Kizon v Lee
[2013] WASC 221
•4 JUNE 2013
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 the respondent was not authorised to operate the laser device on the date of the alleged offence. The magistrate overruled that objection, and admitted the evidence.
At the trial, in substance, the only issue raised in defence of the charge by the appellant was whether the respondent was an authorised person to operate the laser device. The learned magistrate found that, because the respondent was a police officer, he was an authorised person pursuant to s 98A(1)(a)(i) of the Road Traffic Act. That should have been a reference to s 98A(1)(b)(i), but nothing turns on that. Her Honour found that in order for a police officer to be an authorised person pursuant to that section, it was not necessary for him or her to have been trained and certified competent (ts 1/11/12, pages 4 ‑ 5).
As will appear, I respectfully agree with the magistrate's decision, and with her reasoning.
Grounds of appeal
Although expressed as two grounds, in substance the appellant relies upon a single point. The appellant contends that the learned magistrate erred in law by finding that the respondent was an authorised person in relation to the speed measuring equipment pursuant to s 98A(1), and thus erred in admitting into evidence the speed of the appellant's vehicle recorded by that equipment.
It is not in dispute on appeal that if the respondent was an authorised person:
(1)section 98A(3) applied, so that there was prima facie evidence that the appellant's speed was 63 km per hour;
(2)there was nothing to displace that evidence; and
(3)consequently, the appellant was guilty of the offence.
The legislative provisions
Section 98A of the Road Traffic Act provides, relevantly, as follows:
(1)In this section -
authorised person means -
(a)in relation to distance 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;
(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;
…
(2)The Minister may, from time to time, by notice published in the Government Gazette, approve of types of apparatus for the purpose of ascertaining the speed at which a vehicle is moving and may, by notice so published, revoke any such approval.
...
(3)In any proceeding for an offence against this or any other Act or the regulations evidence may be given of the use of speed measuring equipment by an authorised person in relation to a vehicle and of the speed at which that vehicle was moving as ascertained by the use of that equipment, and that evidence is prima facie evidence of the speed at which that vehicle was moving at the time of the use of that equipment in relation to that vehicle.
The appellant's submissions
The appellant submits that the respondent was not an authorised person, because he was not certified by the Commissioner of Police as being competent to use the equipment that he used.
The respondent's certificate of competency identified the successful completion of a course in May 1992 in relation to the LTI 20‑20 Laser UltraLyte/Compact. That course was long before the Minister's approval of the LTI 20‑20 UltraLyte in January 2009. The appellant submits that, therefore, the respondent was not certified competent in relation to the equipment that was used.
The appellant submits that the history and evident purpose of s 98A reveals that only a person who is certified by the Commissioner as competent to use the equipment is an authorised person in relation to that equipment.
The appellant relies on the second reading speech for the Road Traffic Amendment (Measuring Equipment) Act 1996 (WA) by which s 98A was amended to its current form.
In the second reading speech, the Hon Attorney General said as follows:
Civilian operators were employed to free up fully trained police officers to perform the front line policing functions for which they have been trained and employed. In the event that it is said that there is something different in the operation of equipment by civilians as opposed to police officers, let me state categorically that there is not. Both police officers and civilian operators receive identical training.
Let me also state categorically that there is no difference in the expertise and ability of civilians or police offers to operate this equipment. It is a requirement of the Police Service that before a person may operate the equipment, they must undergo and pass a training course.
The training course has now been run for more than a decade, and during that time a number of candidates have failed to qualify. This indicates that certification of competency is not given lightly. This situation will not be altered in any way by this Bill, because under it the Commissioner of Police must certify the competence of operators. Without certification, the civilian operator will not be authorised and the evidence of that civilian will not attract the same prima face status (Western Australia, Parliamentary Debates, Legislative Council, 4 September 1996, 5098 (Mr P Foss, Attorney General)).
The appellant submits that the second reading speech reveals that it was considered necessary for any authorised person, whether a member of the police force or person certified by the Commissioner, to have undergone and passed a training course and be so certified.
Further, the appellant points out that pt 2 of appendix A to the Australian Standard for laser‑based speed detection devices contemplates that an officer will receive training on any new device introduced under the standard. The appellant submits that that, combined with the requirement for the apparatus to be approved by the Minister pursuant to s 98A(2), supports the view that an authorised person means someone so certified by the Commissioner for the use of particular equipment.
The appellant submits that s 98A(1)(a)(i) and s 98A(1)(b)(i) should be read as if each said 'a member of the Police Force certified by the Commissioner of Police as being competent to use the equipment'.
For the reasons that follow, I do not accept these submissions. In essence, that is because the construction invited by the appellant is contrary to the plain meaning of s 98A(1). As the principles relevant to statutory construction make clear, secondary material such as the second reading speech cannot be used to rewrite the legislation. In effect, that is what the appellant's submissions involve.
I turn to the principles of statutory construction.
The principles of statutory construction
The starting point for the construction of a statute is the text. Statutory construction is a 'text based activity': Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [4] (French CJ), [47] (Hayne, Heydon, Crennan & Kiefel JJ); Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619 [16].
In Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257 [39], French CJ, Hayne, Crennan, Bell and Gageler JJ recently emphasised the centrality of the text in statutory construction, saying as follows:
'This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text'. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself (footnotes omitted).
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 proper construction of s 98A(1)
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.
There is nothing in the purpose or object of s 98A that means the ordinary meaning leads to an unreasonable result. In any event, s 19(1)(b)(ii) of the Interpretation Act does not permit a court to rewrite a statutory provision, without regard to its language, whenever it concludes that the provision leads to an unreasonable result. As the High Court has emphasised, statutory construction is a text‑based activity. Further, questions of degree and judgment are involved. The more unreasonable the result of a construction, the greater the inclination to depart from the literal or ordinary meaning of the statutory language. See for example, Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 320 ‑ 321. As I have said, the appellant's construction involves substantial violence to the language and structure of s 98A(1). In my view, the Minister's understanding that police officers were trained and certified falls well short of making the ordinary meaning so unreasonable as to sustain the appellant's construction.
In written submissions, the appellant placed some reliance on the decision of Blaxell J in Hands v Baker [2009] WASC 66. That decision does not assist the appellant's case. Hands v Baker dealt with a different question: whether the laser device that had been used to measure speed had been approved by the Minister under s 98A(2). The decision turned on the proper construction of the Minister's approval. Blaxell J upheld the magistrate's decision that the Minister's approval of the laser device 'LTI 20‑20' did not encompass the subsequently developed 'LTI 20‑20 UltraLyte' laser device.
The appellant also relied on the relevant Australia Standard for laser devices (exhibit C) in its written submissions. That provides that for the purposes of law enforcement, the operator of the laser‑based speed detection device shall be trained in accordance with Appendix A, and that 'where a new type of laser‑based speed detection device is introduced into operation, each operator who will be using it, shall be trained to use the laser device'. As senior counsel for the appellant properly accepted, the provisions of the Australia Standard do not influence, much less control, the proper construction of s 98A.
Conclusion
For these reasons I rejected the appellant's construction of s 98A(1), and dismissed the appeal. As I consider there is no merit in the appellant's argument, leave to appeal is refused.