson [2020] WASC 2.
But the problem identified by Hall J in the earlier case is still present: the reliance by the prosecution and the court on an invalid certificate. As his Honour said:
I note that s 117(9) provides that nothing in s 117 is to be construed as precluding the introduction of any competent evidence, whether in addition to or independent of any evidence for which the section makes provision. This makes it clear that certificate evidence under s 117 is an aid to proof but does not exclude matters such as whether a person is authorised or competent to use a particular device from being proved in other ways. However, in this case it is apparent that the certificate was relied on by the prosecution and the magistrate as proving the matters to which it related. There was no independent evidence of Mr Strang's authority or competence. Further, it was on the basis of the certificate that it was assumed that Mr Strang's evidence should be accepted in the absence of proof to the contrary. The certificate therefore was a critical element of the prosecution case.[10]
[10] Ireland v Jackson [59].
In the case currently before the court, the prosecution tendered and relied on evidence that Mr Hofman was an authorised person:
(1)Mr Hofman gave oral evidence that he was authorised to operate speed measuring equipment and a certificate of competency was tendered and received as exhibit 1 in the trial;
(2)Mr Hofman gave evidence about checking and setting up the equipment;
(3)in closing submissions, the prosecutor referred to the requirements of s 117 being met, and said that the prosecution had an authorised person and authorised equipment.[11]
[11] Affidavit of Mr Ireland, trial ts, 60.
Mr Ireland was not represented at trial. In explaining the trial process to him before evidence was called, the magistrate referred to s 117(4) as relevantly providing for prima facie evidence of speed.[12] In his brief reasons for decision, the trial magistrate relied on the documents tendered as proof of the speed of Mr Ireland's vehicle. His Honour said:
The Road Traffic (Administration) Act does allow for the tendering of the evidence that was tendered to be prima facie evidence of the speed and, if uncontroverted, becomes then evidence beyond a reasonable doubt of that speed.[13]
[12] Affidavit of Mr Ireland, trial ts, 42.
[13] Affidavit of Mr Ireland, trial ts, 61.
The speed at which Mr Ireland was driving could have been proved otherwise than by relying on the certificate that Mr Hofman was competent to install, set up, test or retrieve data from the equipment. But the evidence of the image ‑ how it was produced, who retrieved it ‑ could have been questioned if the trial had not proceeded on the incorrect basis that the proof of speed was under s 117(4), with Mr Hofman authorised to give that evidence.
I am satisfied that the magistrate relied on s 117(4), and relied on the certificate of Mr Hofman as an authorised person. It is not necessary, for the purposes of this appeal, to consider the wider questions argued by the respondent. They were well argued, but there was no contradictor. I mean no disrespect to Mr Ireland, but, as a self‑represented litigant, he could not be expected to meet the argument put against him.
I am satisfied that there has been a miscarriage of justice.
The error alleged in ground 4 has been made out. I would grant leave and allow the appeal on that ground.
The other grounds of appeal
Ground 1 does not, in itself, allege any error.
Ground 2 - that the prosecution was not commenced in accordance with s 105 of the Road Traffic (Administration) Act - was not pressed.
Ground 3 alleged that the magistrate erred in proceeding to trial because the infringement notice no longer existed once it had been registered under the Fines, Penalties and Infringement Notices Enforcement Act.
With respect to Mr Ireland, I could not follow his argument at all. Mr Ireland was charged on a prosecution notice issued in accordance with s 21(5) of the Fines, Penalties and Infringement Notices Enforcement Act. By s 17 of that Act, after an infringement notice is registered, the Registrar of the Fines Enforcement Registry must issue to the alleged offender an order to pay the modified penalty and enforcement fees specified in the order, or to make an election to have the charge heard and determined by a court.[14] By s 21, where an alleged offender makes such an election, the Registrar must lodge a prosecution notice with a court of summary jurisdiction, and the notice is to be taken to have been made in accordance with the Criminal Procedure Act 2004 (WA). The proceedings against Mr Ireland were on the prosecution notice.
[14] Election 'means an election in writing to have a charge for an alleged offence heard and determined by a court': Fines, Penalties and Infringement Notices Enforcement Act s 11.
In his submissions, Mr Ireland appeared to argue that the Registrar had issued a licence suspension order under s 19 of the Fines, Penalties and Infringement Notices Enforcement Act before Mr Ireland made his election. He said that amounted to double punishment if he was to be tried on his election. He also submitted that the suspension order was an order made by a non-judicial officer and was in breach of ch III of the Commonwealth Constitution.
Both of those arguments were considered by the Court of Appeal in Ireland v Watson and found to be without substance.[15]
[15] Ireland v Watson [2018] WASCA 57.
Ground 3 is without merit and leave should be refused.
Mr Ireland withdrew ground 5 at the hearing.[16]
[16] Appeal ts 19.
At the hearing, Mr Ireland was given leave to add a ground of appeal that there had been a miscarriage of justice because a 'calibration certificate' was not disclosed. The ground assumes that the prosecution was relying on the evidentiary provisions in s 117A of the Road Traffic (Administration) Act. Section 117A was not relied on, and the ground raises no relevant error. Leave will be refused.
Conclusion
Grounds 1, 2, 3 and the additional ground added at hearing are devoid of merit and leave to appeal is refused.
Leave is granted and the appeal allowed on ground 4.
The conviction, sentence and cost order are set aside. I will hear the parties on whether the matter should be remitted to the Magistrates Court for retrial.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson
3 DECEMBER 2020
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