Maccione v Doughty

Case [2019] WASC 375

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

  1. 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.

  2. 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).

  3. 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…

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Details
AGLC
Maccione v Doughty [2019] WASC 375
Case
[2019] WASC 375
Decision Date

CaseChat Overview and Summary

In the matter of Maccione v Doughty, the respondent, Mr Doughty, was charged with driving at a reckless speed, specifically driving at a speed 45 km per hour or more above the speed limit, in contravention of section 60A(2)(b) of the Road Traffic Act 1974 (WA). The dispute arose from evidence provided by a speed camera operator regarding the speed at which Mr Doughty was driving on Ocean Reef Road, Wanneroo, on the day in question. Mr Doughty conceded that he was the driver of the vehicle in question but contested the accuracy of the speed measurement. The case was heard in the Magistrates Court of Western Australia.

The primary legal issues before the court were whether the authority of the speed camera operator had been sufficiently established, and whether the evidence of the approved speed measuring apparatus, the Vitronic PoliScan Speed M1, was admissible and conclusive. Mr Doughty argued that the prima facie effect of the evidence of the authorised person should be displaced, and that the legal presumption of regularity did not apply. The court needed to determine whether the respondent's onus was discharged in challenging the evidence provided by the speed camera operator.

The court considered the transitional provisions under the Road Traffic (Administration) Act 2008 (WA) s 160(2), which provided for the continuation of certain certificates issued under the Road Traffic Act 1974 (WA) following amendments by the Road Traffic Legislation Amendment Act 2012 (WA). The court held that the evidence provided by the speed camera operator, Mr Jenkins, was admissible and constituted prima facie evidence of the speed of Mr Doughty's vehicle. The court found that the legal presumption of regularity applied, and that the respondent had not discharged his onus of proving that the evidence was incorrect or unreliable. Consequently, the court upheld the charge against Mr Doughty.

The final orders of the court were that Mr Doughty be convicted of driving at a reckless speed, and that he be disqualified from holding or obtaining a driver's licence for a period of time as prescribed by law. Additionally, Mr Doughty was liable to a fine or imprisonment, depending on the circumstances of the offence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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. 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).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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