Montalbano v Morris
[2019] WASC 309
•28 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MONTALBANO -v- MORRIS [2019] WASC 309
CORAM: TOTTLE J
HEARD: 24 JULY 2019
DELIVERED : 28 AUGUST 2019
FILE NO/S: SJA 1012 of 2019
BETWEEN: SALVATORE MONTALBANO
Appellant
AND
ANNE MORRIS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE D MACLEAN
File Number : BS 1316 of 2018
Catchwords:
Criminal law - Appeal against conviction - Whether verdict supported by admissible evidence - Where failure to tender correct evidence establishing prima facie case - Application to adduce correct evidence on appeal - Where incorrect evidence not objected to at first instance - Whether admitting evidence on appeal in the interests of justice
Criminal law - Evidence and proof - Judicial notice - Whether judicial notice taken of notices published in Government Gazette - Whether judicial notice taken in the absence of express statutory provision
Legislation:
Criminal Appeals Act 2004 (WA), s 9(1), 14(2), 40(1)(e)
Evidence Act 1906 (WA), s 53
Interpretation Act 1984 (WA), s 3, s 5, s 28, s 46
Road Traffic (Administration) Act 2008 (WA), s 117
Result:
Leave to appeal on ground 1 granted, appeal allowed
Conviction set aside
Leave to appeal dismissed on all other grounds
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr L Geddes |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Basham v City of Joondalup [No 2] [2016] WASC 120; (2016) 258 A Crim R 451
Baskerville v Lippett (1974) 9 SASR 575
Blake v Hatte [1929] St R Qd 271
Blenkinsop v Wilson [2019] WASC 77
Bond v Mastrangelo [2013] WASC 400
Brebner v Bruce [1950] HCA 36; (1950) 82 CLR 161
Breedon v Kongras (1996) 16 WAR 66
Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58
Cramphorn v Bailey [2014] WASCA 60
de La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Donnelly v Richardson [2017] WASC 194
Ex parte Grogan (1906) 23 WN (NSW) 199
Ex parte Madsen; Re Hawes [1960] SR (NSW) 550
Fazio v St John-Ayre [2017] WASC 62
Hands v Baker [2009] WASC 46
Hansford v McMillan [1976] VR 743
Huggins v The State of Western Australia [2018] WASCA 61
Hunt v Bingham [2018] WASC 148
Jenkins v WMC Resources Ltd [1999] WASCA 171; (1999) 21 WAR 393
Juma v The State of Western Australia [2011] WASCA 54
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 92 ALJR 305
Kennett v Holt [1974] VR 644
Kozisek v Australian and New Zealand Banking Group Ltd [2019] WASCA 71
Lee v Irish [1949] VLR 166
Lyster v Kemp [2010] WASC 47
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Marshal v Wettenhall Bros [1914] VLR 266
Norton v The Queen [2001] WASCA 207; (2001) 24 WAR 488
O'Connell v The State of Western Australia [2012] WASCA 96
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Papadopolous v Hunter (1995) 85 A Crim R 572
Pikor v Fletcher [1972] Tas R 91
Piszczyk v Bolton (1984) 38 SASR 330
PMT Partners Pty Ltd (in liq) v Australian National Parks & Wildlife Service [1995] HCA 36; (1995) 184 CLR 301
R v Harm (1975) 13 SASR 84
Radalj v Taylor (1997) 98 A Crim R 170
Rumsley v Taylor (1997) 142 FLR 312
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sankey v Plover [1903] St R Qd 63
Schuett v McKenzie [1968] VR 225
Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66
Sharpe v Wakefield [1891] AC 173
Shaw v McGinty [2006] WASCA 231
Sprlyan v Wyborn [2019] WASC 227
Stavrianakos v The State of Western Australia [2011] WASCA
Tallott v City of Sterling [2017] WASCA 126
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
Todd v Anderson (1912) SC (J) 105
VJS v The State of Western Australia [2017] WASCA 172
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wells v The State of Western Australia [2017] WASCA 27
TOTTLE J:
Introduction
On 9 January 2019 after a trial in the Magistrates Court of Western Australia the appellant was convicted of a speeding charge. The appellant was fined $200 and ordered to pay the respondent's costs. The appellant seeks leave to appeal against the conviction pursuant to div 2 pt 2 of the Criminal Appeals Act 2004 (WA).[1]
[1] Criminal Appeals Act 2004 (WA) s 9(1).
The charge alleged that the appellant drove a motor vehicle within a speed zone, where a speed zone sign was erected indicating a speed of 110 km an hour, at a speed exceeding 110 km an hour (namely 122 km an hour) contrary to r 11(3) of the Road Traffic Code 2000 (WA) (the Code).
The complicating factor in the otherwise commonplace circumstances of this case is that an error was made by the prosecution in adducing evidence before the Magistrates Court. The prosecution failed to adduce evidence of the notice recording that the speed measuring apparatus used to measure the speed of the appellant's vehicle had been approved by the relevant Minister ‑ a notice relating to a different type of speed measuring apparatus was tendered. Commendably this error was discovered and disclosed by those acting on behalf of the respondent in the preparation for the appeal hearing.
The respondent has sought to overcome the difficulty occasioned by the lacuna in the evidence at trial by submitting that:
(a)the notice tendered was ambiguous and can be construed as relating to the speed measuring apparatus that was used;
(b)the magistrate is to be taken as having judicial notice of the correct notice;
(c)the appellant did not object to the tender of the incorrect notice and as a result is prevented from relying on what is a 'technical defect';
(d)even if there was an error, there has been no substantial miscarriage of justice; and
(e)the respondent should be given leave to adduce evidence of the correct notice on appeal.
Factual background
On 17 October 2018 the appellant was driving his vehicle along a stretch of the Vasse Highway that was subject to a speed limit of 110 km/hour. Police officers (Senior Constable Hobson and Sergeant Morris) travelling in the opposite direction used a speed measuring radar apparatus in their vehicle that indicated that the appellant's vehicle was travelling at 122 km/hour. The appellant's vehicle was pulled over. The appellant denied that he was speeding. The police officers did not accept his denial and the respondent issued the appellant with a traffic infringement notice pursuant to s 79 of the Road Traffic (Administration) Act 2008 (WA). The infringement notice displayed a prescribed penalty of $200 and two demerit points.
The speed measuring apparatus used by the police officers was a type known as a Falcon HR apparently manufactured by Kustom Signals Inc.
Proceedings before the magistrate
At the commencement of the trial the appellant made it clear that he required the prosecution to prove all elements of the offence.[2] The critical issue at trial was whether the prosecution could establish beyond reasonable doubt that the appellant was exceeding the speed limit of 110 km/hour. The prosecution's case rested on the police officers' evidence of the reading displayed on the Falcon HR apparatus which it was contended was prima facie evidence of the speed of the appellant's vehicle. This contention was based on the application of s 117(4) of the Road Traffic (Administration) Act to which I refer in more detail below.
[2] ts 5 - 6.
Through the witness Senior Constable Hobson, the prosecutor tendered a copy of a notice published in the Government Gazette of Western Australia, in an attempt to establish that the Falcon HR speed measuring apparatus used by the police officers was approved by the relevant Minister for the purposes of the Road Traffic (Administration) Act. I refer to the forensic context in which the notice was tendered at [60] below. The notice was dated 12 October 2012 and read as follows:
I approve as a type of radar apparatus for ascertaining speed at which a vehicle is moving apparatuses that bear the names 'KUSTOM SIGNALS, INC' and 'Raptor RP-1'.
The appellant did not object to the tender of the extract of the Gazette containing the 12 October 2012 notice.
In support of his case that he was not speeding the appellant gave evidence that he had set the cruise control device in his vehicle to 110 km/hour. The appellant attempted to challenge the reliability of the speed radar apparatus in two ways. First, he argued that there was no evidence that the apparatus had been calibrated and tested in accordance with the National Measurement Act 1960 (Cth) and National Measurement Regulations 1999 (Cth), and he relied upon the decision of Owen J in Breedon v Kongras.[3] Secondly, he attempted (unsuccessfully) to call for the production of the operational manual relating to the apparatus.
[3] Breedon v Kongras (1996) 16 WAR 66.
In the course of the magistrate's ex tempore reasons for convicting the appellant his Honour referred to the prosecution's reliance on the speed reading from the radar device and said:
In this instance the prosecution relied on the two police witnesses, Senior Constable Hobson and Sergeant Morris, together with exhibits which were tendered through those officers, namely, a certificate of competency which records that Senior Constable Hobson is authorised to use a Falcon HR manufactured by Kustom Signals Incorporated, that being the device that recorded, according to Senior Constable Hobson, Mr Montalbano's speed as being 122 kilometres per hour.
In addition, the prosecution relied on a extract from the Government Gazette which records that Kustom Signals Incorporated is an approved type of radar apparatus and the prosecution refers to the provisions of section 117 and says that I can be satisfied and the court finds that the speed that Mr Montalbano was driving that day was, in fact, a speed of 122 kilometres per hour. In addition to that issue of the speed the prosecution are required to prove beyond reasonable doubt that it was, in fact, Mr Montalbano was driving, that he was driving in a speed zone and that the (indistinct) speed zone indicated a speed of 110 kilometres per hour.
And:
I do accept the police officer's as frank and credible witnesses with regard to their experience on that day, namely, that there was the Doppler signal, that they looked to the device in the car, the radar, and that the radar device displayed a speed of 122 kilometres per hour. And I note in making that finding that Sergeant Morris' evidence was not at all challenged by Mr Montalbano and I accept her evidence which was that she also observed the reading as being 122 kilometres per hour.
In addition, I accept Senior Constable Hobson's evidence that he identified the recording as being at 122 kilometres per hour. I also accept the evidence of Senior Constable Hobson that his ordinary practice was to test the speed equipment at the start and conclusion of each day and he did so on this occasion and that on each occasion that the equipment was tested on this day it was accurate. I do accept that he is a competent operator, I accept that the apparatus was an approved type of apparatus, as approved by the Gazette, and I do find as a fact that the speeding took place and that Mr Montalbano did, as a matter of fact, drive a vehicle on a road, it was in a speed zone and the speed zone did indicate a speed of 110 kilometres per hour and the driving at the time was, in fact, 120 kilometres per hour.
Now, Mr Montalbano's evidence that he had set the cruise control for 110 kilometres per hour I reject and, in any event, Mr Montalbano accepted that the control had not been subjected to an independent expert's test and there is no evidence that I accept that works to not (indistinct) in any sense, that works to raise a doubt as to the veracity of the police evidence as to the speed and I accept that. In addition, Mr Montalbano sought to make submissions about the operation of a Commonwealth Act as to measurements, this is not a Commonwealth Act and I'm not satisfied that the National Measurement Act has any application.
Section 117(4) of the Road Traffic (Administration) Act
Section 117(4) of the Road Traffic (Administration) Act provides that:
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.
For the purposes of s 117(4) an authorised person includes a police officer.[4] Speed measuring equipment means an apparatus of a type approved by the Minister under s 117(2)(a).
[4] Road Traffic (Administration) Act 2008 (WA) s 117(1).
Sections 117(2) and (3) relevantly provide as follows:
(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
…
(3)The Minister may, by notice published in the Gazette, revoke an approval under subsection (2).
Respondent's disclosure of error made at trial
On 11 July 2019, the respondent served on the appellant a copy of the respondent's written submissions and a copy of an affidavit affirmed by Mr Brendyn Nelson, an Assistant State Counsel employed by the State Solicitor of Western Australia.
At par 6 of the respondent's written submissions the respondent disclosed that:
…in the course of preparing for the hearing the Respondent became aware that the notice tendered by the prosecutor at trial related to a different type of radar than that used to measure the speed of the Applicant's vehicle.
The Raptor RP-1 apparatus referred to in the notice of 12 October 2012 was not the apparatus used by the police officers in this case. As recorded earlier the police officers used a Falcon HR. The Falcon HR was itself approved by the minister in the Gazette on 22 October 2010. That notice reads:
I approve as a type of apparatus for ascertaining the speed at which a vehicle is moving apparatuses that bear the name Falcon HR (MANUFACTURED BY KUSTOM SIGNALS Inc).
Mr Nelson annexed to his affidavit a copy of the notice published in 2010 approving the Falcon HR. Although no formal admission was made in the respondents' submissions it was acknowledged that:[5]
The tender of the notice is prima facie significant to the presumption found in s 117(4) of the [Road Traffic (Administration) Act]. The presumption is operative upon the proof of, amongst other things, the use of 'speed measuring equipment' approved by the Minister by gazetted notice. It would be open to the Applicant to contend that the prosecutor's failure to tender the correct notice meant that it was not open to the Magistrate to rely on the presumption.
[5] Respondent's Written Submissions, [7].
I accept the contention that, the prosecutor's failure to tender the correct notice meant that it was not open to the magistrate to rely on the presumption, would be correct unless the magistrate is taken to have judicial notice of the notice published in the Gazette in respect of the Falcon HR apparatus.
Grounds of appeal
The appellant's grounds of appeal are discursive and lack precision. I have distilled four issues from the grounds and they are as follows:
(1)Did the magistrate err in finding that the appellant was guilty of the offence beyond reasonable doubt where that finding was unreasonable or not supported by the evidence?
(2)Did the magistrate err in law by not applying the provisions of the National Measurement Act 1960 (Cth) and National Measurement Regulations 1999 (Cth)?
(3)Is s 117 of the Road Traffic (Administration) Act inconsistent with s 10 of the National Measurement Act 1960 (Cth)? If the answer to that question is yes, is s 117 of the Road Traffic (Administration) Act 2008 (WA) invalid pursuant to s 109 of the Constitution?
(4)Did the magistrate deny the appellant procedural fairness in the presentation of his case?
After the respondent had disclosed the error made at trial the appellant filed amended written submissions stating that 'The notice tendered by the respondend [sic] at trial as 'prima facie' evidence relate to a different model of speed detection device used to measure the speed of the appellant's vehicle'. No amendment to the grounds of appeal was made but I will treat the submission as a particular of the first ground of appeal referred to above.
Ground 1: was the magistrate's decision unreasonable or not supported by the evidence?
The principles applicable to whether a verdict of a jury is unreasonable or cannot be supported by the evidence apply by analogy to a trial before a magistrate.[6] This ground is also commonly expressed in terms that the verdict is 'unsafe or unsatisfactory'.[7] The principles governing such a ground of appeal were summarised in Wells v The State of Western Australia.[8] This application does not involve any issue about the scope or applicability of those principles and it is unnecessary to refer to them in detail. For the purposes of s 8 of the Criminal Appeals Act 2004 (WA), an allegation that a verdict of the magistrate is unsafe or unsatisfactory alleges a miscarriage of justice.[9]
[6] The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [44] (Buss JA, McLure P and Mazza J agreeing).
[7] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson and Toohey JJ).
[8] Wells v The State of Western Australia [2017] WASCA 27 [13] (Mazza & Mitchell JJA, Beech J).
[9] Hunt v Bingham [2018] WASC 148 [15] (McGrath J); Donnelly v Richardson [2017] WASC 194 [48] (Fiannaca J).
In essence the appellant asserts that the magistrate could not, on the basis of the evidence, have been satisfied beyond reasonable doubt that the appellant was travelling in excess of 110 km/hour.
The ground gives rise to the five principal issues referred to earlier being:
(a)was there an evidentiary basis for finding that the appellant had been speeding?
(b)did the magistrate have judicial notice of the 22 October 2010 Notice (and all notices under s 117(2) and 160(1) of the Road Traffic (Administration) Act)?
(c)is the appellant prevented because of his conduct of the matter in the Magistrates Court from relying on the absence of evidence that the Falcon HR was an approved speed measuring apparatus?
(d)is this a case in which there has there been no substantial miscarriage of justice, such that the appeal should be dismissed by virtue of the Criminal Appeals Act s 14(2)?
(e)should the respondent be permitted to tender the 22 October 2010 notice at the appellate stage?
Was there an evidentiary basis for finding that the appellant had been speeding?
There was, with respect, a degree of equivocation in the respondent's submissions as to whether the 12 October 2012 notice evidenced by the extract of the Gazette tendered in the course of the trial provided an evidentiary foundation for the magistrate's finding that the appellant had been speeding.
The respondent observed that the 12 October 2012 notice was ambiguous in that it was capable of being interpreted as approving two distinct types of apparatus, a Kustom Signals Inc apparatus and a Raptor RP-1 apparatus. The respondent suggested, reasonably, that the magistrate might have interpreted the notice in that way and added:
Such an interpretation is understandable; the notice is patently ambiguous. However, in light of the principle applied in Hands v Baker, being that because the notice is facilitating an evidentiary presumption it should ordinarily be given narrow interpretation, such an interpretation may not be sustainable. However, the approach by his Honour Justice Beech in Lyster v Kemp may indicate a more lenient approach.
The notice in the Gazette must be strictly construed,[10] that is to say that the notice tendered to the magistrate approving apparatuses that bear the names 'Kustom Signals, Inc' and 'Raptor RP-1' should be construed as approving only apparatuses bearing both those names and not apparatuses bearing only one of the names or any other model manufactured by that company.[11] Such a strict construction is necessary in light of the significant burden which is placed on an accused when they are required to rebut a prima facie case established by the approval.
[10] Hands v Baker [2009] WASC 46 [16] - [17] (Blaxell J).
[11] Hands v Baker [16] - [17].
I do not read the observations of Beech J in Lyster v Kemp,[12] as providing support for a more lenient view. At [111] - [112] his Honour observed:
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. (emphasis supplied)
[12] Lyster v Kemp [2010] WASC 47.
In my view the emphasised portion of Beech J's reasons indicate that his Honour agreed with Blaxell J's reasons in Hands v Baker but did not find that decision helpful in determining whether an approval itself was a procedural or substantive matter.
The magistrate was led into error by the prosecution and it is understandable that the magistrate read the 12 October 2012 notice as an approval of the Falcon HR apparatus. Be that as it may unless the respondent is able to establish that the magistrate is to be taken as having judicial notice of the 22 October 2010 notice by which the minister approved the Falcon HR apparatus, there was no basis upon which the evidentiary presumption in s 117(2) of the Road Traffic (Administration) Act was engaged. Consequently, there was no prima facie evidence that the appellant had been speeding. The respondent did not contend that there was other evidence adduced at the trial that supported the finding that the respondent was speeding. Senior Constable Hobson gave evidence that before activating the Falcon HR apparatus the appellant's vehicle appeared to be travelling in excess of the speed limit. It was not contended by the respondent that this evidence was sufficient to establish the appellant's guilt beyond reasonable doubt, plainly it was not.
Is the magistrate taken to have judicial notice of the 22 October 2010 Notice?
The respondent submits that the magistrate should be taken to have judicial notice of the 22 October 2010 notice by which the minister approved the Falcon HR as an apparatus for ascertaining the speed of vehicles. Where a court is bound to take judicial notice of a matter it is not necessary for that matter to be proved in evidence. The premise on which the respondent's submission is founded is that the notice formed part of the Road Traffic (Administration) Act and as such the magistrate had judicial notice of it by reason of the operation of s 53 of the Evidence Act 1906 (WA).[13]
[13] In oral submissions counsel for the respondent referred to s 28 of the Interpretation Act 1984 (WA) which provides that every Act passed after 13 April 1853 is deemed to be a public Act and is judicially noticed as such. This section does not however add in a material way to the submissions based on s 53 of the Evidence Act 1906 (WA).
Section 53(1) of the Evidence Act provides that:
(1)All courts and all persons acting judicially shall take judicial notice ‑
(a)of the Commonwealth and the States and of every Australasian colony, and the extent of their respective territories; and
(b)of all Acts of the Parliament of the United Kingdom and of the Commonwealth, and of any State, and of any Australasian colony, passed before or after the commencement of this Act.
The respondent contended that the notice constituted part of the Road Traffic (Administration) Act on one or other or both of the following grounds:
(a)s 46 of the Interpretation Act 1984 (WA) operates to expand the reference in s 53(1) of the Evidence Act to 'Acts of Parliament' so that it is taken to incorporate a reference to any subsidiary legislation made under 'Acts of Parliament';
(b)the meaning of 'speed measuring equipment' in s 117(4) is given substance by notices published under s 117(2) of the Road Traffic (Administration) Act - thus the relevant content of the Act is defined by notices published by the minister.
The respondent acknowledged that the weight of authority favours the view that subsidiary legislation, including regulations, proclamations and orders must be proved and tendered in evidence and that the grounds relied upon are 'narrow categories of exception'.
The requirement to prove subsidiary legislation
In Norton v The Queen,[14] Roberts-Smith J (as his Honour then was), with whom Wallwork J and Pidgeon AUJ agreed, stated the position in unequivocal terms - in the absence of a statutory provision directing the taking of judicial notice, judicial notice cannot be taken of delegated legislation and it must be formally proved. In Norton v The Queen an issue had arisen about the status of certain police guidelines known as the 'COPS Manual' as subsidiary legislation. The relevant passages of Roberts-Smith J's judgment were as follows:[15]
A question arose before the learned trial Judge and before us, whether judicial notice may be taken of the Police Guidelines or whether they need to be proved by evidence. Section 36(1) of the Interpretation Act 1918 (WA) gave regulations made by the Governor and published in the 'Government Gazette' the force of law. In Brady v Mazurak (unreported; SCt of WA; Library No 4596; 29 July 1982) Olney J held, by reason of that section, regulations are within the judicial knowledge of the courts without proof.
The Interpretation Act 1918 (WA) was repealed and replaced by the Interpretation Act 1984 (WA) which contains no equivalent provision. The question must therefore be determined on the basis of common law principles.
Pearce and Argument ('Delegated Legislation in Australia') state at [27.3] - [27.4], that (although there are some suggesting the contrary ‑ see Marshall v Wettenhall Brothers [1914] VLR 266; Brebner v Bruce (1950) 82 CLR 161 at 167 per Latham CJ; R v Harm (1975) 13 SASR 84 at 99 per Bray CJ) the authorities establish that in the absence of a statutory provision so directing, judicial notice cannot be taken of delegated legislation and such legislation must be formally proved, citing Ryan v Australian Iron & Steel Ltd (1956) 56 SR (NSW) 329; Long v Darling Island Stevedoring & Lighterage Co Ltd (1956) 56 SR (NSW) 387 and Ex p Madsen; Re Hawes (1960) 60 SR (NSW) 550. I accept that to be the law in this State.
[14] Norton v The Queen [2001] WASCA 207; (2001) 24 WAR 488.
[15] Norton v The Queen [160] - [162].
In Ostrowski v Palmer,[16] four members of the High Court accepted that the law as stated by Roberts-Smith J represented the law in Western Australia. Gleeson CJ and Kirby J observed that:[17]
One of the reasons that has been given for the common law rule that courts do not take judicial notice of regulations, as they do of statutes, and that a party relying on regulations must prove them in evidence, is that, in the past, in England, there was no official publication that would give ready access to the content of regulations of the kind that existed in relation to statutes.[18] For purposes of pleading and evidence, unless the statute pursuant to which regulations were made provided that they were to be taken to be part of the statute, and subject to considerations that might arise out of the way particular litigation was conducted, in civil litigation the making and content of regulations were treated by the common law as facts to be alleged and proved. Proof of the making and the terms of regulations established that they formed part of the law to be applied to the resolution of the case.[19] The same applied in criminal proceedings. Regulations duly made form part of the law but, subject to any statutory provision to the contrary, in legal proceedings their existence and content must be alleged and proved by the party relying on them. This principle has been held to apply in Western Australia.[20] (emphasis supplied)
[16] Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493.
[17] Ostrowski v Palmer [3].
[18] Todd v Anderson (1912) SC (J) 105,108 (Lord Salvesen) cited in Ex parte Madsen; Re Hawes [1960] SR (NSW) 550, 552.
[19] Ex parte Madsen; Re Hawes [1960] SR (NSW) 550.
[20] Norton v The Queen, 520 - 521. See, however, Evidence Act 1995 (Cth) s 5, s 143.
Callinan and Heydon JJ observed that:[21]
The respondent was charged with a breach of reg 34 of the Regulations. The respondent was tried by a magistrate at Carnarvon. In the course of the proceedings the appellant proved the relevant regulation and the table. This was done in accordance with the Western Australian practice, the necessity for which at common law was explained by Roberts-Smith J (Wallwork J and Pidgeon AUJ agreeing) in Norton v The Queen.
[21] Ostrowski v Palmer [70].
The respondent did not challenge the law as stated in Norton v The Queen but argued s 53(1)(b) of the Evidence Act 1906 obliges the courts to take judicial notice not only of Acts but of subsidiary legislation under Acts.[22] It submitted that this is the effect of s 46 of the Interpretation Act 1984 read in conjunction with the definitions of 'written law' and 'subsidiary legislation' in s 5 of the Interpretation Act 1984.
Section 53(1) of the Evidence Act 1906 is not a statutory provision directing courts to take judicial notice of subsidiary legislation
[22] Respondent's written outline of submissions [73].
Section 46 of the Interpretation Act 1984 provides:
46.Reference to written law includes reference to subsidiary legislation made under it
(1)A reference in a written law to a written law shall be construed so as to include a reference to any subsidiary legislation made under that written law.
(1a)An example of the operation of subsection (1) is that a reference in an Act to 'this Act' includes a reference to any subsidiary legislation made under the Act.
(2)A reference in a written law to an Imperial Act or to a Commonwealth Act shall be construed so as to include a reference to any subsidiary legislation made under that Act.
'Subsidiary legislation' and 'written law' are defined in s 5 of the Interpretation Act 1984 as follows:
subsidiary legislation means any proclamation, regulation, rule, local law, by-law, order, notice, rule of court, local or region planning scheme, resolution, or other instrument, made under any written law and having legislative effect;
written law means all Acts for the time being in force and all subsidiary legislation for the time being in force;
(emphasis added)
The effect of s 3 of the Interpretation Act 1984 must also be noted. Relevantly, s 3 provides the Act applies unless 'the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application' or 'express provision is made to the contrary'.
Section 53(1)(b) of the Evidence Act 1906 does not contain a reference to a written law in the sense that that phrase is used in s 46 of the Interpretation Act 1984. It contains a generic reference to 'Acts of the Parliament of the United Kingdom and of the Commonwealth, and of any State, and of any Australasian colony, passed before or after the commencement of this Act'. Further, the language used in s 53(1)(b) discloses an intention that is contrary to the expansive construction of 'Acts of Parliament' contended for by the respondent. Section 53(1)(b) refers to 'Acts of Parliament … passed …'. Acts are 'passed' but subsidiary legislation is not. For these reasons s 46(1) of the Interpretation Act 1984 is not engaged by s 53(1)(b) of the Evidence Act 1906 and does not operate to oblige courts to take judicial notice of subsidiary legislation.[23]
[23] For similar reasons I reject that a reference to 'Every Act passed after 13 April 1853' for the purposes of s 28 of the Interpretation Act 1984 is a reference to a written law. See also Pikor v Fletcher [1972] Tas R 91, 97 (Crawford J), 104 (Neasey J), 109 (Chambers J).
In Pikor v Fletcher,[24] the Full Court of the Supreme Court of Tasmania rejected an argument based on Tasmanian legislation equivalent to the Interpretation Act 1984 and the Evidence Act 1906[25] that was formulated in almost identical terms to the argument raised by the respondent.
[24] Pikor v Fletcher [1972] Tas R 91.
[25] Acts Interpretation Act 1930 (Tas) s 5(2); Evidence Act 1910 (Tas) s 44(1)(b).
There is a further difficulty with the respondent's reliance on s 46 of the Interpretation Act 1984 that I will mention but which I do not need to resolve. The respondent's submissions assume that the notice of 22 October 2010 was subsidiary legislation within the meaning of the s 5 of Interpretation Act 1984. However, to fall within that definition it is not sufficient for the notice to have been made under a written law it must also be a notice 'having legislative effect'. The respondent did not make any submissions on the issue of whether the notice was one that had legislative effect. The distinction between instruments of a legislative character and those of an administrative character is not always easy to draw. Whilst I have not had the benefit of submissions on the point, having regard to the authorities,[26] I cannot say that holding notices published in the Gazette for the purpose of s 117 of the Road Traffic (Administration) Act to be of 'legislative effect' is a foregone conclusion.
The 22 October 2010 notice did not form part of the Road Traffic Administration Act 2008 (WA) for the purposes of judicial notice
[26] Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58, 81 - 83 (Latham CJ); Tallott v City of Sterling [2017] WASCA 126 (Buss P, Murphy & Mitchell JJA); Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66 (Edelman J).
In support of the submission that where the content of the Act is defined by reference to subsidiary legislation, the subsidiary legislation becomes part of the Act the respondent relied upon a line of authority to which Roberts-Smith J referred in Norton v The Queen. The principal cases in this line of authority are: Marshall v Wettenhall,[27] Brebner v Bruce,[28] and R v Harm.[29] It was submitted that these authorities disclose the existence of an exception to the common law position that subsidiary legislation should be proved. In this context it is apposite to make the point that there is no requirement to have recourse to any exception to the common law position where an Act expressly provides that subsidiary legislation made under the Act becomes part of the Act[30] or has legal force as if it were enacted under the Act.[31]
[27] Marshal v Wettenhall Bros [1914] VLR 266.
[28] Brebner v Bruce [1950] HCA 36; (1950) 82 CLR 161. Brebner was however a case falling into the category of cases where the subsidiary legislation expressly became part of the Act.
[29] R v Harm (1975) 13 SASR 84, 99 (Bray CJ).
[30] Pearce and Argument Delegated Legislation in Australia (5th ed, 2017) [27.8].
[31] Pearce and Argument Delegated Legislation in Australia (5th ed, 2017) [27.9].
Marshall v Wettenhall concerned provisions of the Thistle Act 1893 which empowered the making of proclamations declaring certain plants to be 'thistles' for the purposes of the Act. 'Thistle' was defined in the Act to include any plant named in a proclamation. A'Beckett J held that in so providing, the Act manifested an intention that, once made, proclamations should inform all persons of the state of the law, and that the proclamations 'formed part of the law' and that the magistrates were entitled to rely on their own knowledge that 'star and saffron thistles' had been declared by proclamation to be thistles without the proclamation being proved. The decision is not authority for the proposition that a court is to be taken as having judicial notice of subsidiary legislation irrespective of the court's actual knowledge. The decision of Marshall v Wettenhall was expressly endorsed by the High Court in Brebner v Bruce.
In Brebner v Bruce the High Court considered the provisions of the Post and Telegraph Act 1901-1949. Section 97 of that Act provided that the Governor-General could make regulations 'prescribing all matters which are necessary or convenient to be prescribed for carrying out or giving effect' to the Act. Section 97 also (importantly) provided that all regulations made in pursuance of that section shall have effect as if they were enacted in the Act. Latham CJ, with whom Webb and Kitto JJ agreed stated that:
The regulations, therefore, when made, became part of the law of the land. In Marshal v Wettenhall Bros (1914) VLR 266, the Supreme Court of Victoria held that magistrates were entitled to act upon their knowledge of the proclamation made under an Act independently of proof of its contents. The learned judge (a'Beckett J) referred to the manifest intention of the Act under which the proclamation was made ‑ 'that the proclamation should inform all persons of the state of the law, and the apparent absurdity of refusing to permit a judicial officer to act on his knowledge of the law so supposed to be made public'. An application for special leave to appeal from this decision was refused by the High Court. In my opinion the decision in Marshall v Wettenhall Bros precisely applies to the present case. The regulations made under the Act became part of the law and a tribunal takes judicial notice of the law, being at liberty to refresh memory by referring to the text of the regulations which, if there is any doubt it, can be established by reference to a copy printed by the Government Printer.
The reasoning in Marshall v Wettenhall and Brebner v Bruce was applied by the Full Court of South Australia in R v Harm.
The Road Traffic (Administration) Act does not contain an express provision making a notice published by a minister in accordance with s 117(2) part of the Act. I consider, however, that there is force in the respondent's submission that because the term 'speed measuring equipment' is defined in the Act only by reference to notices published in the Gazette that the notices form part of the Act because the relevant provision of the Act is otherwise devoid of meaning. This submission is supported by the reasoning in the Marshall v Wettenhall line of authority. Another way of expressing the submission is to say that the intention manifested by the Act is that a notice published in accordance with s 117(2) must be deemed to form part of the Act.
Whilst I consider that there is force in the respondent's submission I reject it because I do not accept it reflects the law in Western Australia as stated in Norton v The Queen.
In the passage of Roberts-Smith J's judgment in Norton v The Queen to which I referred earlier, his Honour referred to the decisions in Marshall v Wettenhall, Brebner v Bruce and R v Harm as being authorities cited by Pearce and Argument in the then current edition of Delegated Legislation in Australia[32] that supported the view that judicial notice of delegated legislation could be taken. Immediately after this reference his Honour stated that was not the position in Western Australia. Those remarks can only be read as a rejection by Roberts-Smith J of the reasoning in Marshall v Wettenhall, Brebner v Bruce and R v Harm being applicable in Western Australia.
[32] Pearce and Argument Delegated Legislation in Australia (2nd ed, 1999).
One further point may be made about determining whether the legislature intended that notices published under s 117(2) of the Act are to form part of the Act. Section 117(2) is to be contrasted with provisions in other Acts that expressly state that subsidiary legislation made under an Act should be taken to form part of the Act. For example s 21 of the Public Sector Management Act 1994 provides that:
…
(5)Each public sector standard and code of ethics shall be published in the Gazette.
…
(9)Subject to subsection (10), a public sector standard or code of ethics has in relation to other Acts and subsidiary legislation made under them the force of law as if enacted as part of this Act, but may be amended or repealed by regulations made under section 108.[33]
Provisions of this nature make it plain that the subsidiary legislation is to form part of the Act. The absence of a provision of a similar nature expressed with the same level of clarity in the Road Traffic Administration Act militates against concluding that notices published under s 117(2) are to be taken to be part of the Act.
Section 14(2) of the Criminal Appeals Act 2004 is not engaged
[33] See also State Records Act 2000 (WA) s 61; Planning and Development Act 2005 (WA) s 262; Western Australia Marine Act 1982 (WA) s 66; Dampier Solar Salt Industry Agreement Act 1967 (WA) s 4; Environmental Protection Act 1986 (WA) s 33 and s 37A; Electoral Act 1907 (WA) s 16K; Health Practitioner Regulation National Law (WA) Act 2010 (WA) s 4.
Section 14(2) of the Criminal Appeals Act provides that even if a ground of appeal might be decided in favour of the appellant, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
The respondent contends that because the Falcon HR device was approved by the minister as a speed measuring device pursuant to the Code that no substantial miscarriage of justice arises from him being convicted by reference to the incorrect Gazette.
The court must consider whether it can be satisfied that no substantial miscarriage of justice has occurred by reference to the admissible evidence at the trial: Weiss v The Queen, [34] and Kalbasi v The State of Western Australia.[35]
[34] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [39], [41] - [45] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
[35] Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 92 ALJR 305 [12] (Kiefel CJ, Bell, Keane & Gordon JJ).
In this case because there was no evidence that the Falcon HR was an approved speed measuring apparatus and the prosecution was unable to rely on the presumption in s 117(4) of the Road Traffic Administration Act 2008, there was no evidence before the magistrate that the appellant was speeding.
The facts of this case may be contrasted with the facts in Lyster v Kemp in which Beech J concluded that even in the absence of a valid notice under the Gazette being tendered, the proviso could apply where other evidence sufficiently established the charge beyond reasonable doubt. In present case there was no other evidence to sustain the magistrate's finding that the appellant was speeding.
Accordingly, the respondent is unable to rely on s 14(2) of the Criminal Appeals Act 2004.
The appellant is not prevented from relying on the absence of evidence that the Falcon HR was an approved speed measuring apparatus
The respondent submits that the appellant is precluded from relying on a 'technical defect' by raising an evidentiary point on the appeal that was not taken at trial. The respondent submitted:
(1)Where a defendant does not object to the failure to tender delegated legislation at first instance, this point cannot be taken on appeal.[36]
(2)A defendant cannot assert at trial that subsidiary legislation is ultra vires but then argue on appeal that the subsidiary legislation had not been formally proved, because by their argument they impliedly conceded the antecedent point of proof.[37]
[36] Sankey v Plover [1903] St R Qd 63, 66 ‑ 67; Blake v Hatte [1929] St R Qd 271, 275.
[37] Ex parte Grogan (1906) 23 WN (NSW) 199.
The tender of the 12 October 2012 notice came about as follows. Senior Constable Hobson was giving evidence in chief. He gave some evidence about a conversation that had taken place between him and the appellant shortly after the appellant's vehicle had been pulled over and then his evidence continued as follows:
[MR HOBSON]: At the time the radar was operating in accordance with the manufacturer's instructions. I'm an operator and I do have a certificate of competency. Is now a good time to give that?
[PROSECUTOR]: I seek to tender that.
[MR HOBSON]: Sorry, the apparatus is approved by the Minister. I do have a copy of the government gazette here.
[PROSECUTOR]: I seek to tender that as well, sir.
[MR HOBSON]: I have reattended the scene since that time and I have some photographs as well.
HIS HONOUR: Right. Okay. Thank you. I will just wait to receive the document. Thank you. So exhibit 1 is the certificate of competency presented to Senior Constable Hobson, dated 13 April 2011. That's a certificate of competency relating to the Falcon HR apparatus.
A few moments later Senior Constable Hobson gave evidence of some photographs taken of the Vasse Highway at the location that the appellant was stopped and the following exchange took place.
[PROSECUTOR]: Okay, Now you told the court you went back and took some photos?---Yes
Right, Can you show them to the court, just one at a time so the magistrate and so the accused can see, and show - tell the court what direction they're taken from and where you saw the accused's vehicle.
HIS HONOUR: Do we have a document camera? Might that be a better way to - - -
JSO: No, not in this courtroom, your Honour.
…
[PROSECUTOR]: Can you hold that up so everyone can see it, thanks?---Sorry, yes.
…
[PROSECUTOR]: Okay, Can that photo be shown to Mr Montalbano, please, just the one - just the first photo that you showed. That photo, is that the most clear photo of all the photos?---Just looking through, unfortunately, because of the weather conditions that day, the weather isn't fantastic for - I will probably tender that one as well. So that - this doesn't show you a vehicle in it, but it's - - -
HIS HONOUR: Right. Okay. Yes thank you - - - Sorry, can I show Mr Montalbano?
ACCUSED: Sorry, Ms Morrisey, may I ask a question? Is it the location where you detected me, isn’t it?
[MR HOBSON]: Sir, the - they're the photos that we've taken - we've had to go back at a later date, so that isn’t on the day we detected you. Clearly, we've gone back at a later date to take them photographs of that area to show a section of the road.
ACCUSED: Yes, yes. So the Vasse Highway in the proximity of the 6 road.
[MR HOBSON]: That's right, sir. Yes, yes.
ACCUSED: Okay.
[PROSECUTOR]: Yes, that's the gazette, sir, that we talked about earlier.
ACCUSED: Thank you very much.
HIS HONOUR: Thank you. So the extract from the gazette is exhibit 2.
HIS HONOUR: Thank you very much. And then in addition to the extract, I've received two photographs, which I receive as exhibit 3.
It is clear from these passages that the appellant had not been shown the 12 October 2012 notice before it was produced by Senior Constable Hobson as he was giving his evidence in chief. Further, the notice was not handed to the appellant for him to inspect when it was referred to by Senior Constable Hobson. The notice was only handed to the appellant after Senior Constable Hobson had given other evidence and when the notice was handed to the appellant it was when he was focussed on the photographs that were being tendered.
In the circumstances that I have outlined it is entirely understandable that the appellant did not appreciate that the 12 October 2012 notice did not approve the Falcon HR apparatus for use as a speed measuring apparatus. This is not a case in which a tactical decision was taken by an accused or a case of an accused who took advantage of inadvertence on the part of the prosecution.
At the commencement of the trial the appellant had made it clear that he required the prosecution to prove all elements of the offence. There was no implied concession on his part at any stage of the trial. It may be accepted, though, that the appellant focussed his submissions on the legal issue of whether the Falcon HR had been calibrated in accordance with the National Measurement Act 1960 (Cth) and National Measurement Regulations 1999 (Cth) but this does not disentitle him from arguing before this court that the prosecution failed to prove the elements of the offence by adducing admissible evidence.
Further any failure by the appellant to object to inadmissible evidence about one type of speed measuring apparatus does not have the effect of converting that evidence into admissible evidence about another type of speed measuring apparatus.
I do not accept that it is right to characterise the failure to prove that the appellant was speeding by admissible evidence as a technical defect. It is a simple matter for a prosecutor to prove that an apparatus has been approved for use as speed measuring equipment but because it is a simple matter does not mean it should be regarded as a technicality.
Proof that a speed measuring apparatus is an approved apparatus is an essential element of the evidence and (to adopt Beech J's observation in Lyster v Kemp) because of the significant forensic and evidentiary consequences of such equipment being approved it should not be regarded as a technicality.
Observations to a similar effect to those made by Beech J in Lyster v Kemp were made by Coldrey J in Papadopolous v Hunter.[38] In Papadopolous the appellant appealed against convictions for drink‑driving contrary to ss 49(1)(a) and (g) of the Road Safety Act 1986 (Vic). Section 57(2) of that Act provided that the presence of, and concentration of alcohol, in a person's blood could be established by the tender of a certificate of analysis in a form prescribed by regulations made under the Act. Before the magistrate a certificate of analysis of a blood sample taken from the appellant was tendered. There was no objection to the tender of the certificate though counsel for the appellant reserved the right to make submissions about the effect of the certificate at a later stage of the trial. All concerned proceeded on the misapprehension that the certificate was valid when, in fact, it was not because it was not in the prescribed form. There was, however, evidence that the blood sample was taken lawfully in compliance with the relevant regulations. A certificate of the kind required by the legislation had in fact been produced, but for reasons unknown the correct certificate was not tendered. As to this Coldrey J said:
It was common ground that no certificate in the prescribed form purporting to be signed by a legally qualified medical practitioner was tendered in this case albeit that it had apparently been served on the appellant pursuant to s 57(5) as a necessary prerequisite to its admissibility. In the circumstances, in the absence of any other explanation one may infer that it was a deliberate decision by the prosecution particularly as the other document, being the purported analyst's certificate, was tendered.
[38] Papadopolous v Hunter (1995) 85 A Crim R 572.
Coldrey J went on to consider authorities on the issue of whether a failure to object to the admission of evidence at trial prevented the issue of its admissibility being raised on appeal. His Honour noted the existence of a general rule that where an objection relating only to the mode or form of proof had not been taken at trial, the admission of the evidence will not justify the granting of a new trial, even if the objection would have been a sound one. His Honour's reasoning on the application of this general rule to the facts of the case before him was as follows:
Whilst on one view of the provisions under consideration in the Road Safety Act may be regarded as providing a form and mode of proof, the fact is they provide a mechanism by which the prosecution may avoid the normal rules of admissibility in order to prove matters which are either elements, in integral parts, of offences under s 49 (1) of the Act. Accordingly non-compliance with the evidentiary requirements set out in the Act ought, at least in the absence of conscious consent by the defence, render documentary evidence sought to be tendered in breach of such requirements inadmissible.
The respondent should not be permitted to adduce evidence of the 22 October 2010 notice on appeal
The respondent applied for leave to adduce evidence of the 22 October 2010 notice in the course of the appeal and have the appeal determined on the basis of that evidence. For the reasons developed below the respondent should not be permitted to take this course.
Section 39(1) of that Criminal Appeals Act 2004 provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. However, s 39(3) provides that s (1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Act.
Section 40(1)(e) provides:
40.General powers to deal with appeals
(1)For the purposes of dealing with an appeal, an appeal court may do any or all of the following -
…
(e)admit any other evidence;
The effect of s 39(1), s 39(3) and s 40(1)(e) of the Criminal Appeals Act, when read together, is to give this court the discretion to admit and decide an appeal on evidence and material which was not before the lower court.[39] As noted by Mazza JA with whom Martin CJ and Buss P agreed in VJS v The State of Western Australia [2017] WASCA 172:[40]
A discretion given to the court to admit evidence not before the lower court is plainly wide and is designed to serve the demands of justice. It is confined only by the subject matter of the legislation and by the requirement that it must be exercised judicially. However, because Parliament conferred an appellate jurisdiction on the Court of Appeal, it is highly unlikely the Parliament intended to abolish the distinction between original and appellate jurisdictions.[41]
[39] Juma v The State of Western Australia [2011] WASCA 54 [22] (Mclure P, Newnes JA & Mazza J); Stavrianakos v The State of Western Australia [2011] WASCA [27] (Mazza JA, Mclure P & Buss JA agreeing).
[40] VJS v The State of Western Australia [2017] WASCA 172 [222]. See also Stavrianakos v The State of Western Australia [2011] WASCA 130 [28] (Mazza JA, Mclure P & Buss JA agreeing); Cramphorn v Bailey [2014] WASCA 60 [60] (Mazza JA, Mclure P & Buss JA agreeing).
[41] de La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [150] (Pullin JA).
Exercising a discretion judicially means, among other things, that it must not be exercised arbitrarily, capriciously or to frustrate the legislative intent. Rather, it must be exercised in the interests of justice and within the confines of the purposes for which it was entrusted.[42]
[42] PMT Partners Pty Ltd (in liq) v Australian National Parks & Wildlife Service [1995] HCA 36; (1995) 184 CLR 301, 313 (Brennan CJ, Gaudron & McHugh JJ); Sharpe v Wakefield [1891] AC 173, 179 (Lord Halsbury LC).
The cases dealing with the principles governing the admission of evidence on appeal are almost exclusively concerned with applications by those who have been convicted to adduce new evidence in appeals against conviction or sentence. In Basham v City of Joondalup [No 2], [43] however, Fianacca J determined that it was in the interests of justice to allow a respondent prosecuting authority to adduce new evidence for the purposes of establishing that there had been no substantial miscarriage of justice for the purposes of s 14(2) of the Criminal Appeals Act 2004.
[43] Basham v City of Joondalup[No 2] [2016] WASC 120; (2016) 258 A Crim R 451.
In support of the application to admit further evidence the applicant relied on a number of appeal decisions concerning the circumstances in which a prosecutor will be permitted to re-open a case or to adduce further evidence at the appellate stage in order to make good an evidentiary deficiency brought about by an error, slip or mistake on the part of a prosecutor.[44]
[44] Lee v Irish [1949] VLR 166, 168 (Martin J); Schuett v McKenzie [1968] VR 225, 228 – 229 (Winneke CJ); Kennett v Holt [1974] VR 644, 650 (Pape J); Hansford v McMillan [1976] VR 743, 750 (Anderson J); R v Harm (1975) 13 SASR 84, 106 (Bright J); Baskerville v Lippett (1974) 9 SASR 575, 582 (Wells J).
There is no immutable rule as to how applications to re-open or to adduce additional evidence on appeal should be approached. The interests of justice is the guiding consideration.[45] It is trite to say that every case will depend on its own facts. The point was expressed in more memorable terms by Olsson J in Piszczyk v Bolton,[46] where his Honour said:
If I may be pardoned a boating analogy (as this is a boating case) the waters in which one travels when considering an issue such as this are fraught with many shoals in the form of a plethora of decided cases. Some of them are, seemingly, not necessarily very easy to reconcile with one another. I think that it is true to say one can find an authority for almost any proposition which one seeks to advance in this area. That is by no means intended as a criticism of those who have been responsible for the decisions. The situation simply serves to establish that, as has been said so often, there is no single rule of thumb which can be applied to all cases. Every situation must be considered in light of its particular factual circumstances.
[45] Huggins v The State of Western Australia [2018] WASCA 61 [397] (Buss P, Mazza & Beech JJA).
[46] Piszczyk v Bolton (1984) 38 SASR 330.
There was no evidence adduced on the respondent's behalf to explain why the 12 October 2012 was tendered. In the absence of evidence I do not consider that I should conclude that the tender was a slip or that it was brought about by accident. This was not a case of an omission to tender a document as a result of an oversight. It seems more likely that the witness and the prosecutor were misled by the ambiguity in the certificate to which the respondent drew attention on this appeal. In other words there was a deliberate decision to tender the 12 October 2012 certificate in a mistaken belief that it applied to the Falcon HR apparatus.
Had the mistake been realised during the trial and an application had been made to re-open the prosecution case it may have been in the interests of justice to permit the prosecutor to re-open - I express no view. To permit a respondent to adduce evidence on appeal for the purposes of establishing the critical issue that was not established by admissible evidence at trial would, in my judgment, elide entirely the distinction between the original and appellate jurisdictions. To permit such a result is not in the interests of justice.
Conclusion - the magistrate's finding was not supported by the evidence
For the reasons set out above I have concluded that the magistrate's finding was not supported by the evidence and that the appellant has made out the first ground of his appeal. I grant leave to appeal in respect of that ground and the appeal succeeds on that ground.
Ground 2 & 3: the appellant's reliance on the National Measurement Act 1960 (Cth)
In the light of my conclusion on ground 1 it is unnecessary for me to address grounds 2 and 3 in any detail. There have been a number of decisions of this court in which the arguments that the appellant now seeks to raise have been rejected.[47]
[47] See Jenkins v WMC Resources Ltd [1999] WASCA 171; (1999) 21 WAR 393 [5] (Pidgeon J, Anderson J agreeing); Rumsley v Taylor (1997) 142 FLR 312, 316-7 (Wheeler J); Radalj v Taylor (1997) 98 A Crim R 170, 175 (Heenan J); Fazio v St John-Ayre [2017] WASC 62 [150] - [160] (Fiannaca J); Bond v Mastrangelo [2013] WASC 400 [26] (Allanson J).
With respect to the appellant his reliance on the provisions of the National Measurement Act 1960 (Cth) involve a misconception of the relevant law and this is explained in the cases to which I have referred in the preceding paragraph. I will not grant leave to appeal in respect of these grounds - they have no reasonable prospects of success.[48]
[48] Criminal Appeals Act 2004 (WA) s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56]; Criminal Appeals Act 2004 (WA) s 9(3).
Although ground 3 alleged that s 117 of the Road Traffic (Administration) Act is invalid, because there is no arguable basis for the allegation of inconsistency no issue under s 109 of the Constitution arises.[49] Therefore I did not make orders adjourning the matter and directing notices to be issued under s 78B of the Judiciary Act 1903 (Cth).[50]
[49] Shaw v McGinty [2006] WASCA 231 [42] (Wheeler JA); O'Connell v The State of Western Australia [2012] WASCA 96 [90] (Mazza JA); Kozisek v Australian and New Zealand Banking Group Ltd [2019] WASCA 71 [70] (Murphy & Beech JJA).
[50] See Blenkinsop v Wilson [2019] WASC 77 [73] (Corboy J); Sprlyan v Wyborn [2019] WASC 227 [279] - [280] (Jenkins J).
Ground 4: was the appellant denied procedural fairness in the presentation of his case?
The appellant's final ground of appeal was framed in the following way (with suitable amendments):
The [magistrate] ignored and dismissed the appellant when he was highlighting the [National Measurement Act 1960 (Cth) and National Measurement Regulation 1999 (Cth)] and [Breedon v Kongras (1996) 16 WAR 66]. The magistrate clearly said that the State Regulations are those to be considered in this matter and the evidences provided by the police officers were enough to proof that the appellant was speeding.
The relevant legal principles concerning procedural fairness in criminal matters were recently summarised by Jenkins J in Sprlyan v Wyborn [2019] WASC 227, at [160] - [162] her Honour observed:
Procedural fairness requires that an accused person in a criminal trial must be given a reasonable opportunity to appear and present his or her case. What amounts to a reasonable opportunity to present a case depends on the circumstances of the case, including the nature of the jurisdiction, the subject matter, and the statutory provisions governing the power or jurisdiction being exercised.
As a general rule a person will not be afforded procedural fairness if he or she is not given a reasonable opportunity to make relevant submissions, give evidence, and call witnesses in support. However, the opportunity that must be afforded will always be qualified by the requirement that the material and argument sought to be presented must be sufficiently relevant and significant to warrant being received.
The assessment is one of 'practical injustice'. For example, a court may refuse to grant relief based upon a suggested denial of procedural fairness if it may safely be concluded that the completion of the submissions that were cut off would have made no difference to the outcome. (footnotes omitted)
Once again because I have concluded that the appeal succeeds on ground 1 it is unnecessary for me to address this ground in any detail. I have considered the transcript of the hearing of the trial. In my assessment there can be no suggestion that the magistrate did not allow the appellant an adequate opportunity to present his case. I refuse leave to appeal in respect of this ground - it has no reasonable prospects of success.
Orders
I will make orders granting leave to appeal in respect of ground 1 and will allow the appeal in respect of that ground. I will make an order setting aside the conviction. I will refuse leave to appeal in respect of each of the other grounds of appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Research Associate/Orderly to the Honourable Justice Tottle28 AUGUST 2019
4
31
4