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 of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ng v Cooper

Details

AGLC: Ng v Cooper [2005] WASC 233
Case: [2005] WASC 233
Decision Date: 10 OCTOBER 2005

CaseChat Overview and Summary

In the case of Ng v Cooper, the plaintiff sought to challenge the validity of a speeding conviction under the Road Traffic Act 1974 (WA), alleging that the equipment used to measure speed was inaccurate and therefore the conviction was unlawful. The defendant, Cooper, argued that the conviction was valid and enforceable. The case was heard in the Supreme Court of Western Australia.

The legal issues before the court included whether the Road Traffic Act 1974 (WA) required the police to provide evidence of the accuracy of the speed measuring equipment used in the conviction and whether the failure to do so constituted a failure to observe procedural fairness. The court also considered whether the Criminal Code s 24 had any impact on the requirement for the police to provide evidence of accuracy and whether the failure to do so resulted in a failure to observe procedural fairness.

The court found that the Road Traffic Act 1974 (WA) did not require the police to provide evidence of the accuracy of the speed measuring equipment used in the conviction, and therefore, the failure to do so did not constitute a failure to observe procedural fairness. The court also found that Criminal Code s 24 did not impose any additional requirements on the police to provide evidence of accuracy. The court further held that the requirement for the police to provide evidence of accuracy was not a fundamental rule of procedural fairness, and therefore, the failure to do so did not result in a failure to observe procedural fairness. The court dismissed the plaintiff's challenge to the conviction.

The court dismissed the plaintiff's claim and ordered the plaintiff to pay the defendant's costs of the proceedings.

Orders