Kizon v Lee - [2013] WASC 221

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: KIZON -v- LEE [2013] WASC 221

CORAM: BEECH J

HEARD: 31 MAY 2013

DELIVERED : 31 MAY 2013

PUBLISHED : 4 JUNE 2013

FILE NO/S: SJA 1141 of 2012

BETWEEN: JOHN KIZON
Appellant
AND
MALCOLM LEE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E A WOODS
File No  :PE 47191 of 2011

Catchwords:

Criminal law - Speeding - Whether police officer an authorised person for using a laser speed detection device

Legislation:

Road Traffic Act 1974 (WA), s 98A

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr L M Levy SC
Respondent: Ms K A T Pederson

Solicitors:

Appellant: Brennan & Co
Respondent: State Solicitor for Western Australia

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257
Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297
Hands v Baker [2009] WASC 66
K‑Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501
Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619

BEECH J:

Introduction

The appellant was convicted of speeding. His speed was measured by Senior Constable Lee, the respondent, at 63 km per hour in a 50 km per hour zone.
At trial and on this appeal, the appellant contended that under the applicable legislation the respondent was not an authorised person in relation to the speed measuring equipment used by the respondent. If that were correct, the charge should have been dismissed. However, for the reasons that follow, I was satisfied that it is not correct and, consequently, I refused leave and dismissed the appeal on 31 May 2013.

The facts

The facts are not in dispute.
On 6 January 2011, the respondent was conducting police traffic duties at the corner of Railway Parade and Northwood Street in West Leederville. The speed limit in the relevant area is 50 km per hour.
The respondent was operating a laser speed measuring device, namely an LTI 20‑20 UltraLyte. Using that laser device, the respondent recorded the appellant's vehicle travelling at 63 km per hour.
The LTI 20‑20 UltraLyte was approved by the Minister under s 98A(2) of the Road Traffic Act 1974 (WA); see Western Australia, Government Gazette, No 2 (6 January 2009) 20 ‑ 21, exhibit B.

The charge

The appellant was charged with driving on Railway Parade in West Leederville at a speed in excess of the speed limit of 50 km per hour, namely 61 km per hour.

The trial

At the trial, the appellant was represented by counsel. The appellant took objection to the admission of evidence of the speed allegedly recorded by the laser device. The ground of the objection was that…

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 Kizon v Lee

Details

AGLC: Kizon v Lee [2013] WASC 221
Case: [2013] WASC 221
Decision Date: 4 JUNE 2013

CaseChat Overview and Summary

The case of Kizon v Lee involves the appellant, Kizon, contesting the conviction for speeding based on evidence obtained from a laser speed detection device used by a police officer. The dispute centred on whether the police officer was an authorised person under the relevant statute to use the laser speed detection device. This case was heard in the Supreme Court of Western Australia.

The central legal issue was the interpretation of section 98A of the Road Traffic Act 1974 (WA), specifically the definition of an authorised person for using speed measuring equipment. The court had to determine whether the definition in section 98A(1) of an authorised person included only those police officers who were certified by the Commissioner as competent, as argued by the appellant, or if it also included police officers who were members of the police force without the need for additional certification.

The court found that the plain meaning and structure of the statutory provision indicated that there were two categories of authorised persons: members of the police force and persons certified by the Commissioner as competent to use the equipment. The court rejected the appellant's construction which would have required both conditions to be met simultaneously. Such an interpretation would render one part of the definition redundant and depart from the plain meaning of the legislative provision. The extrinsic materials and legislative history did not support the appellant's interpretation, as they showed that historically, members of the police force could use the equipment without needing certification. The court emphasised that it should not substitute its interpretation for the text of the legislation.

The court held that the police officer was an authorised person under section 98A(1) of the Act and that the evidence obtained from the laser speed detection device was admissible. The conviction for speeding was upheld.

Orders

Orders of the court

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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

Section 19(1) of the Interpretation Act 1984 (WA) identifies extrinsic material which a court may consider in order to confirm the meaning of a provision in a written law, or to determine the meaning of a provision where there is ambiguity or obscurity in its ordinary meaning, or when the ordinary meaning conveyed by the text of the provision, taking into account its context in the Act and its purpose or object, leads to a result that is manifestly absurd or is unreasonable. Such materials include any explanatory memorandum relating to the bill and the second reading speech. However, secondary materials must not be substituted for the text of the legislation: K‑Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 [53]. As in K‑Generation, that caution is apposite to this case. The definitions in s 98A(1) are to be construed by inserting them into the substantive provisions in which the defined terms are used, relevantly here s 98A(3). The appellant's construction is contrary to the plain meaning and structure of s 98A(1). In relation to both speed measuring equipment and distance measuring equipment, there are two distinct categories of authorised persons. The first is a person who is a member of the police force. The second is a person certified by the Commissioner as competent to use the equipment. A person who is in either of these two categories is an authorised person. Had the legislature intended that only members of the police force who were certified as competent be authorised persons, that could and would have been simply expressed by a single definition, not a definition with two limbs. An authorised person would have been defined as a person certified by the Commissioner of Police as being competent to use the equipment. The construction advanced by the appellant makes subparagraph (i) of the definition in each of s 98A(1)(a) and s 98A(1)(b) do no work. In my view, to accept the appellant's construction would be to unjustifiably depart from the plain meaning of the legislative provision and, in substance, rewrite it. The extrinsic materials and legislative history do not sustain the appellant's construction. In its original form, s 98A referred to a patrolman. That was defined to mean a member of the police force transferred for duties in the Traffic Patrol pursuant to s 13. In 1981, the Road Traffic Amendment Act deleted the references to patrolman and substituted them with the phrase 'member of the police force'. Thus, at all times prior to the amendments introduced by the Road Traffic Amendment (Measuring Equipment) Act 1996, a patrolman and later a member of the police force could give evidence about the use of speed measuring equipment without any need to prove competency or certification by the Commissioner. The purpose of the amendments to s 98A(1) was to allow certified non members of the police force to give prima facie evidence of the results of speed and distance measuring equipment, freeing up police officers to perform front‑line policing functions.