Kovac v Abbott
[2012] WASC 403
•31 OCTOBER 2012
KOVAC -v- ABBOTT [2012] WASC 403
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 403 | |
| 31/10/2012 | |||
| Case No: | SJA:1045/2012 | 25 OCTOBER 2012 | |
| Coram: | EM HEENAN J | 25/10/12 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | STEVEN KOVAC KEITH ANTHONY ABBOTT |
Catchwords: | Application for leave to appeal against conviction Speeding Allegation that radar speed detection apparatus unreliable No supporting evidence Refusal of adjournment No further evidence No prospects of success |
Legislation: | Criminal Appeals Act 2004 (WA) Freedom of Information Act 1992 (WA) |
Case References: | Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
KEITH ANTHONY ABBOTT
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE T J McINTYRE
File No : MH 5259 of 2011
Catchwords:
Application for leave to appeal against conviction - Speeding - Allegation that radar speed detection apparatus unreliable - No supporting evidence - Refusal of adjournment - No further evidence - No prospects of success
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA)
Freedom of Information Act 1992 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms J N Harman
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
(Page 3)
1 EM HEENAN J: This is an application for leave to appeal against a conviction for speeding and an associated order for the payment of the monetary penalty and the imposition of a demerit point penalty against the applicant, Steven Kovac, which were imposed after trial in the Magistrates Court by his Honour, Magistrate McIntyre on 17 January 2012.
2 The charge against Mr Kovac was that on 6 January 2011, at Lakelands, he drove a vehicle, registered number 1CYZ-886, on a road, namely Mandjoogoordap Drive, within a speed zone where the numerals on the restricted sign at the beginning of the speed zone indicated a speed of 80 km per hour, and drove said vehicle at a speed in excess of that shown on the restricted sign, namely, 95 km per hour. Mr Kovac entered a plea of not guilty. The matter proceeded to trial, as I have said, before his Honour on 17 January 2012.
3 Evidence was given for the prosecution from the investigating police officer, Senior Constable Keith Anthony Abbott, the respondent in the present matter, whose evidence I will come to in more detail in a moment. Essentially, it was that he had been on patrol in a police vehicle, he had his attention drawn to the applicant's vehicle, which he believed was speeding, he used a radar detection device to measure the speed which gave a reading of 97 km per hour, which was corrected and adjusted to 95 km per hour, and hence the charge was laid.
4 That was the only evidence for the prosecution. Mr Kovac did not himself call or adduce evidence. The learned magistrate convicted the appellant on the evidence of the prosecution, being satisfied with evidence that the speed detection device was reliable and that it had been used by a qualified operator and in accordance with the operating instructions.
5 On this present matter Mr Kovac seeks leave to appeal on the following three proposed grounds:
1. The following trial was conducted by Magistrate McIntyre without consideration all the evidence. Furthermore, despite my submissions to the magistrate that all the evidence was not obtained from my numerous FOI requests to the police and the Main Roads Department, the magistrate decided to proceed with the trial.
6 Then there is a reference to a highlighted portion in the transcript where the adjournment was sought and refused.
2. Magistrate McIntyre therefore was not privy to all the facts surrounding the case and was incapable of making an unbiased
- decision as evidence which was before him solely upon Officer Abbott's recollection of the evening in question.
- 3. Based on the failures by Magistrate McIntyre, I am requesting this matter be reconsidered.
7 For any person to appeal from a decision of the Magistrates Court in circumstances such as the present it is necessary to obtain leave to appeal. The Criminal Appeals Act provides that leave to appeal must be granted for each proposed ground of appeal and that if leave is not granted the appeal must be dismissed. The authority of this court in the case of Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 is to the effect that for leave to appeal to be granted it is necessary to establish that each proposed ground of appeal is fairly arguable or has prospects of success; if a proposed ground of appeal has no prospect of success the court is prevented from giving leave and must dismiss the appeal.
8 In this present case the application came before Hall J on the papers and the question of whether or not leave to appeal should be granted on any of the proposed grounds was referred to the hearing of the appeal itself. That order was made on 16 August 2012. Other orders and directions of a procedural nature for the preparation of the appeal were also made but need not now be mentioned. Detailed written submissions have been filed by the applicant and by the respondent, both of which have been helpful.
9 At the commencement of the hearing before the learned magistrate, Mr Kovac explained that he had not got all the evidence that he then needed to present his case and that he was waiting for responses to requests for freedom of information made under statute which he had addressed to the WA police and to the Main Roads Department dealing with the design and aesthetics of the actual road. This observation was a plain indication to his Honour that Mr Kovac was, in effect, asking for an adjournment of the trial until further evidence came to hand. His Honour refused to grant that adjournment, observing that matters which appeared to be the subject of the request for freedom of information under the Freedom of Information Act 1992 (WA), namely, how the speed was actually being recorded and measured; whether it was being clocked or whether it was a direct measurement of speed; or whether it was point-to-point measurement, were all matters which the applicant could put to the police officer at the trial and that there was, for that reason, no need to obtain an adjournment or any further evidence.
(Page 5)
10 Mr Kovac then elaborated, saying that he was looking to have the certificate of service of the speed-measuring device and other paperwork, but again his Honour indicated that he could ask the witness questions about those matters and he could respond to it. In any event, the application for an adjournment was refused.
11 The proposed grounds for appeal challenge the decision refusing Mr Kovac an adjournment and in effect assert that he was deprived of an opportunity properly to defend the case. Whatever may be the merits of that application, the fact is that no evidence has been put before this court of the material or of expert opinions or any other evidence which Mr Kovac maintains he would have presented to the court had he been given the adjournment and an opportunity to do so.
12 The case was determined on 17 January 2012. Now more than 10 months later, there has been no affidavit or other material filed in this court for use on the proposed appeal setting out the evidence which Mr Kovac says he would have adduced had he had an opportunity to do so. That being the case, ordinary principles would dictate that the refusal of the adjournment has given rise to no miscarriage of justice or prejudice because there is no reason to suppose that the result would have been any different or that the evidence which Mr Kovac was attempting to assemble would have made any difference to the final result.
13 However, at the hearing today Mr Kovac mentioned that he had some paper materials, which were not in admissible form, which he wished to rely upon and further evidence which he wished to obtain from an unidentified university professor, and still further evidence from a booklet about the operating requirements of this particular speed-measuring device which he wanted to put before this court. There was no explanation of why this had not been done beforehand, although it would appear that it is Mr Kovac's lack of formal legal training or knowledge of the requirements of practice and procedure which may have contributed to this.
14 On further questioning, it became apparent that the materials to which Mr Kovac was referring were materials which, at the most, would indicate that there was a variety of factors or variables which had the potential to affect the result or reliability of this particular radar device and that if he had an opportunity to assemble and present this evidence it would establish that such devices were subject to inaccuracies in certain conditions.
(Page 6)
15 I refused the application for an adjournment of the hearing of this present application on the basis that adequate opportunities had been given to Mr Kovac to put material before this court and that they had not been taken, whether from ignorance, lack of appreciation of formal requirements or for any other reason. I also pointed out that the requirements of justice necessitated that matters be done on time and that this court's time was an important public resource which had to be rationed according to the requirements of particular cases. There was nothing to suggest that he had been deprived of an opportunity to present evidence in time had he wished to do so.
16 More importantly, however, the evidence which was only identified in the general fashion which I have already described and which Mr Kovac wished to have put before this court amounted to nothing more than identifying various environmental, physical and other scientific factors which were capable of affecting the reliability of the radar speed detection device. The point in the present case, however, is that the speed detection device was an authorised device; it was operated by an experienced and qualified operator. The operator, the respondent, gave evidence before his Honour that he had tested the device prior to using it on this occasion and that it was in proper working order.
17 The respondent also confirmed that when he made the speed recording, which was the subject of the prosecution, from a moving vehicle, the speed of his moving vehicle as recorded on the detection device, coincided with the speed of the vehicle itself measured from its digital speedometer and that this confirmed that the reading was reliable. That being the case, there was no reason in the operator's mind to doubt the reliability of the result.
18 In the course of the trial Mr Kovac asked the police officer a series of questions, the purpose of which, evidently enough, was to suggest factors which may have adversely affected the reliability of the speed measuring device. For example, he asked whether or not it was dark at the time and foggy in the area. Constable Abbott disputed the suggestions. Mr Kovac asked whether those conditions, or alleged conditions, affected the speed recorded by the device. Again Constable Abbott denied that. There was evidence that it was possible that fog can affect a speed device, but the officer's evidence was that there was no fog in that part of the road. The officer also denied the allegation that the patrol car was positioned upon a crest of the road. His evidence was that the road arches down in a hill-shape fashion to the position where he detected the appellant's speed.
(Page 7)
19 Constable Abbott also rejected the suggestion that at the time the speed was measured the appellant's vehicle was coming down the hill and the patrol car going up the hill. He also disputed that the relative positioning of the vehicles was such as would cast doubt upon the accuracy of the reading. Constable Abbott also rejected the appellant's assertion that the latter was travelling at only 80 km per hour, and he also denied that the appellant had raised that with him at the time. He also maintained that the device was correctly used.
20 On the evidence of Constable Abbott, the learned magistrate found that the speed detection device was approved under the regulations; that the operator, Constable Abbott, was competent and qualified with the device; thirdly, that the device had been tested and found to be working in accordance with the manufacturer's instructions, and that on the occasion when the speed of the vehicle was ascertained, the device was used appropriately and correctly and that the speed recorded was accurate. That led to the conviction.
21 In the course of the proceedings, when Constable Abbott had given evidence and was being cross-examined by Mr Kovac, in the transcript at page 12, there is a series of questions put by Mr Kovac about environmental factors, the presence of fog, and on the subject of fog there was a question which is not fully recorded in the transcript because various voices were speaking simultaneously, the subject of which seems to be a suggestion that the fog would have a bearing on the accuracy of the device, and the answer was, 'It's possible it can affect it but that night there was no fog in that part of the road.' Mr Kovac then propounded the following question:
Are there any other environmental factors that actually affect the speed measurement?
22 At that point, his Honour intervened and said:
It is not for the witness to speculate. I understand what your issues are. You are quite entitled to put your side of the story but asking a question in that way is pure speculation. His evidence is the machine device was functioning according to the manufacturer's instructions. You raise questions like the lighting and whether - and you are entitled to so do; okay. So if you have a question, you put the question and I heard the answer -
23 and his Honour went on. Mr Kovac, in his oral submissions, has contended that he was wrongly prevented from asking a relevant question and that his Honour refused to allow him to adduce evidence which may
(Page 8)
- have been material to his case. In my opinion, the learned magistrate committed an error of law in refusing to allow the witness to insist on an answer to that question. As I have said, the question was:
Are there any other environmental factors that actually affect the speed measurement?
25 The position under the legislation is that prima facie effect is given to the result of such an authorised radar speed detection device. That casts an evidentiary onus upon a person challenging the result to demonstrate that there was reason to doubt the accuracy of the device on the particular occasion. No evidence was adduced by Mr Kovac himself or from any other witness to suggest, let alone establish, that any of the particular factors which he had identified: fog; darkness; the angle of approach; the trajectory of the road; or whether or not the vehicles were travelling in the same or different planes, would have affected the reliability of the result.
26 In the absence of any such evidence which would lead to a conclusion on the balance of probabilities that this result was unreliable, there is no reason to doubt the result. Therefore, although there has been this error of law, it has not produced a substantial miscarriage of justice. Otherwise, there is nothing in the proposed grounds of appeal which I consider raises any arguable reason to conclude that there was an error of law or a miscarriage of justice. That being the case, I would refuse leave to appeal and dismiss the appeal.
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