Ng v Cooper - [2005] WASC 233

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: NG -v- COOPER [2005] WASC 233

CORAM: MCKECHNIE J

HEARD: 10 OCTOBER 2005

DELIVERED : 10 OCTOBER 2005

FILE NO/S: SJA 1081 of 2005

BETWEEN: EDMUND LUN SING NG
Applicant
AND
MARK ANDREW COOPER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MR I G BROWN SM
File No  :PE 8346 of 2005

Catchwords:

Courts and Judges - Apprehended bias - Road Traffic Act 1974 (WA) - Accuracy of speed measuring equipment - Effect of Criminal Code s 24 - Criminal practice - Requirement to allow closing address

Legislation:

Criminal Code (WA), s 24

Road Traffic Act 1974 (WA), s 98A

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: No appearance

Solicitors:

Applicant: In person
Respondent: No appearance

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

Davis v Armstrong (1993) 17 MVR 190

Case(s) also cited:

Nil

MCKECHNIE J: On 19 July 2005 the applicant was convicted on a charge of exceeding the speed limit in a school zone. He pleaded not guilty to the charge which was heard and determined on the same day. The applicant is a litigant pro se. The prosecution called one witness, a police officer, who was on duty in a school zone on Amelia Street, near Cedric Street, in Balcatta, using a laser speed measuring device.
The police officer gave evidence that he observed a red sedan, subsequently found to be driven by the applicant, travelling east on Amelia Street. He trained the laser device and first obtained a reading of 60 kilometres per hour. He retrained the laser device and obtained a reading of 55 kilometres per hour. He said that the applicant when stopped said: "I didn't think it was a school day."
The applicant gave evidence that he was sure it was not a school day although he later found out he was wrong. He said he was well under 60 or 55 kilometres per hour. His wife gave evidence to similar effect. The applicant has prepared his grounds of appeal. Some of them are not proper grounds but a narration. In essence, some of the grounds allege that the Magistrate had biased opinions and had prejudged the case prior to the end of the hearing.
Magistrates daily deal with pro se litigants and it goes without saying that such litigants should be treated with courtesy and fairness. A Magistrate has a duty to ensure that the rules of procedure and the rules of evidence are complied with. No doubt some latitude can be afforded on occasions but in the end the Magistrate must keep control of the proceedings and ensure even‑handedness to each side.
I have read the transcript of the proceedings. In fact, I have read it several times very carefully. Nothing appears from the transcript that indicates to me the Magistrate was biased or displayed impatience or displeasure to the applicant. I am unpersuaded that there are reasonable grounds to assert that the Magistrate displayed bias or prejudgment during the course of the hearing.
The applicant's grounds also assert that he was deprived of his legal right to make a closing statement. At the conclusion of the hearing, the Magistrate said:
"All right. As I understand it, that completes the evidence available from all witnesses and it's now my task to determine whether the charge is proven.
I give each party the opportunity for a closing comment, which is an opportunity to comment on the evidence but not to adduce any fresh or new evidence. The evidence is completed …"
The prosecutor then summarised the case briefly. The Magistrate turned to the applicant and said:
"I have heard your evidence and I've - - I'm now going to consider all that but, by way of a closing statement, I just need you to confirm you have said all you want to say and you maintain, firstly, that you did not know that it was a school day.
MR NG: Yes.
HIS HONOUR: And secondly you deny you were speeding in any event.
MR NG: Yes.
HIS HONOUR: All right. Well, I understand your case ..."
With respect to the Magistrate, this does not constitute giving the applicant an opportunity to make a closing statement. An accused has an absolute right to make a closing address: Criminal Procedure Act 2004 (WA) s 145(2). Failure to allow the applicant to exercise that right has led to a miscarriage of justice.
Other grounds of appeal relate to errors of fact which it is asserted were made by the Magistrate.
The Road Traffic Act 1974 (WA) s 98A(3) provides:
"In any proceeding for an offence against this or any other Act or the regulations evidence may be given of the use of speed measuring equipment by an authorised person in relation to a vehicle and of the speed at which that vehicle was moving as ascertained by the use of that equipment, and that evidence is prima facie evidence of the speed at which that vehicle was moving at the time of the use of that equipment in relation to that vehicle."
These provisions were considered in Davis v Armstrong (1993) 17 MVR 190 by Murray J at 192.
The Magistrate's reasons set out the evidence of the applicant and his wife. He said:
"… he hasn't been able to positively to say what actual speed he was travelling at, neither has his wife."
In respect of this latter comment, the Magistrate had rejected, for reasons which he gave, the evidence of the applicant's wife that she was looking at the speedometer. Each of these findings was open on the evidence and it was for the Magistrate to make such findings as he considered proper. He concluded:
"I am satisfied the prosecution has discharged its burden and I'm not satisfied that there is any credible evidence which should result in any decision but conviction."
The Magistrate considered and dealt with the question of the Criminal Code s 24 on the basis that the applicant may have honestly and reasonably but mistakenly believed that it was not a school day and therefore that the prosecution would have to negative such a belief. The applicant had not raised s 24 in terms but he did say that he thought it was a school day. It was therefore incumbent upon the Magistrate to consider the effect of the Criminal Code s 24.
I say it is incumbent, although I have some doubt whether a belief whether a day is a school day or not is a belief in any state of things or is a belief in a matter of law for which s 24 has no application. However, I do not resolve this issue and will proceed on the basis most favourable to the applicant, which is that such a defence is open. The Magistrate said in respect of s 24:
"However, in regard to the defence available of honest and reasonable but mistaken belief in the set of facts, I have to say that in the absence of evidence that there was a belief that it was something extreme on what was a weekday, not a weekend, that is, there's no suggestion that it was a pre‑announced teachers' strike or that it was, in fact, the school holiday period, it seems to me that there is no proper basis for the court to accept that he held an honest and reasonable belief that it was not a school day."
Such a finding of fact was open to the Magistrate.
I am conscious that the applicant is a litigant pro se and the proceedings may have at times been confusing to him. Perhaps these proceedings are also. I have had the advantage of listening to the applicant outlining his arguments. The applicant was unaware of the effect of certain statutes, to which I have referred, which directly affected his case. He may have formed a view that the Magistrate was being unfair when the Magistrate intervened.
However, the test for bias is not that of the litigant's belief but that of an independent fair-minded observer. Applying that test, there is nothing in the material that indicates the Magistrate displayed any element of bias or prejudgment. The findings of fact which the Magistrate made were clearly open to him and the grounds of appeal do not demonstrate any error in that regard.
I have said that there was a miscarriage of justice. Under the Criminal Appeals Act 2004 (WA) s 14, even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. In all the circumstances, I am of the opinion that on an appeal a Judge would inevitably dismiss the appeal on the basis that although there was a miscarriage of justice, it was not a substantial miscarriage of justice in failing to accord the applicant his legal right to a closing address in the circumstances in this case. The issues were of narrow compass and despite the absence of a closing address, the Magistrate's reasons did not in the event disclose error.
I therefore refuse leave to appeal on all grounds.