Maccione v Doughty
[2019] WASC 375
•18 OCTOBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MACCIONE -v- DOUGHTY [2019] WASC 375
CORAM: ACTING JUSTICE STRK
HEARD: 30 NOVEMBER 2018
DELIVERED : 18 OCTOBER 2019
PUBLISHED : 18 OCTOBER 2019
FILE NO/S: SJA 1066 of 2018
BETWEEN: BRENDAN MACCIONE
Appellant
AND
DAVID DOUGHTY
Respondent
ON APPEAL FROM:
For File No: SJA 1066 of 2018
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G A BENN
File Number : JO 6858 of 2017
Catchwords:
Criminal law - Driving offence - Driving at reckless speed - Evidentiary effect of the Road Traffic (Administration) Act 2008 (WA) s 117(4) - Use of speed measuring equipment by an authorised person in relation to a vehicle - Transitional provisions arising from amendments to the Road Traffic Act 1974 (WA) by Road Traffic Legislation Amendment Act 2012 (WA) - Road Traffic (Administration) Act 2008 (WA) s 160(2) - Objection taken that the authority of the speed camera operator had not been proved - Legal presumption of regularity - Objection taken to the prima facie evidence of approved apparatus and to the prima facie evidence of the speed of the vehicle - The prima facie effect of the evidence of an authorised person was not displaced - Respondent's onus not discharged
Legislation:
Criminal Appeals Act 2004 (WA)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic (Administration) Act 2008 Commencement Proclamation 2015
Road Traffic Act 1974 (WA)
Road Traffic Legislation Amendment Act 2012 (WA)
Result:
Leave to appeal granted
Appeal allowed
Representation:
Counsel:
| Appellant | : | C Chapman |
| Respondent | : | C J Baker |
Solicitors:
| Appellant | : | State Solicitor's Office |
| Respondent | : | Chris Baker & Associates |
Case(s) referred to in decision(s):
Bhalsod v Perrie [2018] WASCA 108
David v Armstrong (1993) 17 MVR 190
Hands v Baker [2009] WASC 46
Illich v Woodburn [2004] WASCA 148
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
ACTING JUSTICE STRK:
Introduction
Mr Doughty appeared in Joondalup Magistrates Court charged with driving at reckless speed contrary to the Road Traffic Act 1974 (WA) s 60A(2)(b). It was alleged that on 28 April 2017, Mr Doughty drove a motor vehicle, namely a Ducati motorcycle bearing registration plate 1CV 704, on Ocean Reef Road, Wanneroo, 45 km per hour or more above the speed limit set for that road.
The issue at trial was whether Mr Doughty was driving at the alleged speed of 131 km per hour on a road with an 80 km per hour speed limit. The alleged speed of 131 km per hour was captured by speed camera operated by Mr Jeffrey Jenkins.[1]
[1] ts 3 (3 April 2018).
The Road Traffic (Administration) Act 2008 (WA) s 117(4) provides that in such a proceeding, '... 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'.
At trial, the prosecution sought to avail itself of the prima facie evidentiary effect of s 117(4). However, the learned Magistrate concluded that the prosecution had failed to establish that Mr Jenkins was an 'authorised person', and thus was unable to rely on s 117(4) to secure the prima facie evidentiary effect created by an authorised person using approved equipment.
Mr Doughty was acquitted of the charge and a costs order was made in his favour in the amount of $8,100. The appellant appeals the learned Magistrate's decision.
For the reasons that follow, I find that the learned Magistrate erred in failing to find that Mr Jenkins was an authorised person within the meaning of the Road Traffic (Administration) Act s 117. The decision of the learned Magistrate shall be set aside and judgment of conviction is to be entered in respect of the respondent.
The appeal
The appeal was commenced on 15 May 2018 within time, and accordingly the appellant does not require an extension of time to appeal.[2]
[2] Criminal Appeals Act 2004 (WA) s 10(3).
The appellant contends that the learned Magistrate erred in fact and in law in failing to find that Mr Jenkins was an authorised person within the meaning of the Road Traffic (Administration) Act s 117. The appellant also contends as follows:
(a)The learned Magistrate erred in law in holding that the only relevant certificate was the certificate under section 117 of the Road Traffic (Administration) Act 2008.
(b)The learned Magistrate erred in law in failing to find the certificate under section 98A of the Road Traffic Act 1978 (sic) was prima facie evidence that Jeffery Jenkins was an authorised person within the meaning of s 117 of the Road Traffic (Administration) Act 2008 by operation of s 160(2) of the RoadTraffic (Administration) Act 2008.
(c)The learned Magistrate erred in fact in holding the prosecution had failed to prove that Jeffery Jenkins had been certified as competent by the Commissioner of Police in the use of the VITRONIC PoliScan Speed M1.
Leave to appeal
This is an appeal made under and subject to the Criminal Appeals Act 2004 (WA) pt 2, and the appellant requires leave to appeal.[3]
[3] Criminal Appeals Act s 9(1).
The court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has reasonable prospects of succeeding.[4] That means, the ground must be judged to have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success.[5]
[4] Criminal Appeals Act s 9(2).
[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
If leave to appeal is refused, the appeal is taken to be dismissed.[6] If leave to appeal is granted, the court may dismiss or allow the appeal, and may set aside the sentence imposed, and may substitute a sentence that should have been imposed.[7]
[6] Criminal Appeals Act s 9(3).
[7] Criminal Appeals Act s 14.
On 13 July 2018, her Honour Justice Archer ordered that the application for leave to appeal in this proceeding be heard with the appeal, and it is appropriate that it so proceed.[8]
[8] Samuels v The State of Western Australia [56].
Legislative framework
The Road Traffic (Administration) Act provides, among other things, for the administration and enforcement of the Road Traffic Act.[9]
[9] Road Traffic (Administration) Act, long title.
The Road Traffic (Administration) Act s 117 came into operation on 27 April 2015,[10] and the parts relevant to this appeal are reproduced at sch A to these reasons.
[10] Road Traffic (Administration) Act 2008 Commencement Proclamation 2015 s 2, which provides that the Road Traffic (Administration) Act, other than sections 1 and 2, comes into operation on 27 April 2015: Government Gazette 17 April 2015 p 1371.
By operation of the Road Traffic (Administration) Act s 9(1)(b), the Commissioner of Police may delegate to a police officer of a specified class any power or duty of the Commissioner under another provision of a road law. Any such delegation is required to be in writing and signed by the Commissioner of Police.[11]
[11] Road Traffic (Administration) Act s 9(2).
Prior to 27 April 2015, a similarly worded provision to the Road Traffic (Administration) Act s 117 was contained in the Road Traffic Act s 98A, and a delegation power similarly worded to s 9(1)(b) was contained in Road Traffic Act s 6AA.
In Hands v Baker,[12] Blaxell J explained that the effect of the Road Traffic Act s 98A included the following. First, evidence by an 'authorised person' that the 'speed measuring equipment' used by that person was apparatus of a type approved by the Minister, is prima facie evidence of that fact. Secondly, the speed of a vehicle ascertained by use of that equipment is prima facie evidence of the speed at which the vehicle was moving at the time of capture. Further, Blaxell J observed at [6] that '[once] such evidence has been given, the burden passes to the defendant to displace the prima facie effect of the same. This onus is discharged if there is evidence which establishes on the balance of probabilities, that the speed of the vehicle that the defendant was driving, did not exceed the limit at the relevant time…'[13]
[12] Hands v Baker [2009] WASC 46 [6].
[13] Blaxell J citing David v Armstrong (1993) 17 MVR 190.
Given the similarity of s 117 and s 98A, in considering the effect of Road Traffic (Administration) Act s 117, I adopt the reasoning of Blaxell J in Hands v Baker.
Transitional provisions arising from certain amendments made to the Road Traffic Act by the Road Traffic Legislation Amendment Act 2012 (WA) are contained in the Road Traffic (Administration) Act pt 9 div 1, subdiv 1. The Road Traffic (Administration) Act s 160(2) concerns certificates issued under Road Traffic Act s 98A, and provides as follows:
160. Notices, certificates and delegations as to evidence about measuring equipment
…
(2) A certificate given by the Commissioner of Police or the Commissioner's delegate under the RT Act section 98A(4b) that was in effect immediately before commencement day is, on and from commencement day, to be taken to be a certificate of the Commissioner of Police or the Commissioner's delegate, as is applicable in the case, under section 117(8).
The reference to the 'RT Act' is a reference to the Road Traffic Act as in force immediately before the day on which the Road Traffic Legislation Amendment Act 2012 pt 3 came into operation, that is, 27 April 2015.[14]
[14] See the Road Traffic (Administration) Act s 147; as noted in the appellant's submissions filed on 1 November 2018 par 24.
The trial
Mr Doughty was charged with driving at a reckless speed contrary to the Road Traffic Act s 60A(2)(b). Section 60A(2)(b) provides that a person commits an offence if that person drives a motor vehicle at 45 km per hour or more above the speed limit. A person charged with an offence against the Road Traffic Act s 60A may, instead of being convicted of that offence, be convicted of an offence against s 60(1A) (driving in a reckless manner), s 61 (dangerous driving), or s 62 (careless driving).[15]
[15] Road Traffic Act s 60A(3).
Penalties for an offence against the Road Traffic Act s 60A are prescribed in s 60B. A court convicting a person of an offence under s 60A(2)(b) must order that the person be disqualified for a period of time from holding or obtaining a driver's licence.[16] The period of disqualification is fixed by reference to whether the offence is a first or subsequent offence. A person convicted of an offence under s 60A(2)(b) will also be liable to a fine or imprisonment.[17]
[16] Road Traffic Act s 60B(3).
[17] Road Traffic Act s 60B(2).
Mr Doughty was represented by counsel at trial. It was conceded that Mr Doughty was the driver of the motor vehicle referred to in the prosecution notice (a Ducati motorcycle bearing registration plate 1CV 704) on the day of the alleged offence on Ocean Reef Road, Wanneroo.[18] However, the prosecution was put to proof as to whether Mr Doughty was driving at the alleged speed of 131 km per hour on a road with a speed limit of 80 km per hour.[19]
[18] ts 4 - 5 (3 April 2018).
[19] ts 4 (3 April 2018).
In light of the concession made, Mr Jenkins was the only witness called for the prosecution and gave evidence that he was employed by the Western Australian Police Force as a camera operator; and that the speed camera operated by Mr Jenkins is known a Vitronic PoliScan Speed M1.[20]
[20] ts 6 (3 April 2018); ts 3, 23 (17 April 2018).
Objection was taken to documents sought to be tendered on behalf of the prosecution to establish, with the aid of the Road Traffic (Administration) Act s117(8), that Mr Jenkins was an 'authorised person' for the purpose of s 117(4). The trial was adjourned part heard to allow the prosecution to consider the objection taken on behalf of Mr Doughty and to collate the documents to be relied upon by the prosecution to qualify Mr Jenkins as an 'authorised person'.[21]
Documentary evidence
[21] ts 19 (3 April 2018).
The trial continued on 17 April 2018. Nine documents were tendered on behalf of the prosecution and admitted into evidence, as follows:[22]
[22] At the hearing on 3 April 2019, a video record of interview was also tendered into evidence. It was also identified as Exhibit P1 (Video record of interview): ts 5 (3 April 2018).
Exhibit number
Description
P1
Vitronics certificate
P2
s 98A Certificate
P3
s 117 Certificate
P4
Instrument of delegation dated 2014
P5
Instrument of delegation dated 2015
P6
Bundle of photos
P7
Deployment sheets
P8
Before and after photos
P9
Government gazette
Exhibit P1 was a certificate issued by Vitronics to certify that Mr Jenkins had completed training and was certified as competent in relation to the use of certain speed camera equipment in March 2014. Exhibit P1 was tendered on the basis it was not a certificate for the purpose of the Road Traffic (Administration) Act s 117(8).[23]
[23] ts 4 - 5 (17 April 2018); ts 21 (17 April 2018).
Exhibit P2 (reproduced at sch B to these reasons) was an undated certificate signed by 'S Togher, Inspector Traffic Enforcement Command',
[T]o certify that Jeffrey Jenkins PD88650 has been certified by the Commissioner of Police as a 'Authorised Person' within the meaning of Section 98A Road Traffic Act 1974 and is 'Competent to Use' the VITRONIC PoliScan Speed M1 and VITRONIC PoliScan Speed M1HP.
Exhibit P3 (reproduced at sch C to these reasons) was a certificate signed by 'S Togher, Inspector Traffic Coordination',
[T]o certify that Jeffrey Jenkins PD88650 has been certified by the Commissioner of Police as a 'Authorised Person' within the meaning of Section 117 Road Traffic (Administration) Act 2008 and is 'Competent to Use' the VITRONIC PoliScan Speed M1 and VITRONIC PoliScan Speed M1HP.
As observed on behalf of the appellant, so as to establish that Mr Jenkins was an 'authorised person' for the purpose of the Road Traffic (Administration) Act s 117, the prosecution tendered Exhibit P2 and Exhibit P3.[24]
[24] Appellant’s submissions filed 1 November 2018 pars 49 - 50.
Both the Road Traffic Act s 98A(4b) and the Road Traffic (Administration) Act s 117(8) contemplate that the certificates will be signed by the Commissioner of Police. As neither of the certificates tendered were signed by the Commissioner, it was necessary for the prosecution to establish that Inspector Togher was a delegate of the Commissioner for the purposes of the Road Traffic Act s 98A(4b), and the Road Traffic (Administration) Act s 117(8), respectively. Exhibit P4 and Exhibit P5 were tendered for that purpose.
Exhibit P4 was a delegation by the Commissioner of Police dated 10 February 2014 and made pursuant to the Road Traffic Act s 6AA. It purports to be a delegation of the Commissioner's powers and duties under the Road Traffic Act s 98A to the persons holding from time to time the office of Inspector or above; and Executive Manager of above, within the Traffic Enforcement Command District, WA Police. Exhibit P4 is reproduced at sch D to these reasons.
Exhibit P5 was a delegation by the Commissioner of Police, dated 11 March 2015 and made pursuant to 'the Road Traffic Act (Administration) 2008' (sic) s 9. It purports to be a delegation of the Commissioner's power under s 9 to all persons holding from time to time the position of Inspector or above; and Executive Manager of above, within the Traffic Enforcement Command District in Western Australia Police. Exhibit P5 states that the instrument of delegation was effective from 27 April 2015. Exhibit P5 is reproduced at sch E to these reasons.
Exhibit P9 is a copy of the Road Traffic (Speed Measuring Equipment) Notice 2012. The notice was made by the Minister for Transport under the Road Traffic Act s 98A(2).[25] At par 2, the Minister revoked the previous approval gazetted on p 6295 of the Government Gazette dated 10 December 2010 in relation to apparatuses bearing the name Vitronic PoliScan Speed M1. At par 3, the Minister approved as types of laser apparatus for ascertaining the speed at which a vehicle is moving apparatuses that bear the name VITRONIC PoliScan Speed M1; and apparatuses that bear the name VITRONIC PoliScan Speed M1 HP.
Objection taken in relation to the application of the Road Traffic Act s 98A Certificate
[25] Western Australia, Government Gazette No 105 (22 June 2012) 2808.
The effect of the submissions made on behalf of Mr Doughty at trial was that the certificate purported to be issued to Mr Jenkins certifying him as an authorised person within the meaning of the Road Traffic Act s 98A (Exhibit P2), and the associated delegation (Exhibit P4), had no application to the charge. In summary, objection was taken to the documents by reason of the following:[26]
(a)Exhibit P2 referred to the Road Traffic Act s 98A, and was of no evidentiary value because s 98A had been repealed at the time of the alleged offence;
(b)the delegation was made under the Road Traffic Act s 6AA, a section of the Road Traffic Act which had also been repealed at the time of the alleged offence; and
(c)the delegation was made (relevantly) to Inspectors 'within the Traffic Enforcement Command District, WA Police', whereas Inspector Togher identified himself by a different title, namely 'Inspector Traffic Enforcement Command'.
The learned Magistrate's reasons
[26] As summarised in the appellant's submissions filed 1 November 2018 par 52. See also the respondent's submissions filed 23 November 2018 par 52.
The transcript reveals that the learned Magistrate proceeded on the basis that Exhibit P2 (the s 98A Certificate) was of no evidentiary value because Road Traffic Act s 98A had been repealed at the time of the alleged offence.[27] The court was not taken to (and it appears that counsel at trial were not aware of) the Road Traffic (Administration) Act s 160(2), which concerns certificates issued under the Road Traffic Act s 98A.[28]
[27] ts 34 (17 April 2018).
[28] Appellant's submissions filed 1 November 2018 pars 56 - 58; 63; respondent's submissions filed 23 November 2018 pars 51, 63.
As to the effect of Exhibit P3 (the s 117 Certificate), his Honour concluded as follows:[29]
In respect to this matter, I come back to the original point I was making about the certification and the use of section 117 that enables the establishment of a prima facie case. …. And the problem remains, in my view, that in respect to the only relevant certificate, which is, in fact, on the face of the certificate, undated, regarding section 117 - and that's Exhibit P3 … - it has been signed by S Togher, Inspector, Traffic Coordination.
… the instrument of delegation being exhibit P5 - refers to delegation being able to be made to a person in the following position. And for the purposes of this trial, Inspector or above within the Traffic Enforcement Command District in the WA Police. That instrument of delegation, in my view, having regard to the very significant advantage and impact that flows from the prima facie case in section 117, must be interpreted strictly, and the strict interpretation is that that instrument of delegation is not sufficient in regard to the certificate, P3, that has been presented upon and which the prosecution seek to rely. Having regard to that, therefore, I'm not satisfied that the necessary proof under section 117 that Mr Jenkins is an authorised person has been established. And in the absence of that, which is a fundamental chain in the process of even establishing a prima facie case as to the speed, because if I can't be satisfied that Mr Jenkins is an authorised person - and I can't be because of the problems with that certification, even in the face of Mr Jenkins' other oral evidence - I can't be satisfied that the prosecution have even established a prima facie case. And on that basis, therefore, the prosecution must fail and, therefore, will be a judgment of acquittal.
[29] ts 38 - 39 (17 April 2018). See also ts 8 (17 April 2018).
Counsel for Mr Doughty says that whether Mr Jenkins was an authorised person within the meaning of the Road Traffic (Administration) Act s 117 was not the only issue raised before the learned Magistrate at trial. Counsel for Mr Doughty says that it was also in issue whether the speed measuring equipment used by Mr Jenkins was approved; and whether the equipment captured the speed of Mr Doughty's motor vehicle, or that or a different vehicle.[30] In light of his Honour's finding concerning the application of Exhibit P2 (the s 98A Certificate), and the effect of Exhibit P3 (the s 117 Certificate), these additional issues were not determined by the learned Magistrate.
[30] Respondent's submissions filed 23 November 2018 pars 2, 69 - 82.
Disposition
The effect of the transitional provision
It is common ground that at trial, no submission was made by any party as to the potential effect of the transitional provision contained in the Road Traffic (Administration) Act s 160(2). The learned Magistrate seems, with respect, to have overlooked the significance of the transitional provision, and the Magistrate's reasoning on this aspect reveals an error.
The appellant contends that by operation of the transitional provision, the prosecution was able to rely on Exhibit P2 (the s 98A Certificate) to establish that Mr Jenkins was an authorised person within the meaning of the Road Traffic (Administration) Act s 117, and thereby avail itself of the prima facie evidentiary effect of s 117(4). By this appeal, the appellant does not challenge the finding of the learned Magistrate that Exhibit P3 (the s 117 Certificate), when considered with Exhibit P5 (the instrument of delegation dated 2015), was ineffective in establishing Mr Jenkins as an authorised person.
I accept the appellant's submission that by operation of the transitional provision, Exhibit P2 (the s 98A Certificate) may only be relied upon to establish that Mr Jenkins was an authorised person if it was a certificate given by the Commissioner of Police or the Commissioner's delegate that was in effect immediately before commencement day.[31] Therefore, the first appeal ground requires that I determine whether Exhibit P2 (the s 98A Certificate) was a certificate that was in effect immediately before 27 April 2015.
Did the prosecution establish that Mr Jenkins was an 'authorised person' within the meaning of the Road Traffic (Administration) Act s 117?
[31] Appellant’s submissions filed 1 November 2018 par 28.
The appellant contends that Exhibit P2 (the s 98A Certificate) was a certificate that was in effect immediately before 27 April 2015, and says that the legal presumption of regularity supports such a finding.[32]
[32] ts 5 (30 November 2018).
The respondent complains that no evidence was led as to the date of issue of Exhibit P2 (the s 98A Certificate). The respondent says that is was incumbent upon the prosecution to prove beyond a reasonable doubt that Exhibit P2 (the s 98A Certificate) was valid in all respects, and the standard of proof applicable was proof beyond reasonable doubt.[33]
[33] Respondent’s submissions filed 23 November 2018 par 31.
The following matters particular to Exhibit P2 (the s 98A Certificate) were noted by the appellant and the respondent as requiring particular consideration. First, the s 98A Certificate was undated. Secondly, the effect, if any, of the subsequent delegation made pursuant to the Road Traffic (Administration) Act. Thirdly, the absence of the word 'District' in Inspector Togher's job title.
The legal presumption of regularity
The legal presumption of regularity was considered in Bhalsod v Perrie [2018] WASCA 108, where at [107] – [114], Buss P made the following observations:
In Morris v Kanssen, a case concerned with the purported appointment of a company director, Lord Simonds (Viscount Simon, Lord Thankerton, Lord Porter & Lord Uthwatt agreeing) said:
One of the fundamental maxims of the law is the maxim 'omnia praesumuntur rite esse acta'. It has many applications. … The wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order (475).
In Minister for Natural Resources v New South Wales Aboriginal Land Council, McHugh JA observed that the 'natural home' of the maxim referred to by Lord Simonds in Morris is public law (164). His Honour elaborated:
Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office: M'Gahey v Alston (1836) 2 M & W 206 at 211; 150 ER 731 at 733; R v Brewer (1942) 66 CLR 535 at 548; Hardess v Beaumont [1953] VLR 315 at 318 ‑ 319.
McHugh JA went on to refer to a particular application of the maxim as stated in Broom's Legal Maxims (10th ed, 1939), 642:
… where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution. In these cases the ordinary rule is omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium - everything is presumed to be rightly and duly performed until the contrary is shown (164).
So, it is well established that there is a presumption that acts and duties of a public official, and that acts and duties of an official nature, have been regularly and properly performed.
The presumption applies not only in civil proceedings, but also in criminal cases. See R v Brewer; Cassell v The Queen.
The presumption of regularity is a rebuttable presumption of law. If the basic fact is established then an inference should be drawn as to the existence of the presumed fact unless there is evidence to the contrary. See Director of Public Prosecutions v Sher; Sher v Director of Public Prosecutions.
In Sher, a statutory provision enabled a 'prescribed person' to issue a summons in respect of prescribed summary offences. A 'prescribed person' was defined as a member of the police force who had served for at least two years. The prosecution in question was brought by a police officer who held the rank of senior constable. He described himself in the summons as a 'prescribed person'. Although there was evidence before the court that the informant was a senior constable, there was no evidence that he had served in the police force for at least two years. Defence counsel submitted that it was necessary, as part of the prosecution case, for the informant to prove that he was a 'prescribed person'. The informant did not give evidence to that effect. The issue was not raised with the informant in cross‑examination. Gillard J held that the basic fact established in the case was that the summons had been signed by a member of the police force who held the rank of senior constable and who had asserted in the summons that he was a 'prescribed person' [165]. His Honour concluded, on the basis of the presumption of regularity, that it was legitimate to infer that 'a senior constable would not issue a summons unless he was a prescribed person' [165]. On appeal, the Court of Appeal of Victoria affirmed Gillard J's decision. Brooking, Batt and Buchanan JJA said his Honour's decision was 'manifestly correct on all points' [8].
If an accused does not object that the prosecutor's authority has not been proved, the authority will be presumed in accordance with the presumption of regularity. If the accused does object, the prosecutor must prove his or her authority on the balance of probabilities. See Palos Verdes Estates Pty Ltd v Carbon; Sher [160] ‑ [161] (Gillard J); Sher [8] (Brooking, Batt & Buchanan JJA); AB Oxford Cold Storage Co [26]; Duncan v Demir.
[Footnotes omitted.]
In the present case, the accused had objected that Mr Jenkins' authority had not been proved.
Objection was taken to reliance by the prosecution on Exhibit P2 (the s 98A Certificate), so as to establish Mr Jenkins' authority. Objection was taken on the basis that Exhibit P2 was of no evidentiary value because Road Traffic Act s 98A had been repealed at the time of the alleged offence (that is, without regard to the potential effect of the transitional provision contained in the Road Traffic (Administration) Act s 160(2)). Objection was also taken on the basis of the absence of the word 'District' in Inspector Togher's job title, that is, that the certificate did not comply with the instrument of delegation (Exhibit P3).[34]
[34] ts 11 (17 April 2018). For completeness, it is noted that objection was also taken to reliance by the prosecution on Exhibit P3 (the s 117 Certificate), to establish Mr Jenkins’ authority, consideration of which is outside the scope of this appeal.
For the following reasons, I am satisfied on the balance of probabilities that Mr Jenkins' was an authorised person and Exhibit P2 (the s 98A Certificate) was in effect immediately before 27 April 2015.
The appropriate standard of proof in relation to whether or not Mr Jenkins was an authorised person is the balance of probabilities. Those facts which must be proved beyond a reasonable doubt are limited to the elements of the offence.
While the s 98A Certificate was undated, neither the Road Traffic Act nor the Road Traffic (Administration) Act s 160(3) prescribed that a certificate issued under s 98A be dated.
Mr Jenkins' evidence suggests that he did not appreciate the legal effect of Exhibit P2 (the s 98A Certificate) and Exhibit P3 (the s 117 Certificate).[35] However, at trial, the following facts were established:
(a)Mr Jenkins was employed as a speed camera operator for the WA Police Force.[36]
(b)While Mr Jenkins did not give evidence as to the date on which he commenced his employment, Mr Jenkins completed initial training to operate a speed camera on 14 March 2014 and subsequently received a certificate from Vitrionics (being Exhibit P1).[37] It was Mr Jenkins' evidence that this was his first qualification.
(c)Mr Jenkins was certified as a speed camera operator and received certification, first under the Road Traffic Act s98A, and then under the Road Traffic (Administration) Act s 117.[38]
(d)Exhibit P2 (the s 98A Certificate), referred to the Road Traffic Act s98A because that was the operative Act at the time of Mr Jenkins' initial training; and the Road Traffic (Administration) Act s 117 did not come into operation until after Mr Jenkins had been trained.[39]
(e)Mr Jenkins was required to requalify as being competent to use the speed camera every 12 months from his original training.[40]
(f)Mr Jenkins requalified to operate the Vitronic PoliScan Speed M1 and the Vitronic PoliScan Speed M1HP about every 12 months from his original training, including on 19 May 2016 and 2 May 2017.[41] Mr Jenkin was qualified as at 28 April 2017. (That is, the date of the alleged offence). [42]
[35] ts 4 (17 April 2018).
[36] ts 6 (3 April 2018); ts 3 (17 April 2018). It was not suggested that Mr Jenkins was an authorised person in relation to speed measuring equipment by reason of him being a police officer by operation of the Road Traffic Administration Act s 117(1).
[37] ts 4, 8 (17 April 2018).
[38] ts 3 – 4 (17 April 2018).
[39] ts 22 (17 April 2018).
[40] ts 22, 25 (17 April 2018).
[41] ts 10 (3 April 2018).
[42] ts 23 (17 April 2018).
I am satisfied, on the basis of the facts established, and in the absence of evidence to the contrary, that Exhibit P2 (the s 98A Certificate) was issued prior to 27 April 2015.
There is no evidence that Exhibit P2 (the s 98A Certificate) was expressly revoked before 27 April 2015. Rather, Mr Jenkin's re-qualification every twelve months from his original training, including his requalification in May 2016, supports a finding that on 27 April 2015, Mr Jenkin was certified as an authorised person within the meaning of s 98A. Further, as to the effect, if any, of the subsequent delegation made pursuant to the Road Traffic (Administration) Act, I note that neither the Road Traffic (Administration) Act nor the Road Traffic Act provide that later certification revokes an earlier certification.
As to the absence of the word 'District' in Inspector Togher's job title, I note that only the Commissioner of Police, directly or by the Commissioner's delegate, was empowered to certify Mr Jenkins as an authorised person within the meaning of the Road Traffic Act s98A. In a prosecution such as this, by operation of the Road Traffic (Administration) Act s 117(8) (and previously by operation of the Road Traffic Act s 98A(4b)), the certificate might be relied upon as 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.
Inspector Togher did not give evidence at trial. Evidence was not led to establish that Inspector Togher was a person who, at the time of purporting to certify Mr Jenkins as an authorised person, was a person who held the office of Inspector or above within the Traffic Enforcement Command District, WA Police.
However, the certificate is purported to be signed by the delegate of the Commissioner, and a seal of delegate has been applied below Inspector Togher's signature. It is legitimate to infer that Inspector Togher would not have signed the certificate, and the seal would not have been applied, unless he was a delegate of the Commissioner of Police.
In all of these circumstances, I find that the learned Magistrate erred in holding that the 'only relevant certificate' was Exhibit P4 (the s 117 Certificate). The learned Magistrate further erred in law in holding that Mr Jenkins was not an authorised person within the meaning of the Road Traffic (Administration) Act s 117; and certified as competent by the Commissioner of Police in the use of the Vitronic PoliScan Speed M1.
Was the speed measuring equipment that was used approved for the purposes of the Road Traffic (Administration) Act s 117?
For a prosecution to avail itself of the Road Traffic (Administration) Act s 117(4), the equipment used must be 'speed measuring equipment' as defined in s 117(1), being apparatus of a type approved by the Minister under s 117(2)(a). Approval of speed measuring equipment is done by notice published by the Minister in the Gazette.[43]
[43] Road Traffic (Administration) Act s 117(2)(a).
As observed by Blaxell J in Hands v Baker at [17], 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.
Mr Jenkins gave evidence that the apparatus he set up on Ocean Reef Road, Wanneroo between 4.53 pm and 8.45 pm, and used was the Vitronic Poliscan M1 speed camera, serial number 641585.[44] It was also the evidence of Mr Jenkins that the Vitronic Poliscan speed camera was authorised under the Road Traffic Act and the Gazette as a recognised speed camera.[45]
[44] ts 15 (17 April 2018). Mr Jenkins’ evidence as to timeframe was given by reference to a twenty four hour clock as 16:53 to 20:45.
[45] ts 23 (17 April 2018).
Through Mr Jenkins, Exhibit P9 was tendered. Exhibit P9 is a copy of an extract from the Government Gazette published on 22 June 2012, which included Road Traffic (Speed Measuring Equipment) Notice 2012, by which the Minister, under the Road Traffic Act s 98A(2), approved as apparatus for ascertaining the speed at which a vehicle is moving apparatus that bear the name Vitronic PoliScan Speed M1 and Vitronic PoliScan Speed M1 HP.
By operation of the Road Traffic (Administration) Act s 160(1), a notice published under the Road Traffic Act s 98A(2) that was in effect immediately before the commencement day is, on and from commencement day, to be taken to be a notice published under s 117(2).
The effect of the Road Traffic (Administration) Act s 117 includes that the evidence given by Mr Jenkins, being an authorised person, that the speed measuring equipment used by him was apparatus of a type approved by the Minister, is prima facie evidence of that fact. By reason of the evidence given by Mr Jenkins, this prima facie effect was available to the prosecution.
Prima facie evidence of the speed of the vehicle
Mr Jenkins also gave evidence of the speed of the vehicle described as motorbike registration number 1CV 704 ascertained by use of the equipment was 133 km per hour in an 80 km per hour zone.[46]
[46] ts 16 (17 April 2018).
A further effect of the Road Traffic (Administration) Act s 117 is that the speed of a vehicle ascertained by use of speed measuring equipment is prima facie evidence of the speed at which the vehicle was moving at the time of capture.[47] It was not necessary for Mr Jenkins' evidence to be supported by any evidence as to the accuracy of the machine.[48] Again, by reason of Mr Jenkins' evidence, this prima facie effect was available to the prosecution.
The respondent's position in relation to the prima facie evidence
[47] Applying Hands v Baker [6], which decision was made in the context of the application of the Road Traffic Act s 98A.
[48] David v Armstrong 192.
Once the evidence of Mr Jenkins was given, the burden passed to Mr Doughty to displace the prima facie effect of the same.[49]
[49] Hands v Baker [6], citing Davis v Armstrong.
Mr Doughty contends that whether Mr Jenkins was an authorised person within the meaning of the Road Traffic (Administration) Act s 117 was not the only issue raised before the learned Magistrate at trial. He says that it was also in issue whether the speed measuring equipment used by Mr Jenkins was approved; and whether the equipment captured the speed of Mr Doughty's motor vehicle.[50]
Was the prima facie effect of Mr Jenkins' evidence in relation to the speed measuring equipment displaced?
[50] Respondent's submissions filed 23 November 2018 pars 2, 69 - 82.
The Road Traffic (Administration) Act s 117(9) provides that nothing in s 117 is to be construed as precluding or restricting the introduction of any competent evidence, whether in addition to, or independent of, any evidence for which provision is made by this section, bearing on the question of whether a person was or was not guilty of an offence under a written law.
As to whether the speed measuring equipment used by Mr Jenkins on 28 April 2017 was approved for the purposes of the Road Traffic (Administration) Act s 117, the following submission was made on behalf of Mr Doughty:[51]
[51] Respondent’s submissions filed 23 November 2018 pars 77 – 79.
77. The relevant Gazette Notice was published on 22 June 2012. The Gazette Notice was tendered as Exhibit 9. Page 2808 of the Gazette Notice dated 22 June 2012, under the heading 'Transcript TN401', in paragraph 2, revoked the previous approval gazetted on page 6295 of the Government Gazette dated 10 December 2010 in relation to apparatuses bearing the name 'Vitronic Poliscan Speed M1'.
78. In paragraph 3, the Gazette Notice reads:
'approval of laser apparatus for ascertaining speed. I approve as types of laser apparatus for ascertaining the speed for which a vehicle is moving:
(a) Apparatuses that bear the name Victronic Poliscan Speed M1 …
Troy Buswell, Minister for Transport.'
79. It is submitted that the said Gazette Notice quite clearly revoked a previous approval gazetted on 10 December 2010, in respect of the speed measuring equipment then described as a 'Victronic Poliscan Speed M1', and replaced that description of equipment with another apparatus bearing the same name, namely 'Victronic Poliscan Speed M1'. There is an inference that the Victronic Poliscan Speed M1 referred to in the Gazette Notice dated 10 December 2018 was an earlier model or version of the said Victronic Poliscan Speed M1 referred to in the Government Gazette dated 22 June 2012.
After referring to the decision of Blaxell J in Hands v Baker at [14] ‑ [16], counsel for Mr Doughty summarised the evidence of Mr Jenkins and made the following submission:
81. Mr Jenkins gave evidence that every time a new version of the speed measuring equipment was created or updated, and every time a new version of the software was upgraded / updated, he had to retrain. Exhibit P.2 was Mr Jenkin's section 98A Certificate. On the rear of that certificate it noted that Mr Jenkins did re-training as follows: 'Poliscan Speed M1 – M1HB – Operator requalification – 23 May 2015 and June 2016'.
82.Exhibit P.3 was Mr Jenkin's section 117 Certificate. On the rear of that certification it said as follows: “Poliscan Speed M1 / M1HP Operator Requalification – pass May 2016, 19 May 2016 and 2 May 2017 (Note: the offence date alleged was 28 April 2017).
That is, the respondent says that it is established by Mr Jenkins that he was required to re‑train when different models of speed measuring equipment were introduced, and Mr Jenkins re‑trained on a number of occasions between his initial training and certification, and 28 April 2017.
In this context, the following submission is made:[52]
Using the same rationale in Hands v Baker, in my submission, there is a doubt as to whether or not that particular version/model, which we know has – was changed on four occasions – Mr Jenkins adopted the words 'version' and 'model' – four occasions when he was first trained (indistinct) how do we know – or has the prosecution satisfied the trial magistrate beyond a reasonable doubt that that particular version or model that was used on the day was approved as per the original gazette notice? …
[52] ts 29 (30 November 2018).
According to the transcript, Mr Jenkins' evidence during cross‑examination in relation to requalification was as follows:[53]
[53] ts 25 (17 April 2018).
HORTON, MR: Yes. Thank you. Now, earlier in evidence you tendered in evidence - or as my friend tendered evidence through you, some certificates that you were awarded by Vitronic in relation operator training that you did in relation to this speed camera. Correct? ---- Yes.
Correct. Okay. And the date of the training according to the certificate that was tendered was 14 March 2014. Do you recall that? --- Yes.
Yes. Okay. And, of course, two other documents have been tendered. One being a document purporting to be a section 98A Road Traffic Act certificate?---Yes.
And the second purporting to be a section 107 Road Traffic Administration Act certificate.
HIS HONOUR: 117.
BAKER, MR: 117. Yes. I apologise. Did I say 70? apologise, sir.
HIS HONOUR: I think you said 107 or 106.
HORTON, MR: 117 certificate.
HIS HONOUR: I might have misheard.
HORTON, MR: Apologise, sir. All right then. Now, when you use the term requal in your evidence? - - - Requalification.
You have several requals. Correct? You put it as requals? ---well, they're requalifications that you do every 12 months.
Every 12 months? --- From the original training.
And also as different versions of the model come out you would have to do requals on them too. Correct?---Yes.
Yes. Of course?---Yes.
Of course. Okay. So the thing that you used as and when different versions of it were manufactured and used by the police service you would have to go back and do an electronic course for the - for the different versions, the newer versions. Correct? ---- Correct.
Update yourself. Correct?----Yes.
Yes. Okay. And also with the different versions there could be different what's known as firmware versions as well for the different versions. Correct?----Correct.
And that firmware version, is that just code for software version? Is that what the firmware means? I'm not sure.
You've terms such as hardware?---Software. Firmware, software. Software versions. Correct?---Correct.
So firmware versions means - it means that. Now, with this particular camera - - -
HIS HONOUR: Sorry. Firmware version means what?
HORTON, MR: I beg your pardon. Firmware versions, in effect, means software versions? --- I would imagine so. Yes.
HIS HONOUR: I don't know that this witness can necessarily answer that question?---Yes.
HORTON, MR: Well, sir, the thing is he said he has training and, of course, he is trained by a trainer of course.
HIS HONOUR: Yes.
HORTON, MR: Therefore what he is saying is, in effect, 'Well, here is what I told go do by a third party.' It's hearsay, etcetera. But he was allowed to give evidence and he has done the training, etcetera. So training certificate was tendered. So I don't think there's any prejudice to the prosecution.
During cross‑examination, Mr Jenkins agreed that as different version of the speed measuring equipment came out, he would have to requalify. Mr Jenkins' evidence was also that he had several re-qualifications and that they were re-qualifications that he did every 12 months. It was not put to Mr Jenkins that any of the re‑qualifications he did follow, or were as a result of the deployment of a different version of the speed measuring equipment.
The prima facie effect of Mr Jenkins' evidence in relation to the speed measuring equipment has not been displaced by the inference that the respondent contends ought to be drawn from the evidence.
Was the prima facie effect of Mr Jenkins' evidence in relation to the speed of the vehicle displaced?
As to the prima facie evidence of the speed of the vehicle, the respondent's onus is discharged if there is evidence which establishes on the balance of probabilities, that the speed of the vehicle did not exceed the speed limit at the relevant time. [54]
[54] Hands v Baker [6], citing Davis v Armstrong. See also Illich v Woodburn [2004] WASCA 148 [19].
As explained in Davis v Armstrong at 192, in the context of the former Road Traffic Act s 98A(3), if the prima facie evidence
…remained unchallenged, at the end of the day it became evidence capable of establishing the speed of the applicant's vehicle beyond a reasonable doubt and that would be the inevitable conclusion in those circumstances.
The burden then fell upon the applicant to adduce evidence capable of displacing the prima facie effect of the prosecution evidence: Madgen v Ashe (1992) 17 MVR 218. In other words the onus was thrown upon the applicant to prove on the balance of probabilities that his speed did not exceed the limit at the relevant time. He could do that by displacing the prima facie evidentiary effect of the speed measuring device by throwing doubt on its accuracy by establishing that it had not been properly tested, or that the circumstances were such that it might not have operated accurately exclusively with respect to the applicant's vehicle, or he could seek to displace the prima facie evidentiary effect of the speed measuring equipment by persuading the court of trial to accept evidence, either his evidence or that of other witnesses, to the effect that he was not exceeding the speed limit: Cazzol v Fuss (1988) 6 MVR 350.
At the hearing before the learned Magistrate, counsel for the respondent sought to throw doubt on the accuracy of the speed measuring equipment by suggesting that the speed measuring equipment used by Mr Jenkins actually conducted a speed check of a vehicle described as a Mitsubishi dual cab ute, travelling to the left of the respondent's motorcycle, which vehicle can been seen in some of the photographs taken automatically by the speed measuring equipment within the bundle of photographs that comprise Exhibit P6.
According to the transcript, the Mr Jenkins explained that a speeding vehicle is captured by the speed measuring equipment in a photograph, identified by a 'template'.[55]
[55] ts 17, 27 (17 April 2018).
According to the transcript, during examination in chief and cross-examination, Mr Jenkins was taken to a document from Exhibit P6 which had a photograph on the right hand side of the document, and text on the left. While each document within Exhibit P9 was not separately identified or numbered, it is clear from a careful review of the transcript and Exhibit P6 that Mr Jenkins had been taken to the second photograph in Exhibit P6.
Mr Jenkins' evidence when asked how he knew which of the two vehicles visible in the photograph was speeding, was as follows:[56]
Well, because the template is on the actual motorcycle and not on the - on the other vehicle, that - that, to me, and with my training and - tells me that that is the speeding vehicle and that the - the template size and being on that vehicle in that lane also supports that.
[56] ts 17 (17 April 2018).
Mr Jenkins' evidence during cross-examination in relation to the second photograph in Exhibit P6 was as follows.[57]
[57] ts 27 - 31 (17 April 2018).
…The photograph is a photograph of two vehicles in the same photograph. Correct?---Correct.
That's correct. And there is a thing called a - just bear with me - I'm just after the term that's used from the manual. I will just be a moment. And in that particular photograph you will see there's a thin template? Template.
- - - frame. Right. Correct?---Correct.
And at - at the bottom of the frame - perhaps - can you see this footage, because if not, I can arrange for the tendered copy to be handed to you? --- I can - it's vague (indistinct).
Vaguely, you can see that. It shows the bottom of the template frame under the wheel of a bike -- ? --- Yes. That's correct.
- - - the motorbike. Correct? And it shows the top of a template frame roughly one-third of the way up the numberplate, without showing the numberplate. Correct? --- I can't see that from here.
Perhaps I will hand it to you, just (indistinct)?---Yes, it - the top of the template is actually on the numberplate, and - - -
Yes?---Yes, as you say, it's down on the road which complies with the criteria for - for that - in our training ---
All right? --- - - - it says basically that the template has to be touching the road on a wheel and/or numberplate. So in this case, that's correct, that photo was valid.
Yes, and that - that's a photograph, though - sorry, at the top of the template - if the witness can please be given that photograph - the top of the template box - the top of the template box does not include the whole of the numberplate - the rear numberplate of the motorcycle. It only includes the bottom part. Correct? --- I don't understand the question. It's - the template can be – you were saying it blocks the numberplate. Well, yes, it does, in there, but for evaluation purposes, the template can be removed, which would clearly show the - the licence plate.
Yes. But I'm asking you about the actual template, the actual box, that thin box - - ? - Yes.
- - - that - start - the bottom of the box is under the wheel - the rear wheel of the motorcycle - - - - --- Correct.
- - - and the top of the template box is - only goes halfway up the rear numberplate of the motorcycle. It's up ? - In this photo, yes. That's correct.
And that was - that was that's a true copy originally tendered in evidence?---Yes.
Would you like to conduct ?-- Yes.
- - - a comparative analysis or do you accept what I'm saying?---Yes.
Okay. Just bear with me. If I could have that again. And, of course, in relation to this photo, there's some words on the right - sorry, on the left side of the photograph?---Yes.
I would ask the witness be shown that particular photograph because the print is very small. Otherwise I will be forever handing this - this copy to - and taking it back again? You have a copy, do you? Yes. Good. All right.
Do you have it there?---Yes.
And on the left-hand column, you will see the two columns to the left of the photograph: one is - one has words in light font, and there's a second column which has words in - in capital letters and larger font in white. Correct?---Yes.
Okay. Now, this particular - this particular screenshot, so to speak, that you downloaded from this camera, this particular screenshot relates to the photograph - depicts - to the right of the screenshot?---That's correct.
Correct. And it shows that in this particular case - or it alleges, at least, that - it alleges the speed of the – the vehicle being photographed by the camera. Is that correct?---That's right.
And it described the class - the vehicle class for the vehicle, photographed within the template, to be a car. Correct? --- No.
Well ?---Yes and no. It actually doesn't have a class or - in - in - in the case information, it doesn't have one for motorbike. So in that case - so, yes, it's - - -
You say that - well, are you saying the only class it has for a vehicle is a car? No class for truck, moped, motorcycle, gofer, tripod - cars only? I put it to you that's not the case. I put it to you that the --- Yes, but I'm not the author of the software, so
Well -? - - ---- - - - you know, I really don't know how I can answer this question.
So you're saying if - if - let's assume there was no other vehicle in there - in this picture, just this motorbike you can see - just pretend the Mitsubishi dual cab ute wasn't depicted in this picture at all; it was just a picture of the rear of a motorbike, the computer - the infallible camera, so to speak, would describe the vehicle class as being a car?----Possibly. I - again, I can't answer that question - - -
Well, I - well, I put it to you that's not the case? because I'm - I'm not the author of the software. I don't know what it would say.
Well, you would - you would agree, wouldn't you, that the particular motorbike depicted in this photograph is not a car. Correct?----Correct. But it's a - - -
And you would agree that the vehicle depicted to the left of the motorbike is, in fact, a car?---Yes.
Okay. But you're saying that, notwithstanding what the infallible computer has told you in this screenshot, that, nonetheless, that the photograph of the bike was in fact a photograph of a car. Correct?---Well, it says it's a car. So - - -
Well - well, I don't - well, it's not a car, though, is it? --- I can't say it says something different, but it's not, obviously.
Well, see, I put it to you, you would agree, wouldn't you, that it's it is possible that the infallible computer mucked up ---Well, I'm not saying it's infallible
- - - and did a check - check speed ?- - - - --- or not, because I'm not an expert - - -
All right. I will withdraw the word 'infallible'?- - - in the - in the operation or the software of the camera.
I put it to you - I put it to you that this - this camera thing you use - this camera equipment - I put it to you this camera equipment may have actually done a speed check of the car not the motorbike?---No, because the template is - of the speeding vehicle, is on the - on the motorbike.
Yes, but the - in the - that's the template, but in terms of the picture depicted - in terms of the picture depicted in this (indistinct) that I have - that you have - it shows two vehicles, one being a car, the other being a motorbike?----That's true, but I've - in all my years of being a camera operator, I've never, ever seen a photo of a vehicle with a template on it that hasn't been speeding.
Or you've never seen a picture of a motorbike with a template on it that's called a car. Correct? --- I can't answer that because I've never really questioned that - - -
You've never questioned the - you just assume it's correct. Correct? --- I assume so, but again, I say to you too, that I'm not an expert in the - - -
No, I - I know that - I accept that - - - -------so -and so, yes - - -
- - - and I'm not being critical of you. It's just that -- but you would have to ask the software creator, I suppose - - -
All right?--- - - - to answer that one.
But you can't answer because you have a doubt as to what the correct answer is. Correct?---Not a doubt. I'm just - don't - - -
You don't know?--- - - - know how to answer the question.
Well - - - - --- And don't think I have the technical knowledge to answer it.
During cross‑examination, Mr Jenkins agreed that:
(a)in addition to the motorcycle, another vehicle can be seen in the photograph;[58]
(b)visible on the photograph was a 'template' positioned at the rear of the motorcycle, which extended from the road beneath the rear wheel at the bottom of the template, to the numberplate of the motorcycle at the top;
(c)the text in white font on the left of the page related to the photograph, and included the alleged speed of the vehicle photographed; and[59]
(d)the text included a description of 'vehicle class' for the vehicle photographed within the template, being 'car', but Mr Jenkins could not explain the use of the term 'car', rather than 'motorcycle', as he did not have the expertise to do so.
[58] ts 26 (17 April 2018).
[59] ts 28 (17 April 2018).
Mr Jenkins' evidence was also that he did not accept that camera had actually recorded the speed of the car in the photograph and not the motorcycle by reason of the template being positioned over the motorcycle;[60] and in his experience as a camera operator, he had not seen a photo of a vehicle with a template over it that had not been speeding.
[60] ts 30 (17 April 2018).
In this case, the respondent sought to challenge the prima facie evidence of the speed of the motorcycle. I accept that evidence capable of displacing the prima facie evidence provided by speed measuring equipment may include evidence that creates doubt that the equipment used had not operated accurately, so as to exclusively record the speed of the respondent's motorcycle.[61]
[61] David v Armstrong, 193.
In this case, the challenge was grounded the second photograph in Exhibit P6 and in particular, the description of 'vehicle class' of the vehicle photographed being 'car', and the inability of Mr Jenkins to explain the use of that terminology as he did not have the expertise to do so. No evidence was called on behalf of the respondent to otherwise challenge the prima facie evidence of the speed of the vehicle.
Having given careful consideration to the evidence before the learned Magistrate, the respondent's challenge to the prima facie evidence provided by the speed measuring equipment was not capable of meeting the respondent's onus. Insufficient doubt was cast upon the accuracy or the operation of the machine to displace the prima facie evidence of the speed of the vehicle.
Conclusion
The learned Magistrate erred in failing to find that Mr Jenkins was an authorised person within the meaning of the Road Traffic (Administration) Act s 117.
The error of law enlivens the court's discretion to intervene and substitute a decision that should have been made by the court of summary jurisdiction.[62]
[62] Criminal Appeals Act s 14(1)(d).
I note that Mr Jenkins gave evidence that the apparatus he set up on Ocean Reef Road, Wanneroo on 28 April 2017 and used was the Victronic Poliscan M1 speed camera, which camera was authorised under the Road Traffic Act and the Gazette as a recognised speed camera.[63] The evidence given by Mr Jenkins, an authorised person, that the speed measuring equipment used by him was apparatus of a type approved by the Minister, was prima facie evidence of that fact.
[63] ts 23 (17 April 2018).
Further, Mr Jenkins gave evidence that the speed of the vehicle described as motorcycle registration number 1CV 704 ascertained by use of the equipment was 133 km per hour in a 80 km per hour zone.[64] The evidence given by Mr Jenkins, an authorised person, of the speed of a vehicle ascertained by use of speed measuring equipment was prima facie evidence of the speed at which the vehicle was moving at the time of capture.
[64] ts 16 (17 April 2018).
The burden passed to Mr Doughty to displace the prima facie effect of Mr Jenkins' evidence. For the reasons explained above, the prima facie effect of Mr Jenkins' evidence was not displaced. Mr Jenkins' evidence, not successfully challenged, was capable of establishing and did establish, the speed of Mr Doughty's vehicle beyond a reasonable doubt.
Orders
For these reasons, I propose to hear from the parties as to the appropriate penalty and otherwise make orders in the following terms:
1)Leave to appeal is granted.
2)The appeal is allowed.
3)The decision of the learned Magistrate be set aside and a judgment of conviction is entered in respect of the respondent.
4)The costs order of the learned Magistrate be set aside and the respondent is to pay the appellant's costs of the appeal and of the proceeding in the Magistrate's court.
SCHEDULE A: Road Traffic (Administration) Act s 117
117. Certain measuring equipment
(1) In this section and section 117A -
…
authorised person -
…
(b) in relation to speed measuring equipment, means -
(i) a police officer; or
(ii) a person certified by the Commissioner of Police as being competent to use the equipment;
and
(c) in relation to speed measuring and recording equipment, means -
(i) a police officer; or
(ii) a person certified by the Commissioner of Police as being competent to install, set up, test or retrieve data from, the equipment or produce images from the data;
…
speed measuring and recording equipment means apparatus of a type approved by the Minister under subsection (2)(c);
speed measuring equipment means apparatus of a type approved by the Minister under subsection (2)(a).
(2)The Minister may, from time to time, by notice published in the Gazette, approve of types of apparatus for the purposes of -
(a) ascertaining the speed at which a vehicle is moving; or
(b) ascertaining distances on roads; or
(c)ascertaining the speed at which a vehicle is moving, recording an image of the vehicle and recording –
(i)the speed at which the vehicle was moving; and
(ii)the date on which the image was recorded; and
(iii)the time and location at which the image was recorded; and
(iv)the speed limit applicable at that location at that time.
(3) The Minister may, by notice published in the Gazette, revoke an approval under subsection (2).
(4) In a prosecution for an offence under any written law 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.
…
(6)In a prosecution for an offence under a written law evidence may be given of –
(a)the use of speed measuring and recording equipment at a particular location; and
(b)the identity of a vehicle as recorded by that equipment at a particular time; and
(c) the speed at which a vehicle was moving as ascertained and recorded by that equipment at that time.
(7A)The evidence referred to in subsection (6) is prima facie evidence of the identity of the vehicle and the speed at which it was moving at that time and location.
(7B)In a prosecution mentioned in subsection (6), evidence of the matters referred to in that subsection may be given in the form of an image of the vehicle on which is recorded the matters referred to in subsection (2)(c), as ascertained and recorded by the speed measuring and recording equipment at the time and location referred to in subsection (6).
(7) In a prosecution mentioned in subsection (4), (5) or (6), evidence by an authorised person that apparatus used by the person was speed measuring equipment, speed measuring and recording equipment or distance measuring equipment is prima facie evidence of that fact.
(8) In a prosecution mentioned in subsection (4), (5) or (6), a certificate purporting to be signed by the Commissioner of Police certifying that a specified person is, or was at the material time, a person certified by the Commissioner as being competent to –
(a)use distance measuring equipment; or
(b)use speed measuring equipment; or
(c) install, set up, test or retrieve data from, speed measuring and recording equipment or produce images from the data,
is prima facie evidence of the matters in the certificate, without proof of the signature of the person purporting to have signed it or proof that the purported signatory was the Commissioner.
(9)Nothing in this section is to be construed as precluding or restricting the introduction of any competent evidence, whether in addition to, or independent of, any evidence for which provision is made by this section, bearing on the question of whether a person was or was not guilty of an offence under a written law.
SCHEDULE B: Exhibit P2 (s 98A Certificate)
SCHEDULE C: Exhibit P3 (s 117 Certificate)
SCHEDULE D: Exhibit P4 (Instrument of delegation dated 2014)
SCHEDULE E: Exhibit P5 (Instrument of delegation dated 2015)
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EP
Associate to Principal Registrar Strk
17 OCTOBER 2019
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