Lyster v Kemp - [2010] WASC 47

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LYSTER -v- KEMP [2010] WASC 47

CORAM: BEECH J

HEARD: 16 FEBRUARY 2010

DELIVERED : 16 MARCH 2010

FILE NO/S: SJA 1127 of 2009

BETWEEN: GEOFFREY RALPH LYSTER
Appellant
AND
DARRYL COLIN KEMP
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT MANDURAH
Coram  :MAGISTRATE T McINTYRE
File No  :MH 3739 of 2009

Catchwords:

Criminal law - Driving offence - Speeding offence - Application for adjournment - Whether magistrate erred in refusing to adjourn - Turns on own facts

Legislation:

Road Traffic Act 1974 (WA) s 98A
Road Traffic Code 2000 (WA) reg 11(3), 295, 297, 300

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms H E Prince
Respondent: Ms M J Paterson

Solicitors:

Appellant: R J Kerferd & Co
Respondent: State Solicitor for Western Australia

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

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 83 ALJR 951
De La Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
DPJB v The State of Western Australia [2010] WASCA 12
Hands v Baker [2009] WASC 46
Lewis v The State of Western Australia [No 2] [2008] WASCA 155; (2008) 37 WAR 483
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
Pallett v Paul [2007] WASC 290
Rinaldi v The State of Western Australia [2007] WASCA 53
Rodway v The Queen (1991) 169 CLR 515
The State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

BEECH J:

Introduction

The appellant Geoffrey Ralph Lyster (the driver) was charged with exceeding the speed limit by driving 86 km per hour in a 60 km per hour zone, contrary to reg 11(3) of the Road Traffic Code 2000 (WA) (the Traffic Code). He appeals against his conviction.
The grounds of appeal raise three issues:
1.Did the magistrate err in his discretionary decision to decline to grant the driver's application to adjourn the trial?
2.Should the magistrate have concluded that, on the evidence before him, the prosecution had failed to prove beyond reasonable doubt that the speed limit sign was erected under valid legal authority?
3.Did the magistrate err in admitting evidence that the mobile radar speed measuring unit used in that case was an approved device under the regulations made under s 98A of the Road Traffic Act 1974 (WA)?
There is also an application by the driver to adduce additional evidence on appeal.
It is convenient to outline the legislative framework for the charge, and the course of the trial, before turning to these issues.

The statutory framework

The driver was charged under reg 11(3) of the Traffic Code, which provides as follows:
(3) A person shall not drive a vehicle in a speed zone, at a speed exceeding, in kilometres per hour, that indicated by the numerals on the speed limit sign, at the beginning of the speed zone.
A 'speed zone' is defined in reg 3 to be, relevantly, a length of carriageway defined at its beginning by means of a speed limit sign and at its end by means of another speed limit sign or an end speed limit sign.
At the trial, the driver raised issues about whether the speed limit signs in question had been validly erected. Regulations 295 and 297 are, relevantly, in the following terms:
295.Authorisation to be in writing
A reference in these regulations to something that is authorised, means authorised by the person described as possessing that power, and the authorisation is to be in writing.
297.Power to erect traffic-control signals and road signs
(1)The Commissioner of Main Roads may erect, establish or display, and may alter or take down any road sign, road marking or traffic-control signal.
(2)The Commissioner of Main Roads may allow an authorised body to erect, establish, display, alter or take down any particular road sign, road marking or traffic‑control signal, or road signs, road markings or traffic‑control signals of a class or type of classes or types, and in the circumstances (if any), specified in the instrument of authorisation.
…
(8)Unless otherwise stated by the Commissioner of Main Roads, an authorised body may delegate the responsibility for the erection, establishment, display, alteration or the taking down of road signs in the circumstances set out in subregulation (2) or (3).
'Authorised body' is defined in reg 3 as follows:
Authorised body means a government department, government instrumentality, statutory authority, local government or a body authorised by the Commissioner of Main Roads for the purposes of regulation 297(2).
Regulation 300(3) provides as follows:
300.All traffic-control signals and traffic signs to be operative
(3)A traffic sign or traffic-control signal marked, erected, established or displayed on or near a road is, in the absence of evidence to the contrary, presumed to be a traffic sign or traffic-control signal marked, erected, established or displayed under the authority of these regulations.
At trial, counsel for the driver emphasised the distinction between speed limit signs on main roads and those on secondary roads. The distinction between main roads and secondary roads is made in the Main Roads Act 1930 (WA). Sections 16(1b) and (1c) of that Act are in the following terms:
16. Powers of Commissioner
(1b)Apart from any power to do so expressly conferred by this Act, the Commissioner’s power to control or regulate traffic, or any person, on a highway or main road by any means is such as is from time to time conferred on the Commissioner by regulations made under the Road Traffic Act 1974.
(1c)The Commissioner is to be taken as always having been authorized by the regulations referred to in subsection (1b) to operate traffic signs and traffic control signals and similar devices, the erection of which is authorized by those regulations.
Section 26 provides:
26. Powers in respect of secondary roads
The Minister, the Commissioner, and the officers acting under this Act shall have the same powers with regard to secondary roads as are by this Act conferred on them regarding highways and main roads, and the provisions of this Act regarding highways and main roads, shall, as far as practicable, apply mutatis mutandis to secondary roads.
The effect of these provisions of the Main Roads Act is that the Commissioner of Main Roads (the Commissioner) has the same powers under reg 297(1) in relation to speed limit signs on secondary roads as it does on main roads. In the course of the appeal, counsel for the driver conceded that this was so (ts 23, 29).
In my opinion, the effect of reg 295 and reg 297 of the Traffic Code can be summarised as follows. The Commissioner has power to erect, take down (and so on) road signs, including speed limit signs: reg 297(1). Another body can erect or take down road signs, including speed limit signs, if and to the extent and in the circumstances specified in a written authorisation made by the Commissioner: reg 297(2), read with reg 295.
Any written authorisation under reg 297(2) must be an authorisation of a body. The scope of the authorisation is as specified in the instrument of authorisation. It is not necessary that there be authorisation of particular signs at particular locations. That was accepted by counsel for the driver in the course of the hearing of the appeal.
On appeal, counsel for the driver submitted (ts 27 ‑ 30) that reg 295 requires that the Commissioner must authorise the erection of a road sign in writing, even if the Commissioner is the party erecting the sign. I do not accept that submission. Regulation 297(1) empowers the Commissioner to erect road signs. Regulation 295 has no relevant to the power conferred by reg 297(1). There is no reference in reg 297(1) to anything that is 'authorised', so that reg 295 is not engaged.
Thus if a road sign is erected by the Commissioner, a search for a written authorisation is based on the unsafe assumption that a written authorisation is necessary and so must be required to exist.
As will appear, it seems to me that the submissions on behalf of the driver at the trial and on appeal did not reflect the proper construction of the statutory framework.

Overview of the trial

The prosecution notice was lodged at the Magistrates Court on 20 May 2009. It was returnable on 12 August 2009. On that date, counsel for the driver appeared and entered a plea of not guilty. The matter was listed for trial on 20 October 2009.
On 20 October 2009, before any evidence was called, counsel for the driver applied to adjourn the trial. The refusal of that application is the subject of ground 1 of the appeal. I will refer in detail to this first adjournment application in the course of considering ground 1.
The prosecution then led the evidence in support of its case. The prosecutor called two witnesses, both of whom were police officers. The effect of their evidence may be broadly summarised as follows:
(a)they were on duty in a vehicle on 22 October 2008 in the Mandurah area;
(b)at about 1.28 pm they were on patrol on Lakes Road in a part of the road between two sets of 60 km per hour signs;
(c)they observed the driver coming towards them;
(d)one of them, Senior Constable Crock, estimated the driver, estimated the driver's initial speed to be in excess of 90 km per hour;
(e)Senior Constable Crock activated the mobile radar and observed a speed reading of 96 km per hour displayed on the screen;
(f)Senior Constable Crock then observed the vehicle rapidly slow down;
(e)when Senior Constable Crock locked the radar on, the driver was halfway between the two sets of 60 km per hour signs and a speed of 88 km per hour was recorded.
At the commencement of Senior Constable Crock's evidence he described his experience in operating various types of speed measuring equipment, including the Decatur Genesis II mobile radar (the device used in this case), for some 6 1/2 years. The prosecutor asked him to look at a certificate that related to his qualifications in operating speed measuring equipment. At that point the magistrate asked counsel for the driver whether this was in issue. Counsel stated that it was not (ts 10). The magistrate asked counsel whether it was accepted that the radar device is an approved speed measuring device. Counsel stated that that was accepted (ts 11). That concession is the subject of ground 3.
Senior Constable Crock said that the area they were patrolling along Lakes Road had been a 60 km per hour speed zone since the commencement of roadworks in that area, approximately six months prior to the incident (ts 12, 21). His evidence was that the driver was between two sets of 60 km per hour signs (and thus in a 60 km per hour zone) when he locked the radar on.
It was put to both prosecution witnesses that the driver had been between the 60 km per hour and the 80 km per hour signs (and thus in an 80 km per hour zone) when the speed had been recorded. Each rejected that proposition (ts 22 and 45).
At the conclusion of the prosecution case, counsel for the driver sought to tender the documents produced on summons by the Main Roads Department (MRD). In response to an inquiry from the court as to the basis for the tender, counsel submitted that the documents showed a traffic management plan (the TMP) identifying temporary speed zones without any authorisation in relation to that TMP (ts 47).
The court asked the prosecutor what his attitude to the tender was. The prosecutor stated that the documents were only proposed plans of a place not confirmed. The magistrate stated that he had no real idea of precisely what was within the documents apart from what had been said about them, however the series of documents could simply be marked as an exhibit. A bundle of documents obtained under summons became exhibit 6 (ts 48).
Exhibit 6 primarily comprised of the TMP. Counsel for the driver did not rely on anything contained in exhibit 6 in the appeal.
Counsel for the driver then sought to tender an email string between his office and the Shire of Murray (the Shire) dated 19 October 2009, which he understood to be without objection and by consent (ts 49). It became exhibit 7. The prosecutor stated that the document was really not relevant to the argument because it was hearsay. He said he consented it to going in, but did not feel it would be relevant to the case (ts 49). The magistrate asked whether the document was tendered as proof of its truth without calling the author. Counsel advised that that was so. The magistrate asked why the author of the document had not been called. Counsel stated that he had applied to adjourn the case to enable that to occur, but that application had been declined (ts 49).
The magistrate noted that whilst there was no objection to the document, irrespective of whether or not there was an objection he considered it to be inadmissible as hearsay (ts 50). However, he said that so there was no issue about unfairness and given the prosecution did not object to it, he would receive the document as exhibit 7 on the basis that the parties would make submissions and the court would give the document whatever weight he considered to be appropriate (ts 50).
The effect of this evidence and the weight to be given to it are the subject of ground 2.
The string of three emails date 19 October 2007 constituting exhibit 7 commenced with an email from the driver's solicitor to Mr Alan Smith. As counsel for the driver's submissions on appeal relied heavily on exhibit 7, I will set it out in full. Exhibit 7 was as follows.

The driver then gave evidence. In the course of cross‑examination, he said that he was travelling at about 80 km per hour (ts 55).
The thrust of his evidence was that when his speed was locked on the radar he was located in an 80 km per hour zone, rather than a 60 km per hour zone. Ultimately, the learned magistrate determined that factual question adversely to the driver. There is no ground of appeal relating to that factual finding.
At the conclusion of the driver's evidence, counsel made a second application for an adjournment, on the basis that he needed to put direct evidence before the court of matters on which the court had stated would be inadmissible as hearsay (ts 62). The second application for an adjournment is also the subject of ground 1 and I will say more about it in that context.
After refusing the second application for an adjournment, the learned magistrate heard closing submissions.
The two issues at the trial were therefore:
(a)whether the driver's vehicle was in a 60 km per hour speed zone when his speed was locked on the radar;
(b)whether the signs displaying the 60 km per hour limit were properly authorised under reg 297 of the Traffic Code.
The first of these is not an issue in the appeal.

The magistrate's reasons

The magistrate identified that there were two issues, as summarised above.
The magistrate referred to reg 300 of the Traffic Code as placing an evidentiary onus on the accused. The magistrate referred to the submission that the documents produced under the subpoena and the email string (exhibits 6 and 7) met the evidentiary onus. The magistrate said that he had gone through the documents tendered, particularly the TMP (exhibit 6). He referred to the declaration associated with the plan, commenting that it was clear from the plan that it contemplated an evolutionary process. The magistrate commented that, as the police had testified and the driver had accepted, the speed zone signs had changed regularly throughout the period of the roadworks in the area (ts 71).
In relation to the first issue, the magistrate accepted the evidence of the police officers that the recording of the driver's speed occurred in a 60 km per hour zone (ts 71 ‑ 73).
The magistrate gave brief reasons in relation to the second issue. They were in the following terms (ts 74):
So having made those findings of fact I then turn to the question of whether or not the prosecution have in a sense negated beyond a reasonable doubt the issues that are raised by the submissions in relation to the authorised body and the application of the provisions of the Road Traffic Code. I've given what weight I believe is appropriate to the documents which have been produced in front of me.
I've clearly ruled that to simply produce these documents is in breach of the rules of evidence. They are hearsay documents, but I've looked at them. I've scanned them and as I've indicated, the roadworks traffic management plan clearly contemplates that there ought be changes as the roadworks evolved.
There is nothing in the evidence in my view which raises any concerns about the application of the provisions of 297 or 300 and the accused is convicted of this offence.

Grounds of appeal

The grounds of appeal were amended at the commencement of the hearing. In their final form they were as follows:
1.The learned magistrate erred in law by failing to properly exercise his discretion according to law in refusing the applicant's application to adjourn the hearing when there was real prejudice to the applicant's defence and the prosecution did not rely on any prejudice to the prosecution if the hearing was adjourned.
2.The learned magistrate erred in law in excluding evidence which was admitted by consent of the parties as to the issue of whether the temporary speed zones setting speed limits of 60 km per hour and 80 km per hour respectively in a zone which was ordinarily 110 km per hour had been properly authorised pursuant to the Traffic Management Plan of Main Roads Western Australia or by the Shire of Murray raising an evidentiary issue such that the prosecution must prove beyond reasonable doubt that the temporary speed zones were duly authorised.
3.Admitting evidence that the mobile radar speed measuring unit Decatur Genesis II was an approved device as at the date of the alleged offence 22 October 2008 when the date of gazettal of the device is 24 December 2008: Government Gazette 6 January 2009 p 21.
I will deal with the application to adduce further evidence in the appeal before turning to the merits of the grounds of appeal.

Application to adduce further evidence on appeal

At the hearing of the appeal counsel for the driver applied for an order admitting further evidence on the appeal under s 40(1)(e) of the Criminal Appeals Act 2004 (WA). This was the evidence of Mr Kerferd, counsel for the driver at the trial.
The discretion under s 40(1)(e) is to be exercised generally in a way consistent with the common law principles, including the distinction between new and fresh evidence on appeal: Rinaldi v The State of Western Australia [2007] WASCA 53 [84]; De La Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [152].
The principles relating to admission of additional evidence on appeal were recently outlined by Owen JA (McLure P and Pullin JA agreeing on this point) in DPJB v The State of Western Australia [2010] WASCA 12 [60] ‑ [66]. In summary:
(a)fresh evidence is evidence that did not exist at the time of the trial or could not then have been discovered with reasonable diligence, evidence that is not fresh is new;
(b)where evidence is fresh, in order to allow the appeal, the court need only be satisfied that in the light of all the admissible evidence there is a significant possibility that the jury, or magistrate, acting reasonably, would have acquitted; and
(c)an increased chance of acquittal is not enough in relation to new evidence. For an appeal to succeed on the basis of new evidence, the new evidence must be strong enough to show that the appellant is innocent or to raise such a doubt that the court concludes the appellant should not have been convicted.

The evidence of Mr Kerferd relates to two issues.
Paragraph 19 of Mr Kerferd's affidavit relates to why at trial he accepted that the radar device was an approved speed measuring device. It is relied on in support of ground 3. In essence, Mr Kerferd said that when he read the witness statements and other material provided to him by way of prosecution disclosure he did not notice that the device had only been approved after the date of the alleged offence. The respondent did not object to the receipt of this material and I am prepared to receive it in the appeal.
The remainder of the affidavit relates to the steps taken by Mr Kerferd, prior to the trial, in investigating the question of whether the 60 km per hour sign was authorised under reg 297. It is relied on in support of ground 1. The affidavit contains a considerable amount of detail, including annexed emails and correspondence, which was not put before the magistrate in support of either the first or the second application for an adjournment.
The basis on which this additional evidence was proposed to be led was not entirely clear to me from the submissions made at the hearing of the appeal. The starting point is that ground 1 of the appeal (as amended at the hearing of the appeal) alleges that the learned magistrate erred in law in refusing the adjournment application. It does not allege that the refusal of the adjournment gave rise to a miscarriage of justice. Whether the magistrate erred in law in refusing the adjournment is, by the nature of the alleged error, to be tested by reference to the material and information put before the magistrate on the adjournment applications. Counsel for the driver accepted this proposition. However, counsel appeared to go on to submit that Mr Kerferd's evidence should be received on the basis that he was 'cut off' by the magistrate and thereby prevented from referring to the material detailed in his later sworn affidavit (ts 4, 6). This submission infers that Mr Kerferd wanted to say all the things in his affidavit but was unable to because he felt constrained. It was not clear if this submission was ultimately maintained. In any event, there is no ground of appeal to that effect. Moreover, Mr Kerferd's affidavit contains no evidence to support such a contention.
Counsel for the driver also submitted that the evidence of Mr Kerferd should be received on the basis that the affidavit 'fleshed out' what had been put before the magistrate (ts 12). I do not accept that that is a proper basis on which to receive the affidavit. Whether the magistrate erred in law, as alleged in ground 1 of the appeal, is to be tested by reference to the material and information put before the magistrate, not by reference to such material as subsequently fleshed out by further evidence.
Counsel for the driver further submitted that the evidence might be received in a way analogous to the receipt of additional material in a sentencing appeal. I do not accept that that analogy is a useful one. As submitted by counsel for the respondent, there is special provision in the Criminal Appeals Act allowing a court hearing an appeal against sentence to take into account any matter relevant to the sentence that occurred between when the lower court dealt with the person and when the appeal was heard: s 41(4)(a).
Counsel for the driver accepted that the proposed additional evidence does not meet the general test required for the receipt of new evidence on an appeal.
For these reasons, I would admit par 19 of the affidavit of Mr Kerferd on the basis that there is no objection from the respondent, and otherwise refuse to admit his affidavit in the appeal.

Ground 1 - Did the magistrate err in his discretionary decision to refuse the adjournment application?

Ground 1: Legal principles

Principles applicable to an appeal from a conviction on the ground of a refusal of an adjournment were outlined by Hasluck J in Pallett v Paul [2007] WASC 290.
To grant or refuse an adjournment is a matter for the discretion of the court to whom the application is made. Where the refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted unless, in turn, this would mean serious injustice to the other party. An appellate court will not interfere with a discretionary order of this sort unless there is strong reason for believing that an injustice has resulted: Bennett v Councillor [2001] WASCA 342 at 22.
In Leary v The Queen [1975] WAR 133 the Full Court observed that it is fundamental to the administration of justice that an accused person must be given full opportunity to present his or her defence and that an adjournment should be granted if it is necessary to enable the accused person properly to present that defence.
However, it was said in that case also, that in considering an application for an adjournment to allow a defence witness to be brought from elsewhere, it is proper to reject such an application if the court reaches the conclusion upon reasonable grounds that such a witness would be unlikely to give evidence tending to exculpate the accused. See also R v McGill [1967] VR 683; R v Jones [1971] VR 72.
In Greer (1992) 62 A Crim R 442 Kirby J observed at 448 that adjournments are not to be granted merely for the asking, still less upon an unreasoned and unjustified demand. In criminal proceedings there is an interest at stake in addition to that of the accused. It is the interest of the community in the prompt disposal of charges of criminal offences, particularly where the accused person is in custody, and especially where the offence is a serious one. It undermines the orderly disposal of the work of the courts when trials, particularly criminal trials, are adjourned unnecessarily [52] ‑ [55].
As Hasluck J explained, the decision to grant or refuse an adjournment is a discretionary decision. The correctness of the trial judge's decision can only be challenged on the usual grounds for interfering with a discretionary decision: Lewis v The State of Western Australia [No 2] [2008] WASCA 155; (2008) 37 WAR 483 [40].
In Lewis [42] the court observed that the statement in The State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, 154 that case management is not of itself a basis upon which to refuse an adjournment if the refusal would cause injustice to the applicant also applies with at least equal force to an application for the adjournment of a criminal trial. What was said in The State of Queensland v JL Holdings about civil cases must be understood in light of the High Court's decision in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 83 ALJR 951. I do not think that this affects the position in relation to criminal proceedings, as I have outlined it above.

Ground 1: The course of the adjournment applications at trial; the first application

At trial, on 20 October 2009, before any evidence was called, counsel for the driver applied for an adjournment. After the close of the defence case a second application was made.
The submissions made at trial in support of the adjournment applications were, with respect, not always easy to follow and, at times, repetitious. I propose to outline in detail the course of the submissions and the exchange between counsel and the bench, in the order in which it occurred.
Counsel for the driver first applied for an adjournment prior to the trial commencing, stating that one of the issues in the trial would be 'the authorisation of the temporary traffic zones' in place at the time of the offence (ts 2). In response to the magistrate asking what he meant, he referred to reg 297 of the Traffic Code. He submitted that that provision granted the Commissioner the authority to 'delegate' the capacity to alter speed zones to authorised bodies, including local shire councils. He said that the road in question had been a 110 km per hour speed zone which had subsequently been changed. Counsel said he understood that the 60 km per hour zone was a temporary zone that had been put in place, but he was 'not quite sure by who and that [was] the issue' (ts 2). He was asked why this gave rise to an application to adjourn. He informed the magistrate that they had subpoenaed records from the MRD and it seemed that the road in question was not a road 'within the purview' of the MRD, which had unfortunately only been established 'late on Friday' (being 16 October 2009). Counsel informed the magistrate that he had then contacted the engineer of the Shire, who had been unable to gather 'the necessary documents'. He said he had also been into the Shire that morning but the documents were not yet available (ts 2).
These submissions invite attention to the following two questions:
(1)what was the basis for the statement that the road was not a road within the purview of MRD, but instead fell within the purview of the Shire?
(2)What were the 'necessary documents' counsel for the driver was seeking to obtain?
No clear answers to these questions emerged in the course of counsel's submissions on the first adjournment application. Counsel's submissions on the second adjournment application, after the evidence, provided more of an answer to these questions. I will come to those submissions later in these reasons.
The magistrate put to counsel that he (counsel) had entered the plea of not guilty on behalf of the accused on 12 August 2009 (ie, more than two months before the trial date). In response, counsel reiterated that he had not discovered that the road was not a 'Main Roads authorised road' until discussions with the Main Roads officer the week preceding the trial. The magistrate put to counsel that there had been adequate time in which to have made all of these inquiries. Counsel responded that:
[W]ith respect, sir, yes, there may have been adequate time but the fact is they hadn't been concluded and we haven't got the information from the Shire of Murray and therefore we're asking for an adjournment because my client will be prejudiced (ts 3).
The magistrate stated in response that 'it's a prejudice which appears to arise out of inactivity rather than anything else'. Counsel said he disagreed with that. The magistrate said that that was the appearance of it. Counsel replied, 'Yes' (ts 4) Counsel did not then attempt to say any more about the progress of the inquiries made and the reasons why the inquiries had not been completed.
Counsel submitted to the magistrate that the basis for the adjournment application was the need to call as a witness the Shire engineer, who was unable to deal with the matter on that day (ts 2, 4).
The prosecutor opposed the adjournment. In response to an enquiry from the magistrate he stated that there were two police witnesses who were going to say that they were monitoring of the speed of vehicles. The magistrate asked as to the method for determining the speed. The prosecutor identified that it was mobile radar. The magistrate said that he assumed (from the earlier discussion) that that was not in issue. Counsel for the driver stated that there was a factual issue as to where the officers were at the time they took the speed check. Counsel did not suggest that there was any issue about the method used for determining the speed (ts 5).
Counsel for the driver submitted that under reg 297 the Commissioner can 'delegate' the power to put signs up, but there had been no disclosure as to the authorisation of any other person to put up the signs (ts 5). Counsel also referred to reg 300 (3) of the Traffic Code which, he said, required a defendant to produce evidence to displace the prima facie position. The magistrate said that he understood that aspect. Counsel stated that that was why the defence needed the Shire to produce the evidence as to whether or not the signs were authorised. Counsel said that if the signs were authorised, that would be the end of the issue. The magistrate responded by saying that that returned attention to the point already discussed, namely that it appeared that there had been more than adequate time to have explored these issues (ts 5).
The magistrate adjourned to consider the application.
His Honour's reasons in refusing the first application for an adjournment were as follows (ts 7 ‑ 9):
HIS HONOUR: Okay. Mr Lyster is charged with speeding. It's alleged that on 22 October 2008, on Lakes Road, he was travelling at a speed of 86 in a 60 zone. The prosecution notice is dated 7 May and the papers that I have in front of me indicate the notice was duly served by the posting of the notice on 18 May 2009. The matter was listed on 12 August 2009 and Mr Kerferd appeared on that day and entered a not guilty plea and the matter was allocated for trial today, 20 October.
An application for an adjournment has been made on the basis that information required by the defence is not available. There are a number of issues that need to be considered and of course the question of whether or not the application for an adjournment is to be granted is - or requires the making of a discretionary judgment. Myer's case indicates that an application for an adjournment should be granted and to refuse the application would be to cause an injustice to the party making the application unless that is affected by the fact that an adjournment would cause prejudice to the other party.
So so far as the prosecution are concerned, their attitude is that the matter should proceed to trial. There are two witnesses present here for the purpose of giving evidence in circumstances where it appears there may be some factual dispute about the position of the police on the day in question but the real issue is the fact that the application for an adjournment is made on the basis that regulation 300 of the Road Traffic Code places an evidentiary onus on the accused to establish certain things. The particular provision is subsection (3) of regulation 300. It provides that:
A traffic sign or traffic control signal marked, erected, established or displayed on or near a road is in the absence of evidence to the contrary presumed to be a traffic sign or traffic control signal, marked, erected, established or displayed under the authority of these regulations.
The application for the adjournment is based upon the proposition that inquiries have been made, but the inquiries have revealed that the information which is necessary to discharge that evidentiary onus is, at this point in time not yet available. Without going into the issues in any great detail, there are definitions of course within the Road Traffic Code that are of relevance.
Authorised body means a government department, government instrumentality, statutory authority, local government or a body authorised by the commissioner of Main Roads for the purposes of regulation 297(2).
That provision provides:
The commissioner of Main Roads may allow an authorised body to erect, establish, display, alter or take down any particular road sign, road marking or traffic control signal or road signs, road markings or traffic control signals of a class or type of class or types and in the circumstances, if any, specified in any instrument of authorisation.
To bring the matter down to laymen's terms, it's said that the normal speed limit, if you could call it that that applies in Lakes Road had been altered because of the undertaking of roadworks associated with the construction of the new highway between Perth and Bunbury. The question as to whether or not the adjournment should be granted, as I said is a discretionary matter.
This is a situation where in my view there has been adequate time to explore the issues that are the subject of the application for an adjournment, because it must have been known at a very early point in the proceedings that rather than a run‑of‑the‑mill speeding offence as so many of these matters are, this was a matter where the accused, Mr Lyster, wished to take issue with the placing of the signs and the authorisation for doing so.
Otherwise, as I say, there's nothing which indicates that this is anything other than a run‑of‑the‑mill speeding allegation. That being the case, in my view it is similar to a situation where if the prosecution came before me today and said, "Look, we're not quite ready, we've discovered there's a bit of a technical hitch", I would without question have said to the prosecution, "You've had plenty of time to get this sorted out, the matter is proceeding to trial", and I have the same view with respect to the matters which have been raised by defence counsel.
The application for an adjournment is refused. The matter is to proceed to trial. So I will stand it down. I've got other matters to deal with, Mr Kerferd.
His Honour correctly stated the relevant principles. He stated that an application for an adjournment raised a matter of discretion, and that an adjournment should be granted if refusal would cause an injustice to the party making the application, unless that is affected by the fact that an adjournment would cause prejudice to the other party.
The magistrate referred to reg 300 of the Traffic Code. He correctly stated that the application was based on the proposition that inquiries had been made but those inquiries had revealed that the information necessary to discharge the evidentiary onus was, at that point, not yet available. He also referred to reg 297. The kernel of his Honour's reason to refuse the adjournment was his conclusion that there had been adequate time to explore the issues that were the subject of the application. He stated that it must have been known at the very early point in the proceedings that the driver wished to take issue with the question of authorisation of the placement of the signs (ts 8). In the reasons, his Honour did not, in terms, direct his attention to the question of whether the refusal of an adjournment would cause injustice to the driver. I will return to this point later.

Ground 1: The course of the adjournment applications at trial; the second adjournment application

After the evidence of the driver, counsel made a second application for an adjournment on the basis that he needed to put direct evidence before the court of the matters on which the court had ruled that hearsay from the Shire would be inadmissible (ts 62). Counsel stated that he sought an adjournment of the matter part‑heard, to enable the Shire to be called to produce evidence as to the authorisation of the traffic signs on the day of the offence (ts 62).
The magistrate asked who counsel suggested had put up the signs. Counsel said they 'would have been' put up by contractors (ts 62 ‑ 63).
The magistrate asked why counsel suggested that the provisions of reg 297 came into play (ts 63). Counsel stated that the TMP that had been tendered (in exhibit 6) indicated that a traffic management plan had been prepared, but did not demonstrate that it had been authorised. Counsel submitted that the TMP had to have been authorised. As I will later explain, I do not accept that submission. Counsel told the magistrate that Main Roads could not have authorised the TMP 'because Lakes Road is not a main road'… 'that power has been delegated on a temporary basis to the Shire of Murray' (ts 63). The magistrate asked where evidence for that proposition was to be found. Counsel stated that he wished to call evidence from somebody at the Shire and that the subject was fundamental to the case which had come up at the last minute (ts 64).
Counsel then stated that Lakes Road was a secondary road, not a main road, which meant that it was under the power and control of the Shire (ts 65). Consequently, counsel submitted that the Shire was required to have authorised the TMP.
As I will explain, in my opinion, neither of these propositions reflects the correct legal position with respect to the issue of authorisation.

The magistrate suggested that any authorisation would not come from the Shire, but rather from the Commissioner (ts 65). That reflects my view of the effect of reg 297(1) and (2). Counsel submitted to the contrary, stating that the Commissioner had delegated his power for secondary roads to the local authorised body so that the matter was 'out of the purview of the Main Roads Department' (ts 65). The court asked what the basis for that proposition was. Counsel stated that it was based on the interpretation of reg 297 of the Traffic Code (ts 66). In my opinion, nothing in reg 297 supports this proposition advanced by counsel at trial.
Counsel stated that he did not know who had put up the signs (ts 66).
His Honour refused the application for an adjournment. He gave the following reasons (ts 68 ‑ 69):
At the commencement of these proceedings I listened to submissions which were made in relation to the adjournment of the proceedings. The application for an adjournment was based upon the proposition that the defence was basically not in a position to call all of the evidence that it required to give rise to a consideration of the provisions of regulations 297 and 300 of the Road Traffic Code.
At the conclusion of the evidence, an application has now been made that the matter should be adjourned on a part‑heard basis so that witness or witnesses can be called to bolster the weights to be attached to the documents which have been produced under subpoena or simply produced from the bar table, so that basically in commonsense terms is what's now being sought. It appears to me that this application is based upon the same grounds as those which underscored the application for an adjournment.
It appears to me, as I've said before that there's been adequate time for the defence to investigate the issues which are at the essence of the defence and it is not an injustice (a) to require the matter to proceed to trial today, or (b) to refuse an application for an adjournment on a part-time basis. I've already commented about the production of the documents and the weight that might be attached to them. I've now listened to submissions about the issues relating to the authorised body and so on, so the application for an adjournment on a part-heard basis is refused.
His Honour characterised the substance of the application as being based on the desire to call witnesses to give direct evidence of the contents of the documents tendered as exhibit 6 and exhibit 7. That seems to me to be a fair summary of the thrust of the application.
In refusing the application for an adjournment the magistrate found that it was not an injustice to require the matter to proceed to trial or to refuse the application for an adjournment on a part‑heard basis. He did not give reasons for that conclusion, although he did refer to having heard submissions about the issues relating to the authorised body and so on.

Ground 1: Did refusal of the adjournment applications result in injustice to the driver?

On the legal principles I have outlined, the question of whether refusal of the adjournment applications would result in injustice to the driver is of central significance both at trial and on the appeal. That question was not at the forefront of the reasons stated by the magistrate in refusing the adjournment applications at trial. His Honour did not expressly mention the question of injustice (apart from in his statement of general principle) in dismissing the first application for an adjournment. In dismissing the second application his Honour found there was an absence of injustice. He did not spell out his reasons for that conclusion. However, it may be that his Honour's reference in his reasons to counsel for the driver's submissions was intended also to refer to the observations made by his Honour in the course of those submissions. Those observations were to the effect that the legal basis underpinning the adjournment application seemed doubtful. As will be explained, that is a view which I share. In any event, it is not necessary to determine whether an insufficiency of focus in the reasons on the question of injustice gives rise to a ground to interfere with, and thus reopen, the discretionary decision whether to grant an adjournment. That is because I am satisfied that there was no injustice to the driver in the refusal of the adjournment application made on his behalf at trial. That is so, in my opinion, given the stated basis and purpose for the adjournment.
On appeal, the driver's submissions on ground 1 emphasised the absence of any substantial prejudice to the prosecution in the grant of an adjournment, especially in the second application after the prosecution case was closed. The significance of the absence of prejudice to the prosecution is heavily influenced by whether the refusal of the adjournment application gave rise to injustice to the driver.
For the reasons that follow, I am not persuaded that the refusal of the application to adjourn gave rise to any injustice to the driver. In summary, that is because:
(a)the evidence sought to be obtained by the adjournment was not directed to anything capable of giving rise to a defence to the charge that the driver faced. In substance, counsel for the driver sought the adjournment in order to prove that the Shire did not authorise the TMP. That would not have been a defence;
(b)secondly, there was nothing in the material before the magistrate, including in the submissions made by counsel at trial, that positively suggested that the sign had been constructed by a body that did not have written authorisation under reg 297(2); and
(c)counsel agreed with the magistrate that there had been adequate time to make all necessary inquiries, albeit that he did not accept that there had been inactivity in pursuing the inquiries.
I turn to the first of these considerations.
As I have attempted to explain, the basis on which the initial adjournment application was sought was, with respect, not entirely clear. The basis for the adjournment application was articulated to a greater extent when it was renewed after the prosecution case had been closed and the driver had given evidence. The thrust of the second adjournment application can be summarised in the following propositions:
(1)it was necessary that the TMP be authorised in order that the sign be validly erected (ts 63, 65);
(2)because Lakes Road was a secondary road, it was under the power and control of the Shire (ts 63, 65) and therefore speed zone signs in that area could not be authorised by Main Roads (ts 63);
(3)accordingly, it was the Shire who must have authorised the TMP in order for the erection of the signs to be valid (ts 63, 65);
(4)the last email in exhibit 7 indicated that the Shire had received a copy of the TMP but had not authorised it (ts 65);
(5)the adjournment was sought to enable the Shire, by its relevant officer, to give direct evidence of what was in exhibit 7 and to deal with the issue of whether the TMP was authorised (ts 62, 66 ‑ 67).
In my opinion, these propositions afforded no basis for an adjournment of the trial.
I do not accept the first proposition. There is no statutory requirement that a traffic management plan be authorised. As I have said, if a road sign is erected by the Commissioner, no written authorisation is required by reg 297(1). See [13] ‑ [16] If a road sign is erected by another body, that body must be authorised in writing to the necessary extent: reg 297(2). Any such authorisation need not authorise a specific sign or a specific traffic management plan.
The second proposition involves an assumption that Lakes Road was a secondary road. It may be inferred that somebody at the MRD said something to this effect to the driver's counsel prior to the trial, as suggested by the driver's counsel on appeal (ts 9). However, there is and was no evidence of any Government Gazette proclaiming Lakes Road to be a secondary road under s 24 of the Main Roads Act. In any event, assuming Lakes Road was a secondary road, that would not deny the power of the Commissioner to erect signs under reg 297(1). See [7] ‑ [12] above.
The third proposition is based on the premises in propositions 1 and 2, each of which I do not accept.
Consequently, the fourth proposition was of no significance.
In that light, in my opinion, nothing would have been achieved by an adjournment for the purposes summarised in proposition 5.
I turn to the question of what was revealed by the material before the magistrate.
It was submitted on behalf of the driver at trial, and on appeal (ts 35), that exhibit 6 did not contain any evidence of the authorisation of the TMP and that that absence of evidence therefore suggested an absence of authorisation of the TMP. I do not accept that submission. Exhibit 6 was produced in response to a summons requiring production of a traffic management plan. The summons did not call for production of any evidence of authorisation. In those circumstances, the absence of evidence of authorisation in exhibit 6 was of no evidentiary significance. Further and in any event, as I have said, proof that the TMP was not authorised would not have precluded a finding of guilt.
The emails constituting exhibit 7 began with a request by the driver's solicitor to the Shire of Murray to 'check [its TMP records] to see when the change of speed zone on a temporary basis was authorised.'
On appeal, counsel for the driver submitted that because the email provided no evidence of authorisation, it therefore constituted some evidence that there was no authorisation by the Shire (ts 26). Further, counsel also submitted that the statement in exhibit 7 that the Shire does not approve traffic management plans suggested that the Shire did not authorise the TMP (ts 33).
The request made by the driver's solicitor in exhibit 7, and counsel for the driver's submissions on appeal, both assume a need for an authorisation to be found in a traffic management plan or in 'TMP records'. As I have said [87], I do not consider that to be a sound assumption in the light of the statutory framework. Further, the request made by the driver's solicitor's email of 16 October 2009 assumed a need for an authorisation of the particular sign. In the light of the statutory framework, that is also not necessarily a sound assumption. See [13] ‑ [16] above.
Moreover, the email of 19 October 2009 in exhibit 7 from Mr Daniels did not give rise to doubt about authority. Rather, it stated that it would be necessary to identify with greater precision the particular location referred to, before further inquiries could be pursued.
In summary, in my opinion, there was no material before the magistrate probative of the question of whether the sign had been constructed by a body that did not have written authorisation under reg 297(2). The summons issued and the other inquiries referred to before the magistrate were not directed to that question. For example, there was no request or summons to the Commissioner, or to the Shire, or any other party for any written authorisation under reg 297(2).
For these reasons, I would dismiss ground 1.

Ground 2: Did the magistrate err in excluding evidence raising an evidentiary issue that the prosecution must prove authorisation of the speed zones?

In substance, ground 2 asserts that in light of exhibits 6 and 7, the magistrate should have found that the prosecution had failed to prove beyond reasonable doubt that the relevant temporary speed zones were duly authorised.
On appeal, counsel for the driver accepted that the effect of reg 300(3) was that the court would presume that the sign was erected validly unless there was evidence to the contrary.
Counsel for the driver relied upon exhibits 6 and 7 as being the evidence to the contrary. In order to determine this ground of appeal, it is not necessary to rely upon or have regard to the hearsay nature of exhibit 6 and exhibit 7. In particular, it is not necessary to determine whether there was any unfairness in the magistrate relying upon the hearsay character of the documents in order to discount the weight of the material. The hearsay character of the documents can, for this purpose, be ignored. That is because, for the reasons I have given in [85] ‑ [97], direct evidence of what was stated in exhibit 6 and exhibit 7 would not have constituted evidence to the contrary.
For these reasons, there is no merit in ground 2.

Ground 3 - Did the magistrate err in admitting evidence that the mobile radar speed measuring unit was an approved device?

Section 98A of the Road Traffic Act1974 (WA) provides relevantly as follows:
Certain measuring equipment
(1)In this section ‑
authorised person means ‑
…
(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;
…
speed measuring equipment means apparatus of a type approved by the Minister pursuant to subsection (2).
(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.
…
(4)In any proceeding such as is mentioned in subsection (3), evidence by an authorised person that apparatus used by him was speed measuring equipment within the meaning of this section is prima facie evidence of that fact.
…
(4b)In any proceeding such as is mentioned in subsection (3) or (3a), a certificate purporting to be signed by the Commissioner of Police certifying that a person named in the certificate is, or was at the material time, a person certified by the Commissioner as being competent to use distance measuring equipment or to use speed measuring equipment 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.
(5)Nothing in this section shall 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 against this or any other Act or the regulations.
On the appeal, counsel for the driver stated that the Government Gazette of 6 January 2009 (pages 20 and 21) showed that the Minister approved the 'Decatur Genesis II' on 24 December 2008. As I have said, that was the device used in this case. Counsel for the driver submitted that because the device was not an approved apparatus as at 22 October 2008 when the offence was committed, the driver was entitled to a verdict of acquittal.
The first hurdle facing counsel for the driver's submission is that the evidence complained of in ground 3 was admitted with the consent of counsel for the driver at trial. Indeed, counsel said, in effect, that it was an admitted fact that the radar device was an approved speed measuring device (ts 11). In those circumstances, the driver faces substantial obstacles in establishing that admitting evidence that the device was an approved device gave rise to a miscarriage of justice. See, for example, DPJB v The State of Western Australia [89]. The starting point is that, in general, a litigant is bound by the conduct of the case by his or her counsel. However, it is not necessary to determine whether that in itself is fatal to this ground, because it fails for other reasons.
The thrust of counsel for the driver's submission on appeal was that an approval by regulation after the date of the offence, but before the trial, does not constitute an approval under s 98A of the Road Traffic Act for the purposes of an offence occurring before the approval. I do not accept that contention.
The rule of construction that a statute or other written law should not be construed as operating retrospectively so as to create or alter existing rights and liabilities applies in relation to substantive rights, but not in relation to statutes that only affect procedure: Rodway v The Queen (1991) 169 CLR 515, 518 ‑ 519; Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [149].
An amendment to practice or procedure, including as to the admissibility of evidence or as to the effect to be given to evidence, does not engage the presumption against retrospectivity. Such a change in the law does not impair any existing right or create any new obligation. While it may govern the way in which the right or obligation is to be enforced or vindicated, that does not bring it within the presumption against retrospectivity: Rodway (521). This is equally true of procedures in criminal trials that provide fundamental protections against wrongful conviction: Rodway (522).
Counsel for the driver submitted on appeal that while the provisions of s 98A(3) are procedural in character, the giving of an approval under s 98A(2) is a matter of substance. I do not accept that submission. The giving of approval by a Minister is an element of the scheme created by s 98A(1), (2) and (3). Those provisions as a whole are, in my opinion, procedural and do not attract any presumption against retrospectivity. To put it another way, speed measuring equipment will be approved, for the purposes of a trial, if approval has been given prior to the trial. It does not matter whether the approval was given after the offence.
Counsel for the driver relied on the decision of Blaxell J in Hands v Baker [2009] WASC 46 in support of the contention that an approval of the Minister is a matter of substance, not procedure. In my opinion, Hands v Baker was not concerned with the substance/procedure distinction and does not assist the driver's argument in this appeal. In Hands v Baker there had been a single ministerial approval given prior to the offence. Subsequent to the approval, different models of speed measuring equipment had been introduced. The question was whether the model used was within the terms of the Minister's approval. The evidence was that the model approved was a significantly different device from the model used [13]. Counsel referred to par 17 of his Honour's reasons, which were in the following terms:
In any event, the terms of the Minister's approval should be strictly construed, given the impact that approved equipment has on the prosecution of a motorist charged with a speeding offence. The apparatus approved by the Minister is a technological means of establishing a prima facie case of guilt. Because it is a machine and not a person, it cannot be cross-examined as to the accuracy of the speed which it records. Accordingly, justice can only prevail if the machine is strictly compliant with the statutory procedure under which it was lawfully approved.
The reasons identified by his Honour seem to me, with respect, to support his view that the terms of an approval should be strictly construed. In short, that is because of the significant forensic and evidentiary consequences of such equipment being within the class of those approved. However, that does not govern the question of whether an approval is a matter of substance or procedure. As was explained by the High Court in Rodway (522), the practical significance of an evidentiary provision does not alter its character as a matter of procedure.

Further, if, contrary to my opinion, the approval of speed measuring equipment is a matter of substance, then in any event, I would dismiss this ground of appeal on the basis that no substantial miscarriage of justice had arisen. Section 98A(5) makes it clear that evidence of radar reading is not the only method by which the driver's speed could be proved. There was sufficient evidence of the driver's speed without the need to rely on data from the radar. I refer in that respect to the evidence of the police officers and, most particularly, to the driver's own evidence as to his speed. His evidence was that he was driving at approximately 80 km per hour (ts 55 ‑ 57).
For these reasons, there is no merit in ground 3.

Conclusion

For the reasons I have given:
(1)I would grant leave to appeal in relation to ground 1 but dismiss the ground; and
(2)I would refuse leave to appeal in relation to grounds 2 and 3.