OBST -v- MORRIS [2008] WASC 156

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 156
Case No:	SJA:1069/2007	Heard:	7 MARCH 2008
Coram:	JOHNSON J	Delivered:	31/07/08
No of pages:	42	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	WAYNE MURRAY OBST IAN KEITH MORRIS
Catchwords:	Appeal against conviction Exceeding speed limit Prima facie effect of radar reading
Legislation:	Road Traffic Act 1974 (WA) s 98A Road Traffic Code 2000 (WA) reg 11(3)
Case References:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Brunskill v Sovereign Marine and General Insurance Co Ltd [1985] HCA 61; 62 ALR 53 Cazzol v Fuss (1988) 6 MVR 350 Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; 103 FCR 1 Davis v Armstrong (1993) 17 MVR 190 Devries v Australian National Railways Commission (1993) 177 CLR 472 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588 Weir & Anor v Tomkinson [2001] WASCA 77

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : OBST -v- MORRIS [2008] WASC 156 CORAM : JOHNSON J HEARD : 7 MARCH 2008 DELIVERED : 31 JULY 2008 FILE NO/S : SJA 1069 of 2007 BETWEEN : WAYNE MURRAY OBST

Appellant

AND

IAN KEITH MORRIS

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE S P SHARRATT

File No : TS 172 of 2006

Catchwords:

Appeal against conviction - Exceeding speed limit - Prima facie effect of radar reading

Legislation:

Road Traffic Act 1974 (WA) s 98A

Road Traffic Code 2000 (WA) reg 11(3)

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Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr D L Armstrong

Respondent : Ms J E Shaw

Solicitors:

Appellant : Altorfer & Stow

Respondent : State Solicitor for Western Australia

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

Abalos v Australian Postal Commission (1990) 171 CLR 167
Brunskill v Sovereign Marine and General Insurance Co Ltd [1985] HCA 61; 62 ALR 53
Cazzol v Fuss (1988) 6 MVR 350
Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; 103 FCR 1
Davis v Armstrong (1993) 17 MVR 190
Devries v Australian National Railways Commission (1993) 177 CLR 472
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588
Weir & Anor v Tomkinson [2001] WASCA 77

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1 JOHNSON J: The appellant appeals against his conviction after trial for speeding, contrary to reg 11(3) of the Road Traffic Code 2000 (WA). The charge alleged that the appellant was driving his vehicle at 125 km per hour when the speed limit was 110 km per hour. The essence of the appeal is that the appellant should not have been convicted on the evidence before the magistrate.

The Evidence

2 The offence is alleged to have taken place on Depot Hill Road, Mingenew, where the speed limit was 110 km per hour. According to the evidence of Senior Constable Ian Morris and Constable Darryl Peden from the Three Springs Police Station, who were conducting patrol duties in a marked traffic vehicle, the appellant's speed was 125 km per hour. The appellant's speed was measured with the Decatur Genesis 2, a radar unit used for ascertaining speed of vehicles, which was approved by ministerial notice published in the Government Gazette. Senior Constable Morris is now a sergeant and Constable Peden is now a senior constable. For ease of reference, I will use the title of Sergeant for Officer Morris and Constable for Officer Peden.

3 Sergeant Morris' evidence was that on 28 March 2006 he was on patrol with Senior Constable Peden, who was the front seat passenger. As they were driving approximately 200 metres west of Strawberry North East Road, he observed a vehicle turning right from Strawberry North East Road into Depot Hill Road heading towards Mingenew. Sergeant Morris' evidence was that, the appellant having turned the corner in an easterly direction, his vehicle then accelerated heavily towards Mingenew. Sergeant Morris attempted to catch up. After following the appellant's vehicle through a floodway and around a sweeping left-hand bend, Sergeant Morris positioned the police vehicle approximately 50 m behind the appellant's vehicle. He observed the police digital speedometer and the analogue needle at a constant speed of 130 km per hour. At the same time Constable Peden activated the Decatur Genesis 2 radar, which displayed a speed of 127 km per hour. Sergeant Morris then activated the police emergency lights and the appellant's vehicle pulled over to the left on to the gravel shoulder. Sergeant Morris introduced himself to the appellant, who was the driver of the vehicle and who, according to Sergeant Morris, was very hostile towards him. In accordance with his standard practice, Sergeant Morris then asked the appellant if he would like to see his reading on the radar but the appellant declined. Sergeant Morris then proceeded to write out the traffic infringement notice, which he handed to the appellant. Sergeant Morris stated that the police are

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required to take off 2 km per hour to allow for 'any variable in the speed'. Consequently, the speed nominated in the traffic infringement notice was reduced to a speed of 125 km per hour. The infringement notice issued by Sergeant Morris includes the appellant's explanation which was, 'No, bullshit.'

4 Sergeant Morris also gave evidence about the calibration of the analogue part of the police vehicle's speedometer and produced the log book recording that check. Sergeant Morris told the court that, prior to starting the patrol at 8.14 am, he was present when Constable Peden checked the radar in accordance with the manufacturer's specification and it was found to be working correctly. Sergeant Morris also said in his evidence that the radar unit was capable of giving readings up to 5 km away.

5 In cross-examination, it became apparent that there was a dispute between the evidence of Sergeant Morris and that to be given by the appellant in relation to a number of issues. One issue was the nature of the conversation prior to writing out the infringement notice, including the proposition that the appellant was hostile and the sergeant was aggressive. It was also suggested, but disputed by the sergeant, that the appellant denied he had been speeding.

6 Another issue raised in cross-examination was whether there was an occasion that the speed of the police vehicle matched the speed of the appellant's vehicle for a sufficient period of time to take a radar reading.

7 A further issue on which Sergeant Morris was cross-examined was the configuration of the roadway at the point where the appellant's vehicle was speed checked and where both vehicles stopped at the side of the road. Sergeant Morris' recollection was that there were three hills along the road after the sweeping left bend. Sergeant Morris said that the radar reading was taken after he had turned a sweeping left-hand bend and before the three hills. The appellant stopped just over the third hill.

8 Another issue in dispute was the manner of the appellant's driving when he was first noticed by the police officers. Sergeant Morris' evidence was that as the appellant's vehicle was travelling down Strawberry North East Road, as he approached the intersection, rocks and gravel were being strewn behind the vehicle. After he drove through the floodway the appellant's vehicle was seen accelerating away.

9 The final issue was the presence of another vehicle on the road at the time. Sergeant Morris was certain there was no other traffic on that

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section of the road, 'not a single thing'. He said there was no traffic ahead and no vehicle between the police vehicle and the appellant's vehicle. Sergeant Morris also denied that there was another vehicle about a kilometre ahead of the appellant's vehicle.

10 Constable Peden confirmed that he was a passenger in the police vehicle on that day. He gave evidence that at 8.40 am he tested the radar unit in accordance with the manufacturer's specifications and found it to be operating correctly. He produced the 'contact sheet' to confirm the time of testing that morning. As to the incident the subject of the charge, Constable Peden said that he saw the appellant's vehicle turn right from Strawberry North East Road on to Depot Hill Road, heading towards Mingenew. He said the vehicle sped off in front of them after cutting the corner and Sergeant Morris gave chase. The appellant's vehicle had gone through the river crossing above the 60 km per hour recommended limit. The appellant also cut the corner and hit the gravel of the left-hand bend after the floodway.

11 Constable Peden's evidence was that when the police vehicle rounded the left-hand bed after the floodway they were able to speed check the vehicle and he was able to lock the radar on to the vehicle. He said that he was probably 50 to 100 m behind the vehicle when he was able to do the speed check as well as the radar. Constable Peden confirmed that the radar apparatus recorded a speed of 127 km per hour, which was then locked into position. When Sergeant Morris activated the lights on the police vehicle, the appellant pulled over. When shown a plan of the area, Constable Peden identified the same straight stretch of road as Sergeant Morris as the location where the appellant's speed was checked. He also described the configuration of the road and identified a number of hills.

12 According to Constable Peden, he was standing by taking notes when Sergeant Morris had a conversation with the appellant. According to the running sheet, apart from a random breath test, a vehicle registration was the only other check carried out. However, Constable Peden said that it was routine to check the tyres and the licence. He also said the appellant mentioned that he was in a bit of a hurry and became fairly aggressive or agitated. However, Constable Peden maintained that at no time did the appellant dispute the speed at which the police alleged he was travelling and neither did he view the speed when the offer was made for him to do so. He denied that Sergeant Morris was aggressive and disputed that he had a discussion with the appellant about inspecting the vehicle.

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13 Constable Peden's evidence was that he saw no other vehicle between when he sighted the appellant's vehicle and when they stopped. Neither could he remember seeing any vehicle pass them when they were talking to the appellant on the side of the road. He conceded the possibility that a motor vehicle might have passed while they were concentrating on the appellant but he did not see that vehicle. However, Constable Peden maintained that there were no other vehicles within a range of 5 km ahead and no vehicle between the police vehicle and the appellant's vehicle when the radar reading was taken. Constable Peden said it was too hard to see any traffic ahead of the appellant because there was a hill ahead.

14 Evidence was adduced on behalf of the appellant from Mr Sobey, a school bus driver from Mingenew. That afternoon Mr Sobey was returning home from a property down in Strawberry North East Road. At about 2.10 pm he was travelling on Depot Hill Road, along the section described as a floodway. According to Mr Sobey, the appellant passed him not long after the floodway crossing and then later on a police vehicle passed him, just after he had gone around a bend 'towards the first of the crests'. He said that the appellant's manner of driving seemed reasonable. He said that 'after several humps', which was apparently a reference to what other witnesses referred to as hills or rises, the appellant was parked on the side of the road on a straight and the police vehicle was behind him. The police officers were already out of their vehicle and the appellant was walking towards them. Mr Sobey just kept going and did not recall whether there was another vehicle in front of his at this time.

15 The appellant gave evidence that at the relevant time he was driving his Ford sedan on the bitumen along Strawberry North East Road. He was intending to go to Mingenew but was not in a hurry. He stated that he was aware of the speed limit for Strawberry North East Road and for Depot Hill Road and estimated that he had driven on that road 85,000 times.

16 When the appellant approached the T-junction with Depot Hill Road, he took the opportunity to stop momentarily there, about a car-length from the intersection, to check his mobile phone.

17 The appellant said that it is quite a dangerous intersection because of the limited view. He looked back to the left and he moved out on the road, a car came around the corner on his left-hand side, which at the time he thought was a police vehicle. It was about 210 metres away. He then continued on down the road and when he was going down into the river

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he checked in his rear vision mirror and saw, firstly, the lights on the top of the car come over the hill, and then the car came into view, confirming it was a patrol car. The appellant denied that he spun his wheels or spun up gravel or that he cut the corner at speed. According to the appellant, there was no gravel on Strawberry North East Road for 31 metres back from the Depot Hill Road intersection. He produced a photo which he said established that, from where the patrol car would have been, the gravel part of Strawberry East Road is not visible because of the vegetation.

18 The appellant gave evidence that when he headed off towards the floodway he did not take particular notice of his speed, but he was concerned about the patrol car and thought he had best keep out of its way. The appellant said that he was probably doing 80 or 90 km per hour and 80 km per hour going into the floodway. When he saw Mr Sobey in front of him he increased his speed to about 100 km per hour. The appellant maintained that he was aware the police were there as he had seen them in his rear vision mirror so he was not going to speed.

19 The appellant explained that he was faced with the problem of passing Mr Sobey on the first straight. The appellant said that after the floodway he was not aware of the police vehicle because it is a very short straight. He only saw the police then when he was at the top of the hill and they were behind him. The appellant said that when he came around the first corner Mr Sobey was travelling at 70 or 80 km per hour.

20 As he went around Mr Sobey the appellant checked the speedometer because he knew the police were behind him and his speed was 110 km per hour. It was put to the appellant that he saw the police vehicle behind Mr Sobey's and he agreed, although he had not actually said that in his evidence.

21 The appellant said he did not see the police vehicle overtaking Mr Sobey's because that was behind him and he had gone around a corner, which blocked to his vision. He continued on and came to the first of three hills. He continued around the corner and then to the second of the three hills, and then the third, and on the third hill the road then opens up and is straight. The appellant said that he pulled to the left then looked into the rear vision mirror to see if the police vehicle was going to pass him and the light was on so he pulled off the road straight away. The appellant said that he did not see the police vehicle after the overtaking manoeuvre and before the lights went on because of the dips in the road. The appellant also said that there was no vehicle that he saw between his

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vehicle and the police vehicle when the police vehicle switched its lights on. The appellant did maintain that there was another vehicle approximately 800 m or 1 km ahead of him but he could not ascertain who it was or what it was. He said that there are eight entry points from where he entered the road to where he stopped and there was ample opportunity for other vehicles to be involved.

22 According to the appellant, his speed from when he overtook Mr Sobey to when he stopped was 105 to 110 km per hour. He made sure he was not over the speed limit by looking at the speedometer, which he looked at 'probably only three times'. The appellant had last checked his speed at about 40 m before he got to the top of the hill and it was 110 km per hour. He denied that he exceeded the speed limit and said that there had been a mix-up somewhere, which he could not explain. The appellant also said that he found it hard to imagine that at some point the two vehicles were equally distant because the road has so many bends and twists.

23 The appellant said that he got out of his vehicle and stood at the rear whilst the two police officers got out of their vehicle. He saw Mr Sobey going past when the police started to interview him. The appellant maintained that he wrote down the conversation with the police in his diary. He stated that Sergeant Morris got out and identified himself, his rank and his station and said that he had checked him at 130 km per hour to which the appellant said, 'Oh, fair go.' The appellant then said that he checked his speed when he passed Mr Sobey's utility and he was travelling at the speed limit. The appellant described Sergeant Morris' attitude as less than ideal and not friendly. He disputed Sergeant Morris' description of him as hostile, saying that it is not in his nature. The appellant then gave his version of the conversation with the two police officers, making it clear that he had not accepted that he was speeding. He did accept that the offer had been made for him to look at the radar reading which he declined 'because there is nothing on a radar to say what it's taking the speed of'.

24 The appellant gave evidence about the accuracy and condition of the speedometer in his vehicle. He also gave evidence of the circumstances in which he had tested the accuracy of his speedometer.

25 The magistrate, having considered all the evidence, determined that the evidence presented on behalf of the appellant did not displace the statutory prima facie effect of the evidence of the radar unit and found the charge proved.

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Legal Principles

26 The legal effect of a reading taken by speed measuring equipment of this type is set out in s 98A of the Road Traffic Act 1974 (WA), (RTA). Section 98A(1) of the RTA defines the term 'speed measuring equipment' as meaning apparatus of a type approved by the minister pursuant to s 98A(2). Section 98A(2) empowers the minister to approve types of apparatus for ascertaining distances on roads by notice published in the Government Gazette. Section 98A(3) then provides that, in any proceeding for an offence, evidence may be given of the speed at which a vehicle was moving as ascertained by the use of speed measuring equipment by an authorised person and that evidence is prima facie evidence of the speed at which that vehicle was moving at the time the speed was ascertained. It is apparent that an essential requirement before the speed so ascertained can be said to be prima facie evidence is that speed measuring equipment was operated by an authorised person. An 'authorised person' in relation to speed measuring equipment is defined to mean a member of the police force or a person certified by the Commissioner of Police (Commissioner) as being competent to use the equipment: s 98A(1). Section 98A(5) states that nothing in the section shall 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.

27 As I have noted, the evidence established that the Decatur Genesis 2 had been approved by the minister in the appropriate way and that the operators of the unit were members of the police force and were certified by the Commissioner as being competent to use that unit. In those circumstances, in the absence of further evidence, the evidence of the police officers of the radar reading and of the applicable speed limit was conclusive proof, sufficient to establish beyond a reasonable doubt that the appellant's vehicle had exceeded the speed limit. If further evidence is not forthcoming, the prima facie proof becomes conclusive proof and enables the complainant to discharge the onus of establishing the charge beyond a reasonable doubt: Davis v Armstrong (1993) 17 MVR 190, Murray J, 192.

28 As counsel for the respondent submitted, the onus was on the appellant to adduce evidence capable of displacing the prima facie effect of the prosecution evidence of the radar reading. The appellant could cast doubt on the accuracy of the radar reading by establishing that it had not been properly tested, or circumstances were such that it might not have

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been operated accurately. Another method suggested by counsel for the respondent for casting doubt on the accuracy of the radar reading was for the appellant to adduce evidence of witnesses to the effect that he was not exceeding the speed limit at the time:

Davis v Armstrong

, 192. I accept that these are all appropriate methods of casting doubt on the accuracy of the radar reading so as to displace the prima facie effect of the radar reading. Of course, whether or not particular evidence has that effect is a matter for the magistrate.

The grounds of appeal

1. The learned Magistrate erred in law and in fact in finding that there was insufficient evidence to displace the prima facie effect of Section 98A(3) of the Road Traffic Act as to the speed at which the Appellant's vehicle was travelling when:

(a) the learned Magistrate did not reject or criticise the evidence of the Appellant but found him to be an honest witness; and

(b) it was the evidence of the Appellant that:

(i) he ('the Appellant') was familiar with Depot Hill Road ('the road') having driven on the road on numerous occasions over many years and he was aware of the 110 kilometre per hour speed limit;

(ii) he was in no hurry to arrive at his destination;

(iii) he was aware of the presence of the traffic patrol vehicle on the road having observed it as he turned into Depot Hill Road from Strawberry North East Road. The Police vehicle was approximately 220 metres north of him on Depot Hill Road;

(iv) he was conscious of the need to maintain his speed within the speed limit on the road prior to his being stopped by the Police vehicle;

(v) when the Police vehicle caught up to him and indicated for him to stop by activating its flashing lights, the Appellant looked down at his speedometer and saw he was driving within the speed limit;

(vi) he was positively able to say that he was not exceeding the speed limit;

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(vii) he was aware that the speedometer of his vehicle was accurate as he had previously tested it for accuracy and again tested it after he was stopped;

(viii) he also observed approximately 800 metres ahead of him another vehicle travelling in the same direction as him ('the second vehicle').

2. The learned Magistrate erred in law and in fact in finding that there was insufficient evidence to displace the prima facie effect of Section 98A(3) of the Road Traffic Act as to the speed at which the Appellant's vehicle was travelling:

(a) by finding that there was a need for expert evidence to be given as to the operation of the Decatur Genesis II radar ('the radar') to displace the prima facie effect of the Prosecution evidence as to the speed and no such evidence had been given;

(b) by making no finding as to the following:

(i) evidence given by the Police Officers that the radar can record a phantom reading of the speed of a vehicle up to 5 kilometres ahead without the operator being aware of the existence of the other vehicle;

(ii) the existence of the second vehicle 800 metres ahead of the Appellant's vehicle;

(iii) excluding the recorded reading on the radar to be a phantom reading from the second vehicle.

3. The learned Magistrate erred in law in accepting the evidence of Police Constables Ian Keith Morris and Darryl Stewart Peden ('the Police Officers') as to the speed the Appellant's vehicle was travelling as measured by the radar and speedometer in the Police vehicle without giving adequate reasons for his finding when:

(a) he was critical of the balance of their evidence; and

(b) he found that the Police Officers' evidence to be inconsistent and confused as to where each said the Appellant's speed was checked by radar and on the Police vehicle's speedometer.

4. The learned Magistrate erred in fact and in law in failing to use or misusing the advantage he had in seeing and hearing the Prosecution witnesses namely the Police Officers and in deciding the issue of guilt on their evidence alone when:

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(a) he found the Appellant to be an honest witness;

(b) the evidence of the Police Officers was inconsistent as to the Appellant's manner of driving prior to his being stopped;

(d) the evidence of the Police Officers was inconsistent with:

(i) the evidence of the Appellant as to his speed and manner of driving prior to his vehicle being stopped;

(ii) the evidence of Alan Thomas Sobey who was driving on Depot Hill Road and was overtaken by the Appellant and the Police vehicle prior to the Appellant being stopped where both Police Officers denied his presence on the road and where the learned Magistrate made a finding that he was present.

(e) the learned Magistrate made findings that:

(i) he did not accept the Police Officers' evidence to the Appellant's manner of driving prior to his being stopped;

(ii) the Police Officers filled in the gaps in their evidence as to the Appellant's manner of driving prior to his being stopped; and

(ii) in doing so the Police Officers gilded the lily as to the Appellant's manner of driving prior to his being stopped.

(f) the Police Officers evidence as to distances travelled, the nature of the road and their vision of the roadway ahead was inconsistent with evidence depicted from a plan, (exhibit A), aerial plan (exhibit B), and photographs (exhibit C) tendered by the defence.

29 It can be seen that there is a considerable amount of overlap between the different grounds of appeal. However, as far as is possible, I will address each ground separately.

Ground 1

30 This ground relies purely on the evidence of the appellant and includes the primary proposition that the magistrate did not reject or

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criticise the evidence of the appellant, but found him to be an honest witness. In my view, counsel for the appellant has elevated an observation made in a particular context into a finding on credibility. The context was the conclusion drawn by the magistrate that the radar apparatus did, in fact, read 127 km per hour. One basis of that conclusion was the related finding that the police officers had offered the appellant the opportunity to look at the speed registered by the device; something which, in the magistrate's view, they would not have done if they had made up the speed. Another factor noted by the magistrate was that there had been no suggestion that the device had been manipulated to result in such a reading and he was unaware of any means of achieving such an outcome.

31 The magistrate had just expressed the view that the evidence of someone looking at their speedometer did not displace the reading of a speed measuring device when he made the comment that the appellant 'seems to be a truthful bloke'. In my view, what the magistrate was saying, in essence, was that even though the appellant may appear truthful, the evidence of the radar reading was not in fact displaced by the sort of evidence he gave. The magistrate then set out the problems relating to assessing speed with an analogue speedometer such as the age of the appellant's vehicle, the fact that each gradation in speed was 5 km and the fact that the accuracy had not been checked at the relevant time as had the police speed apparatus.

32 In my opinion, when the observation is considered in context it is not a finding that the appellant was in fact a witness of truth whose evidence should therefore be accepted in preference to any competing evidence, nor that it overcomes the prima facie evidence of the radar reading.

33 Turning to the broader question of whether the magistrate should have found that the prima facie effect of the radar reading was displaced, the evidence said by the appellant to achieve that purpose is set out in grounds 1(b)(i) - (viii). It is apparent that the first three pieces of evidence could not, individually, displace the prima facie evidence of the reading on the radar apparatus. These pieces of evidence do not relate directly to the appellant's speed. Nevertheless, in establishing the appellant's knowledge of the speed limit and the presence of the police, they provide an evidential basis for the proposition that the appellant is likely to have kept within the speed limit as he knew the police were on the road behind him. This proposition is, in fact, the fourth item on the list.

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34 However, the second item of evidence was a disputed fact which was not dealt with by the magistrate in his reasons. The appellant said he was intending to go to Mingenew but was not in a hurry. However, according to Constable Peden, the appellant mentioned that he was in a bit of a hurry. In my view, nothing turns on this point. The fact is that even people who are not in a hurry sometimes break the speed limit. They may be inattentive, unaware of their speed or deliberately driving in excess of the limit. I do not believe this piece of evidence, individually or together with other evidence, is a circumstance which identifies that the magistrate fell into error in determining that there was insufficient evidence to displace the presumption under s 98A(3) of the RTA.

35 The balance of items of evidence fall into three categories: evidence that the appellant checked his vehicle's speed during the journey, evidence that the speedometer indicated he did not exceed the speed limit and evidence of another vehicle on the road.

36 As to the latter item, the appellant gave evidence that he observed another vehicle approximately 800 m ahead of him and travelling in the same direction. The police witnesses disputed the existence of a vehicle ahead of the appellant and Mr Sobey had no recollection of seeing another vehicle ahead when he overtook the appellant. The significance of the appellant's evidence of another vehicle is not identified in relation to this ground of appeal. However, in ground 2, the existence of the vehicle 800 m ahead is raised in the context of there being a phantom radar reading. I will address the issue of the second vehicle in this ground of appeal and the issue of a phantom reading, which arises from the proposition that there was another vehicle ahead, in dealing with the next ground of appeal.

37 The issue of a second vehicle ahead of the appellant's vehicle was raised by the appellant. He said in his evidence that there was another car but he could not ascertain who it was or what it was. He added that the car was in front of him 'halfway down to Cossey's gateway', approximately 800 m or 1 km ahead. There is no suggestion by the appellant that this vehicle was speeding.

38 Sergeant Morris was clear in his evidence that he did not see any other vehicles. He further stated that when they spoke to the appellant at the side of the road no mention was made by him of another vehicle being present. The necessary requirement for the vehicle to be ahead removed any suggestion that the presence of Mr Sobey's vehicle could have been relevant to this question. The evidence of Mr Sobey was that he was

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behind the police vehicle when he saw the vehicles pulled over to the side of the road. Mr Sobey said that he saw the appellant walking from his vehicle back to the police vehicle but could not recall whether there was another vehicle in front of the appellant's at this time. Constable Peden was clear that when going up the hills to which he had referred in his evidence there were no other vehicles apart from the police vehicle and the appellant's vehicle.

39 Of course, the evidence of the police officers about not seeing a vehicle in front of the appellant's is undermined by the fact that they maintain they did not see any other vehicles. Mr Sobey's evidence, which was accepted by the magistrate, was that his vehicle was on the road at the time and that he was passed by the police first and then he passed them when they had stopped to deal with the appellant.

40 There was conflicting evidence about the existence of the vehicle ahead of the appellant's vehicle. No support for the appellant's assertion that such a vehicle existed was found in the evidence of the independent witness, Mr Sobey. The magistrate accepted Mr Sobey's evidence that he was on the road, was passed by the appellant and then the police vehicle, before later passing them both when they were stopped on the side of the road. However, Mr Sobey's evidence was that he had no recollection of another vehicle in front of the appellant's vehicle.

41 There was certainly a reasonable basis for rejecting the evidence of the second vehicle. However, the magistrate found it unnecessary to do so because the only issue which arose from the existence of the second vehicle was whether the reading taken by the police officer was a phantom reading rather than the reading from the appellant's vehicle. As will be seen, I have found that the magistrate's finding was open on the evidence and, in my view, there is no basis to interfere with that finding. Consequently, this particular item of evidence would not have assisted in displacing the prima facie effect of s 98A(3) of the RTA.

42 There are three remaining areas of evidence. The first is that, when the police indicated to the appellant to stop, the appellant looked down at his speedometer and saw he was driving within the speed limit. The second is that the appellant was positively able to say that he was not exceeding the speed limit. The third is that the appellant was aware that the speedometer on his vehicle was accurate as he had previously tested it for accuracy and again tested it after he was stopped.

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43 As to the first issue, the evidence of the appellant was that when he headed off towards the floodway he did not take particular notice of his speed. His guess was he was probably doing 80 or 90 km per hour and he would have been doing 80 km per hour going into the floodway. Coming out of the floodway the appellant saw Mr Sobey in front of him and he increased his speed to about 100 km per hour. The appellant said that he was 'faced with the problem' of passing Mr Sobey on the first straight. As he passed, the appellant said he checked his speedometer and he was 'right on 110'. He continued on and around the sweeping left hand corner and then on the third hill the road opens up and is straight. The appellant looked into the rear vision mirror and saw the light on the police vehicle had been activated and he pulled over.

44 The appellant said that his speed from when he overtook Mr Sobey to when he stopped was 105 to 110 km per hour. He said he made sure he was not over that speed by looking at the speedometer. When asked how frequently he was looking at his speedometer the appellant said it was probably only three times. The appellant stated that he had last looked at his speed at about 40 m before he got to the top of the hill around where he ultimately stopped and it was 110 km per hour. That was the last check that was made, according to the appellant. The appellant did not accept that he had been speeding. He denied that he exceeded the speed limit and pointed out to the officer that he had checked his speedometer when he passed Mr Sobey. In my view, it is improbable that, in order to deny the police officer's statement of the appellant's speed a short time ago, the appellant would refer to a speedometer check which was not the most recent,. This factor was not referred to by the magistrate in his reasons but is a sound basis to view the appellant's evidence on this issue with some caution.

45 Irrespective of this point, it is clear from the appellant's own evidence that the appellant did not, as alleged in the ground of appeal, look down at his speedometer when the police vehicle activated its flashing lights.

46 The fact that the appellant was able to give positive evidence that he was not exceeding the speed limit is in the category of evidence which, if accepted, is capable of displacing the statutory presumption. In Cazzol v Fuss (1988) 6 MVR 350, 352 O'Loughlan J held that to rebut the presumption it was necessary only for the driver to prove, on the balance of probabilities, that he was not driving at the alleged speed and there were several ways in which that proof could be forthcoming. The example given was that the driver and/or other witnesses could give

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evidence on oath that they were able to assert positively that the speed of the vehicle was at the limit or less. O'Loughlan J indicated that if that evidence is accepted then the driver would have discharged the onus. His Honour further explained that, by inference, such evidence might suggest that the unit was malfunctioning or it might suggest that the monitor of the equipment had given incorrect evidence.

47 However, it does not automatically follow that a statement from an apparently credible witness of checking the speedometer and observing a speed within the limit will result in a finding that the presumption has been displaced. In Cazzol v Fuss, the appellant said that before passing the radar he had reduced his speed to 60 km per hour and was travelling at that speed when he passed the radar unit. O'Laughlin J considered, 352, that the calibre of the appellant's evidence was not sufficient to meet the onus that he faced. His Honour observed that the magistrate could not help to be impressed by the fact that within 30 minutes of the appellant's apprehension, the radar had been tested and found to be functioning accurately. The appeal was dismissed. It is apparent that there remains the need to adduce cogent evidence of an actual speed less than or equal to the speed limit. Mere assertions may not be sufficiently cogent to discharge the onus.

48 The view of the magistrate in this case was that the evidence of a person looking at his speedometer does not really displace the reading of a speed measuring device. In my view, the magistrate was not suggesting that the evidence of the driver as to the reading of his speedometer can never discharge the onus. He was simply stating that in all the relevant circumstances including the nature, frequency and recency of the testing of the speedometer and the radar, the onus was not discharged by the appellant's evidence of his speed.

49 The final area of evidence included in ground 1 is the proposition that the appellant was aware that the speedometer of his vehicle was accurate as he had previously tested it for accuracy and again tested it after he was stopped.

50 He said that his vehicle was 9 years old and the speedometer was in reasonable condition but was not digital. It had a needle and 5 km per hour graduations in speed. According to the appellant, periodically he used to go through speed checks which were on the side of the road in the local area. He did not know what they were called but he described them as 'about six by six and on a trailer and it…flashes up digital what you're doing'.

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51 The appellant also gave evidence of a device on the front verge of a property where he had stayed in Coogee Road in Perth which he used to check the accuracy of his speedometer. However, the appellant indicated that he did not do that very often; probably once or twice a year. He said that his speedometer and the device both coincided so they were either both wrong or both right.

52 The appellant also said in his evidence that, after the event, he took the opportunity to test his speedometer on a device placed outside the hotel in Mingenew and the speeds coincided. According to the appellant, the local shire foreman was involved in setting the radar up for the public to check their speedometers but the appellant was unaware whether the unit was his. It is significant to note that there is no evidence as to when this occurred, other than it happened after the appellant was pulled over by the police.

53 The appellant did not produce any documentary evidence about the checks he alleged took place. Neither was he aware of the type, condition or accuracy of the radars. The appellant simply assumed that the devices would be reasonably correct. Neither did the appellant adduce any expert evidence, such as an RAC check, to show that his speedometer was correct at the time of the offence. This could have been done immediately or shortly after the incident, as the appellant was issued with an infringement notice and was immediately aware that his statements to the police had not been accepted.

54 Putting to one side matters of fact decided against the appellant, the evidence which is said to displace the presumption can be summarised as follows:

(1) The appellant was aware of the applicable speed limit, was in no hurry to arrive at his destination and was aware that there was a police vehicle somewhere on the road behind him. In those circumstances, it would have been prudent to watch the speedometer and remain with in the speed limit.

(2) The appellant checked his speedometer three times whilst on Depot Hill Road. He last looked at his speed at about 40 metres before he got to the top of the hill around where he ultimately stopped and it was 110 km per hour.

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(3) The appellant denied that he had exceeded the speed limit. Based on his checks of the speedometer he believed he was travelling at 110 km per hour.

(4) The appellant's speedometer was in a 9-year-old vehicle, was in a reasonable condition, was not digital and was in 5 km per hour increments.

(5) Prior to the incident, the appellant periodically went through road-side speed checks in the local area. Once or twice a year he would also take his vehicle through a speed check on a verge on Coogee Road in Perth. The reading on the appellant's speedometer and these speed check devices coincided. After the event, the appellant took his vehicle through the speed check outside the hotel in Mingenew and the readings coincided. No information was provided about the speed check devices and no dates on which the checks were undertaken were provided.

55 Where, as in this case, there are two competing sets of evidence which conflict in significant aspects, the magistrate is required to weigh the evidence of the appellant against all of the prosecution evidence and not merely the evidence of the radar reading itself. Only if that exercise is undertaken can the determination be made that the appellant has displaced the prima facie effect of the evidence of the radar reading. In ground 1, the appellant set out those parts of the appellant's evidence which are said to support the premise that the prima facie effect of the radar reading was, in fact, displaced. However, there is no mention of the weaknesses in the appellant's evidence and there is a complete failure to address the evidence in support of the radar reading. A very different picture develops if both those exercises are carried out.

56 In the course of addressing the items of the appellant's evidence which are said to displace the prima facie evidence of the radar reading, I have indicated where, in my view, the evidence cannot be put as high as is alleged in the ground of appeal. I have also attempted to identify the true extent of the evidence said to be capable of displacing the effect of the radar reading.

57 However, in considering the case against the appellant, it is important to recognise that the radar reading was not the only prosecution evidence.

58 Sergeant Morris was not only certified as competent with radars such as the Decatur Genesis 2, he was a qualified traffic patrol officer and a

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qualified pursuit driver. He had been 'into' radar for approximately 10 years and had been using radar since it has been in service with the WA police, for approximately three to four years. Constable Peden's work at Three Springs Police Station was predominantly traffic duties. He was certified as competent with the Decatur Genesis 2 and had two years practical experience in operating that particular model of radar. Both officers were qualified, capable and experienced in operating radars such as the Decatur Genesis 2.

59 The police officers also gave evidence about the operation of the radar unit both generally and in relation to the appellant's vehicle. Sergeant Morris said that all that is required when a vehicle is travelling in front of the police vehicle is to turn the mobile to a forward direction and the speed registers instantaneously on the radar which is in a fixed position on the vehicle. The radar is capable of giving readings up to 5 km away. The sergeant also explained that police vehicles are fitted with a digital and analogue display for the speedometer.

60 According to Sergeant Morris, after going through the floodway and around a sweeping left hand bend, he positioned the police vehicle approximately 50 m behind the appellant's vehicle. He observed the police digital speedometer and the analogue needle at a constant speed of 130 km per hour. At the same time, and as the police vehicle was in a position where the speed and distance was constant between the two vehicles, Constable Peden activated the Decateur Genesis 2 radar, which displayed a speed of 127 km per hour. Sergeant Morris then activated the police emergency lights and the appellant's vehicle pulled over to the left on to the gravel shoulder. When speaking with the appellant and in accordance with his standard practice, Sergeant Morris offered to show the appellant the radar reading but the appellant declined. Sergeant Morris view was that there was no obstruction in taking the measurements of speed; there was no other vehicle in their line of sight and there were beautiful conditions for radar.

61 Constable Peden's evidence was that he prepared the radar for the same direction mode on the way down to the floodway. He said that when the police vehicle rounded the left-hand bend, which was after the floodway, they were able to speed check the appellant's vehicle and he was able to lock the radar on to the vehicle. He said that they were probably 50 to 100 m behind the vehicle when they were able to do the speed check and he was able to do the radar check. He confirmed that the radar apparatus recorded a speed of 127 km per hour, which was then locked into position. Sergeant Morris activated the lights on the police

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vehicle and the appellant came to a stop. Constable Peden also confirmed that there was no vehicle between the police vehicle and the appellant's vehicle.

62 The appellant disputed that the police vehicle could have been in a position where the speed and distance was constant between the two vehicles. He said in his evidence that he found it hard to imagine that at some point the two vehicles were equally distant because the road has so many bends and twists. The magistrate rejected the appellant's challenge to that evidence. He referred to the fact that the appellant found it hard to see where the vehicles could possibly match speeds, although there was mention of several small straights, as the hill or rises are negotiated. The magistrate then noted that the appellant was not aware that the police vehicle was behind him until he saw the lights, despite his evidence that he regularly checked his mirrors. The magistrate concluded that the fact that the appellant did not see the police behind him did not mean that they were not behind him matching speeds. It was certainly open to the magistrate, on the evidence to which he referred, to reject the appellant's position for the reasons he gave which, in my view, disclosed no error principle or reasoning.

63 It is also the case that the radar used to check the appellant's speed had been tested before the reading was taken on the appellant's car. It was also used to test the analogue display, which was also calibrated before and after the event, as well as the digital display.

64 Sergeant Morris' evidence was that on 4 March 2006 and 2 April 2006 he had checked the calibration of the analogue part of the vehicle and it was correct within tolerance; that is, within the 10% range that the manufacturer allows. Consequently, it was checked both before and after the event. The log book recording that check was produced in evidence. Sergeant Morris also told the court that at 8.14 am, prior to starting the patrol, he was present when Constable Peden checked the radar in accordance with the manufacturer's specification and it was found to be working correctly. With the use of two tuning forks, Constable Peden tested the apparatus in a stationary mode, utilising each tuning fork separately. He then tested it in a moving mode and then in a forward mode, which was the one used for the detection of the appellant's speed. According to Sergeant Morris, all tests were correct and completed in accordance with the manufacturer's specification as they are taught.

65 Constable Peden confirmed in his evidence that at 8.40 am on the relevant day he tested the radar in accordance with the manufacturer's

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specifications and found it to operating correctly. He produced the 'contact sheet' to confirm the time of testing that morning. Senior Constable Peden described turning the machine on and then checking the light emitting diodes. He said that once they all shine the radar is tested using tuning forks for stationary mode, same direction mode and different direction mode. Then once the tests have been completed with the tuning forks there is a test button which goes through the Doppler sounds and through the different figures and checks the internals of the itself. The constable said that, although he was not an expert on the actual workings of that type of radar, he had been trained to use it.

66 Sergeant Morris made the point that, because the vehicle has both a digital and analogue speedometer display, when doing the appropriate checks they are in fact checking things 'three ways': by the radar, the digital display and the analogue display.

67 Apart from the issue of whether the police were behind the appellant matching speeds, which was resolved in favour of the police evidence, none of this evidence to which I have just referred was contested by the appellant and it was open to the magistrate to accept it.

68 In reaching the conclusion that the presumption was not displaced, the magistrate did not rely simply on the uncorroborated evidence of the police officers as to the speed of the appellant's vehicle at the relevant time. He referred to the appellant's evidence of the incident and found certain facts in his favour, such as the manner of his driving when first observed. The magistrate also included in the material the peripheral issues where there was conflicting evidence, such as the presence of Mr Sobey and the terms of the conversation between the police and the appellant. Before accurately referring to the test to be applied, the magistrate posed this question: 'I have to ask myself, does all that displace the prima facie presumption under s 98A?' He concluded that it did not. The magistrate referred to the inconsistencies in the police evidence before focusing on what was the key to the conclusion that the evidence of the appellant did not displace the prima facie evidence as to his speed.

69 The magistrate noted that the appellant did not want to look at the speed on the radar. He found that it was displayed there for him and Sergeant Morris offered to show it to him. The view taken by the magistrate was that if the police had completely made up the appellant's speed, that offer would not have been made. The magistrate noted that he was not aware of how else a radar can be made to read 127 km per hour

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when it has not actually taken that speed from a vehicle. Further, the magistrate correctly noted that there was no cross-examination to the effect that the police had deliberately manipulated the radar so that it read 127 km per hour. Therefore, the conclusion of the magistrate, which was clearly open to him on the evidence, was that there was inferential evidence that the radar did, indeed, read 127 km per hour and that it had not been manipulated to do so. That conclusion was not based solely on the evidence of the police officers. It was based on a fact with which both the appellant and the police officer concurred: that the police gave the appellant the opportunity to read the speed on the radar. From that fact, the necessary inference was drawn that the radar had at that time actually recorded a vehicle travelling at that speed.

70 That being the case, the magistrate stated that he was unable to find that 'the snippets and bits of inaccuracies' taken together, even with the appellant looking at his speedometer, displaced a speed measuring device. The magistrate explained that the speedometer was on a 9-year-old car, that it was an analogue device, and that the reading increased in 5 km divisions. With respect to the appellant's evidence of the testing of the speedometer in his vehicle, the comment was made that, even if it has been accurate before, it may not have been accurate at the time the radar reading was taken. This is a reference to the fact that the appellant was unable to give any indication of when the speedometer was last checked. The magistrate expressed scepticism at the proposition that someone looking at their speedometer could displace a speed measuring device. Another factor the magistrate took into account was that the reading on the radar was matched with the analogue read out from the well-monitored speedometer in the police vehicle. He omitted to mention that there was a further match with the digital read-out from the speedometer.

71 The magistrate formed the view that the strength of the prima facie evidence of the speed of the appellant's vehicle was not displaced by the evidence adduced by the appellant. The factors specifically identified in the ground of appeal, where they were accurately stated and accepted by the magistrate, were not disregarded and neither individually nor collectively were considered to be sufficient to displace the prima facie evidence of guilt. In my view, the magistrate's decision was reasoned and justified on the evidence. I am not persuaded that he fell into error in the way alleged in this ground of appeal.

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Ground 2

72 In this ground, the magistrate's error in finding that there was insufficient evidence to displace the prima facie effect of s 98A is said to have arisen from the finding that there was a need for expert evidence as to the operation of the Decatur Genesis 2 radar. It is also said to arise from the magistrate's failure to make a finding that there was a phantom reading. In particular, it is said that the magistrate excluded the possibility of the recorded reading being a phantom reading from a second vehicle when he failed to make a finding as to the existence of a second vehicle 800 m ahead of the appellant's vehicle.

73 As to the first issues raised, the relevant passage of the magistrate's reasons is as follows:

So there are all sorts of things that could be relevant to doubt a radar. It could be an expert to tell us that the Decatur Genesis 2 is fatally flawed. It may be an expert giving evidence about certain weather conditions affecting a radar. It could be someone giving evidence that there were two vehicles together and there is a possibility or a doubt as to the speed. There are all sorts of scenarios.

74 A simple reading of this passage, in particular the final sentence, displays the fallacy in the appellant's proposition that the magistrate made a finding that there was a need for expert evidence as to the operation of the radar apparatus. Immediately before the relevant part of the magistrate's reasons, he had stated, in relation to s 98A(5) of the RTA, that the provision shows how the prima facie evidence of speed can be displaced by the introduction of any competent evidence. The magistrate was merely referring to a number of scenarios, by way of example, which would raise a doubt about the accuracy of the radar reading. As counsel for the respondent observed, the magistrate was essentially repeating some of the examples set out in Davis v Armstrong which had been drawn to his attention in closing submissions.

75 The magistrate then referred to the evidence which was said by the appellant to achieve the effect of raising a doubt about the accuracy of the radar reading. Nowhere does the magistrate state that there was a need or a requirement for expert evidence to displace the prima facie evidence of speed and nor can such an inference be drawn from anything else which was said.

76 The second issue raised by this ground of appeal is the magistrate's failure to draw a conclusion about there being a second vehicle ahead of

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the appellant, and the effect of that omission on making a finding about phantom radar readings.

77 The appellant was the only witness who gave evidence of seeing a vehicle on the road approximately 800 m ahead of him and travelling in the same direction. He did not allege that this vehicle was speeding. As noted when addressing ground 1, the evidence of the police officers was that there was no vehicle ahead of the appellant's vehicle and Mr Sobey had no recollection of such a vehicle.

78 The appellant also gave evidence of phantom readings. He was at pains to indicate that he had more experience in matters relating to radar readings than the average person. The appellant referred to his experience as chief fire control officer and civil defence and emergency operator, as a result of which he has been in police vehicles on several occasions. He stated that he had radar experience for about 15 years, adding that 'we have radar ourselves on tractors and we do that for accuracy'. No information was provided as to the nature of the 15-year radar experience, other than the reference to having radar on tractors. Neither was information provided by the appellant on the use and purpose of radar on tractors. The appellant also stated that he had experience with the Mingenew racetrack and alleged that patrol cars would be used to get a reading on the straight for media purposes. This appeared to be the basis of the appellant's knowledge of phantom readings. Although the magistrate didn't comment on the nature and extent of the appellant's experience, the view I formed was that the appellant was attempting to make much of very little. The appellant described phantom readings in these terms:

…and a reading will come up and you might say to the driver, 'Who's that?' And they'll say, 'Well, don't know. We'll see soon', and then you go on for, you know, a period of time, whether it be 10 or 15 seconds and a car will appear.

79 The appellant maintained he had personal experience of observing a phantom reading. He said: 'Well, it's only phantom to the operator. You can't see a car in the distance but the radar does obviously.'

80 With respect to the area in which the radar reading was alleged to have been taken, the appellant described it as a series of rises and valleys with room for vehicles to be out of view between those two hills. He also emphasised the fact that when on one hill you can see over the second and third and down the road towards Mingenew.

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81 The possibility that the radar reading was a phantom reading was raised by counsel for the appellant during cross-examination of Sergeant Morris. Sergeant Morris agreed with the following definition of a phantom reading put to him by the appellant's counsel:

Now, phantom reading can be of another vehicle on the road ahead of you where the radar detects and gives a reading on that vehicle but you don't see that vehicle.

82 Sergeant Morris also agreed with the following definition:

Yes, and as far as a phantom reading is concerned, you know that the radar has detected the speed of a vehicle but you don't know of its existence, hence a phantom reading.

83 Sergeant Morris was questioned about the operation of the radar if there is more than one vehicle ahead. Sergeant Morris made it clear from the outset that he would not let the radar be operated unless the police vehicle was on a straight stretch of road with only one vehicle in sight. He emphasised that he was sitting approximately 50 m behind the appellant's vehicle on a straight stretch of the road.

84 The sergeant also stated that he could exclude that the reading he had on the radar was a phantom reading. He did not dispute, as was put to him, that there may have been a vehicle 1 km ahead of the accused but he said that this vehicle would have been going downhill. Based on the balance of his evidence on the operation of the radar, a car going downhill would not have registered on the fixed radar pointing ahead. Sergeant Morris disagreed with the proposition that in cases of phantom readings, not only might the radar operator not see the vehicle, but a phantom reading can be obtained from a vehicle that's ahead but hidden by bushes or trees and travelling away from the police vehicle.

85 Constable Peden was not questioned about the possibility of a phantom reading. However, he said that he saw no other vehicle between when he sighted the appellant's vehicle and when both vehicles stopped.

86 There was other evidence before the magistrate relevant to the question of whether the radar reading was of an unidentified vehicle further along the road.

1. Sergeant Morris said that the radar was in a fixed position in the police vehicle and the beam of the radar was a constant straight beam which can give a reading of a vehicle up to 5 km away.

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2. Both Sergeant Morris and Constable Peden stated that the police vehicle was 50 to 100 m behind the appellant's vehicle when the radar reading was taken;

3. Both Sergeant Morris and Constable Peden indicated that the road was straight where the radar reading was taken.

4. Both police officers said that there was no vehicle between the police vehicle and the appellant's vehicle at the time the radar reading was taken and there was no obstruction to taking measurements of the appellant's speed with the radar;

5. Constable Peden said in his evidence that he was able to lock the radar onto the appellant's vehicle.

6. Neither Sergeant Morris nor Constable Peden saw any vehicle on the road ahead of the appellant where he was stopped. Constable Peden explained that it was too hard to see any other traffic ahead because there is a hill there.

7. Mr Sobey, who unlike the police officers, recalled both the police vehicle and the appellant's vehicle, had no recall of another vehicle in front of the appellant's at the time the appellant pulled over.

87 These factors are consistent with the reading being taken of the appellant's vehicle. In fact, the only evidence of another vehicle came from the appellant who was unable to provide any information about the other vehicle apart from the fact that it was approximately 800 m ahead. He gave no evidence that the vehicle was speeding.

88 In referring to the possibility of phantom readings the appellant described the area as a series of rises and valleys with room for vehicles to be out of view between those two hills. He further explained that you can see over the hills. No doubt the intended implication was, firstly, that there could have been another vehicle ahead of the appellant which was obscured by the rises in the road and, secondly, that because one can see over the hills, a radar reading could be taken of a vehicle further ahead. However, there was, in fact, no evidence before the court that a radar reading could be taken of a vehicle obscured by hills or rises in the roadway. The evidence of Sergeant Morris was that a reading could not be taken where the target was obscured and that the fixed radar was directed straight ahead. He stated that, even if a vehicle was 1 km ahead, it would not account for the reading because the vehicle would have been

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going downhill and hence could not be detected by a radar beam pointing directly ahead.

89 In fact, the definition of phantom reading with which the witnesses agreed involved the radar registering a reading in circumstances where there is nothing to account for the reading. The suggestion that such a reading occurs where there is a vehicle ahead which cannot be seen was made by the appellant but was not the subject of expert evidence and was refuted by Sergeant Morris. Sergeant Morris disagreed with the proposition that a phantom reading can be obtained from a vehicle that is actually ahead but hidden by bushes or trees and travelling away from the police vehicle.

90 In his reasons the magistrate accepted that the appellant's vehicle was under observation and that the speed on the radar was taken before the appellant's vehicle went up the hill. He then concluded that these facts displaced any phantom vehicles within range of the radar. Clearly, the magistrate made a finding that the reading on the radar was not a phantom reading. In my view, that finding was open on the evidence to which I have referred and was entirely reasonable. In view of the evidence of the terrain and the evidence of the police officers that radar readings cannot be taken through obstructions, even if the magistrate's view was that there was a second vehicle ahead of the appellant and the maximum possible range of the radar was 5 km, that would not preclude a finding that the reading taken in the circumstances to which I have referred, was not a phantom reading.

91 For these reasons I have concluded that there is no substance in this ground of appeal.

Ground 3

92 In this ground the appellant alleges that the magistrate erred in accepting the evidence of the police officers as to the speed of the appellant's vehicle when he was critical of the balance of their evidence and he found that the police officer's evidence was inconsistent and confused as to where each said the appellant's speed was recorded by radar. Criticism is also levelled at the magistrate for failing to give adequate reasons for his finding.

93 The starting point in the consideration of this ground of appeal is that the magistrate was obliged to accept the radar reading of the speed of the appellant's vehicle as prima facie evidence of that fact.

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94 The allegation that the magistrate found the evidence of Sergeant Morris and Constable Peden to be inconsistent and confusing as to where the appellant's speed was measured is unfounded in so far as it suggests that there was inconsistency as to the actual location. The magistrate did observe that the two officers gave slightly different evidence about the point along the road where they were able to match speeds and get both a radar and a speed reading. However, when that observation is read in context, it is apparent that the magistrate considered that the difference was in the description of the location rather than the actual location itself. Immediately following the observation about 'slightly different evidence', the magistrate said that he thought the confusion in the terminology used to describe the terrain was more responsible for the difference than anything else. Earlier in his reasons the magistrate said that he thought there had been a misunderstanding between all the witnesses as to what a hill is and what a rise is. Even the appellant drew attention to the fact that the term 'hill' was a generous description of the terrain. In his evidence he referred to the three 'hills' as the 'camel humps'. He said, 'So those three there are perhaps not hills, they are certainly rises …'. The appellant's point was that vehicles could be hidden between the rise. In my opinion, the evidence supports the magistrate's conclusion that there was a mere difference in terminology of the terrain.

95 When asked about the configuration of the roadway, Sergeant Morris agreed that there were hills or a number of rises and falls. Sergeant Morris also indicated that there was a sweeping left bend coming out of the floodway. His recollection was that there were three hills along the road after the sweeping left bend. As has been noted, the radar reading was taken after Sergeant Morris positioned the police vehicle approximately 50 m behind the appellant's vehicle on a straight stretch of road after he had driven around a sweeping left-hand bend and before the first of the three hills. According to Sergeant Morris, the appellant stopped just over the third hill.

96 The plan of Depot Hill Road which was tendered into evidence shows three hand drawn lines across the road which represents the three hills referred to by Sergeant Morris and the accused. Between the sweeping left-hand bend which is marked in blue on the plan there is a straight area of road before the first of the hand drawn lines. It is apparent from the evidence of Sergeant Morris that this is the area of road where he held the position of the police vehicle 50 m behind the appellant, the radar reading was obtained and the speedometer readings checked. Sergeant Morris was unable to say at exactly what point he activated his lights but,

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based on where the vehicles stopped which was just over the third hill, he thought it 'would have been just near the crest of the third hill'.

97 Constable Peden described the river crossing as a right-hand bend with a left-hand bend about 2 to 3 km further ahead. According to Constable Peden, when the police vehicle rounded that second bend they were probably 50 to 100 m behind the appellant and were able to lock the radar on to his vehicle. The location described by Constable Peden of where the appellant's vehicle was speed checked is the same location identified by Sergeant Morris. Constable Peden stated that when Sergeant Morris activated the lights on the police vehicle, the appellant pulled over. When asked where that happened, Constable Peden said it was after rounding the right-hand bend the road goes up the hill and it was more or less towards the top of the hill that the police stopped the vehicle. Constable Peden was unsure what was meant when he was asked which hill he was referring to. He was reminded that he had referred to two hills. Constable Peden said it was the second hill but added that he was talking about large hills. Constable Peden then said that after a dip in the road it rises up to the first hill and then there is probably 200 to 300 m to the left-hand bend, then there is a sort of a rise in the land which 'I would guess you would class as a hill' and it's about 800 or 900 m to the top of that hill.

98 Constable Peden said that you actually come down a hill into the creek area and then there is a hill heading out of the creek area. When asked how many hills he recalled he said that he did not know because there are several hills through there. However, he said that once you come out of the dip, which would appear to be a reference to the creek or floodway, there is a hill that goes up and around to the left and then there's another hill further up which is about 800 or 900 m once you go around the left-hand bend.

99 Constable Peden confirmed in cross-examination that the appellant's vehicle stopped on the top of the second hill. An attempt was made by counsel for the appellant to have Constable Peden accept that Sergeant Morris was wrong if he said the appellant's vehicle came to a stop beyond the third hill. Constable Peden kept pointing out that there were several hills in the area there.

100 Counsel showed Constable Peden some photographs and put to him that, on his evidence, the second hill was past the floodway and the first one is before the floodway. Constable Peden replied that it was not his evidence; his first hill was after the floodway. He added that he had said

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that they went through the floodway and then there was the first hill with the right-hand sweep and then there was the second hill and they were his first and second hills. Constable Peden maintained that a speed check was done towards the top of the hill that he refers to as the second hill and he emphasised that, as far as he was concerned, there was a hill for the left-hand bend and then there is another hill to the right-hand side. On my understanding, Constable Peden's first hill is the area up to and just past the sweeping left-hand turn and the second hill is that area of the plan to the far right past where the road veers around to the right. Again, that evidence is consistent with Sergeant Morris' version of events.

101 For much of the cross-examination of Constable Peden, he and counsel for the appellant were at cross purposes as a result of a very different idea of what constitutes a hill. At all times it is apparent that Constable Peden's hills are much larger areas of land than any mere rise or fall in the level of the road, lending support for the magistrate's observation that there was a misunderstanding between the witnesses as to what was a hill and what was a rise. All witnesses, including the appellant and Mr Sobey were consistent in indicating that the vehicles pulled over somewhere just off the plan.

102 I am not persuaded that the magistrate actually found the police officers' evidence to be inconsistent and confused concerning where the appellant's speed was tested. He was, therefore, quite entitled to accept their evidence on this point.

103 The proposition that the magistrate's criticism of 'the balance of the evidence of the police officers' should result in the prima facie evidence being displaced does not withstand scrutiny. It should be kept in mind that 'the balance of the police evidence' is all evidence other than that relating to the location where the radar was used to check the appellant's speed. In fact, the magistrate was only critical of two peripheral aspects of the police evidence. The first was the evidence relating to the manner in which the appellant drove his vehicle out of Strawberry North East Road on to Depot Hill Road. The second aspect was the terms of the conversation with the appellant after he had stopped on the side of the road.

104 As noted above, Sergeant Morris said in his evidence in chief that he observed the appellant's vehicle turning right out of Strawberry North East Road. He further noted that both roads were sealed with a gravel shoulder. Sergeant Morris explained that parts of Strawberry North East Road are unsealed and then it becomes sealed. He said that, as the

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appellant's vehicle was coming down to the section that was sealed, 'it was bringing all the rocks…'. Sergeant Morris stated that the vehicle appeared to him to be travelling excessively fast. He drew that conclusion from the fact that, when turning the corner, the rear of the vehicle slid or slewed momentarily to the left and rocks and gravel were being strewn from the rear of the vehicle.

105 Under cross-examination Sergeant Morris maintained that evidence, explaining that he had no reason to apprehend the appellant after that if he had not driven in that way. It appears that Sergeant Morris' meaning was that it was for this reason that he followed and attempted to catch up with the appellant.

106 Sergeant Morris also dealt in his evidence with the appellant's driving after turning onto Depot Hill road. He said that the appellant then accelerated heavily travelling east and went through a floodway where there was a cautionary speed sign of 60 km per hour. Sergeant Morris said that he believed the appellant was driving the vehicle carelessly or heading close to a dangerous speed when travelling through the floodway.

107 In cross-examination Sergeant Morris agreed that, because of the bend in the road before the floodway and the consequent loss of vision, he did not actually observe that appellant's vehicle go through the floodway and did not know at what speed the appellant was travelling. However, Sergeant Morris observed that the speed of the appellant's vehicle as it was travelling through the floodway was too quick for the police vehicle to keep up with.

108 When asked whether he had raised that aspect of the appellant's driving with him, Sergeant Morris said that when he stopped the appellant he explained why he had been stopped and he brought it up then. He said to the appellant, 'Is there any reason you were driving so fast?' and he actually used the word 'dangerous' in describing the appellant's driving.

109 Constable Peden's evidence was that he saw the appellant's vehicle turn right from Strawberry North East Road on to Depot Hill Road, heading towards Mingenew. The vehicle sped off in front of them after cutting the corner. Constable Peden was aware that in that area there was a river crossing with a recommended speed of 60 km per hour. He said that Sergeant Morris took chase and sped to catch up with the vehicle. The vehicle had gone through the river crossing above the 60 km per hour recommended limit.

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110 Constable Peden was cross-examined about the appellant's driving. Constable Peden said that from the time the appellant was first observed the appellant's vehicle was not stationary. The appellant's vehicle came around the bend from Strawberry North East Road at speed and cutting the corner. The police vehicle accelerated to follow it and Constable Peden saw the appellant's vehicle again on the second left hand bend. The appellant actually cut the corner there too and hit the actual gravel. The constable was referring to the two left-hand bends approaching the creek crossing followed by the right hand bend at the creek crossing. Constable Peden was adamant that the appellant was speeding and cutting corners. Constable Peden said that he did not see the appellant go over the floodway.

111 The appellant gave an entirely conflicting account of his manner of driving, in particular the manner in which he entered Depot Hill Road. According to the appellant, when he got to the T-junction, he took the opportunity to stop there momentarily, about a car-length from the intersection. This was because his mobile phone had buzzed and he stopped to check it and found he had missed a call. After a couple of seconds he continued. The appellant said that it was quite a dangerous intersection to the right because of the limited view and he therefore looked back to the left before turning. It was at this point that he first saw the police vehicle.

112 According to the appellant, it was not possible to spin his wheels or spin up gravel and dust. Neither did he cut the corner at speed. The appellant maintained that there was no gravel on that section of the road. The gravel was 31 m back from the Depot Hill Road. He did not mention and was not asked about the surface of the shoulder of the road. The appellant produced a photo said to establish that from where the police car would have been the gravel part of Strawberry East Road is not visible because the vegetation is eight feet high and a car is not visible. In fact, the roof of the car is just visible.

113 The magistrate referred to the difference between the evidence of Sergeant Morris and the appellant as to his manner of driving as he entered Depot Hill Road. In particular, he referred to the photo taken by the appellant which shows that the view is limited and that a standard sized vehicle cannot be seen on the gravel area. He noted that it was hard to imagine how Sergeant Morris could have possibly observed gravel from the distance at which he must have seen the car.

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114 It would appear from the magistrate's reasons that he concluded that if gravel was being strewn behind the appellant's vehicle that would have to have occurred further back on the section of the road which was unsealed. However, as that could not have been seen according to the photographic evidence, the magistrate concluded that it had not happened. However, if what Sergeant Morris saw was gravel from the shoulder of the road, the vehicle need not have been so far back.

115 In relation to the evidence of Constable Peden on this point, the magistrate did not accept that the appellant would come out of an intersection without stopping and cutting the corner from a road that he knew by experience comes around a bend where people fly past. He also referred to the appellant's steadfast insistence that he knew he was being followed. It should be noted that the appellant was not being followed at the point where he entered Depot Hill Road, although he did say that he saw a stationary vehicle 200 m back up the road.

116 The magistrate also referred to the sergeant's opinion that the appellant must have driven dangerously to have crossed the floodway. In the magistrate's view, as the sergeant did not see the appellant on the floodway he must have come to that opinion either from the manner in which he observed him entering the intersection and inferences as to him not catching up. Reference was made by the magistrate to the fact that, despite the cautionary sign to reduce speed, the appellant was well familiar with the floodway and presumably knew how to negotiate it safely.

117 Although I have my reservations as to whether the magistrate properly understood the police evidence of the appellant's manner of driving as he turned into Depot Hill Road, he concluded that there was nothing untoward about the appellant's driving at this point or through the floodway. That being the case, the magistrate made the observation that, in his view, the police officers appeared to have attempted to guild the lily as to the speed. At another point he expressed the view that the police officers were filling gaps that they did not need to of things they had forgotten because of the passage of time. The reference to the fact that the police 'did not need to' was a reference to the fact that the manner of driving to which the police officers referred was not the subject of any charge; it was merely the explanation for following the appellant's vehicle. The magistrate concluded his view on this issue in the following way:

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I am of the view that although there were some niggling worrying inconsistencies in the evidence, basically they followed him. They thought something was wrong. They thought they saw him speeding out of the entrance way, but I don't think they had enough of a view. It might have been a mistake on their part but they had him under observation long enough for the radar to lock on.

118 It appears from this conclusion that the magistrate accepted that the police officers actually thought there was something wrong with the appellant's driving. That is despite the fact that the magistrate did not accept that the appellant cut the corner at speed and sprayed gravel when entering Depot Hill Road. The explanation that he gives for the 'niggling worrying inconsistencies' is that it might have been a mistake. This assessment of the evidence in relation to this issue is made towards the end of the magistrate's reasons just before he makes his decision as to the charge. In my view, the comment about 'gilding the lily' must be considered in the context of these latter remarks.

119 The final sentence refers to the fact that 'they had him under observation long enough for the radar to lock on' and indicates that the magistrate recognised that the evidence central to the charge before him was the radar reading taken by the police officers and not the evidence of why the police officers decided to follow the appellant in the first place. This view is reinforced by the magistrate's comment that the police officers might well be 'filling gaps that they do not need to', thereby indicating that the 'gaps' related to peripheral or collateral matters.

120 It is clear from the magistrate's reasons that not only did he consider that the 'niggling worrying inconsistencies' related to peripheral issues but that they did not adversely reflect on the police officers' credibility generally. Such a view is entirely consistent with the magistrate's final view of the evidence on this issue; that the police officers thought something was wrong with the appellant's driving when they decided to follow him but they may have been mistaken.

121 The second area of inconsistency between the police evidence and the appellant's evidence was in relation to the conversation between Sergeant Morris and the appellant after the appellant was pulled over. The appellant said that he wrote down the conversation with the police in his diary but it appears that he was not asked to produce the diary to confirm the accuracy of his evidence. He stated that Sergeant Morris got out of the police vehicle and identified himself, his rank and his station. He told the appellant that he had checked him at 130 km per hour to which the appellant said, 'Oh, fair go'. The appellant did not accept that

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he had been speeding. The appellant pointed this out to the sergeant and added that he had checked his speed when he passed the utility and he was 'right on target'. Sergeant Morris' response was, 'Well, we've got you for this' and started to write and the appellant could see that 'it was pointless saying anything because he was pretty serious about it and he could see that he would only inflame the situation'. The appellant agreed that he was offered to view the reading on the radar apparatus but declined.

122 The appellant described the officer's attitude as less than ideal and not friendly. He disputed Sergeant Morris' description of him as hostile, saying that to be hostile was not in his nature. The appellant was asked about whether he said that he had heard about the police from a mate in Queensland or made a comment about the inaccuracy of police radar. The appellant said that he had been at a seminar over east where he met a friend of his from Queensland and the subject had come up. However, the appellant said that occurred a week after this event. The appellant maintained that he had never raised the issue and the police were the ones who raised it. In my view, it is highly improbable that the police happened to attribute to you at the time of the incident, a statement of events which later actually occurred.

123 According to the appellant, Constable Peden breath tested him and then walked around the vehicle whilst Sergeant Morris was writing out the ticket. When Constable Peden came back around he asked, 'How did the old girl go?' The appellant said, 'No, she's fine. But it could do with a wash'. According to the appellant, this was a good natured conversation.

124 Sergeant Morris' evidence was that he introduced himself to the driver of the vehicle and explained to him why he had been stopped. Sergeant Morris then asked the appellant if there was any reason for his excessive speed but he offered no reason, continually stating that he had heard about 'you guys'. According to Sergeant Morris, the appellant was very hostile to him and continually stated, 'I've heard about you guys'. He denied that he was aggressive to the appellant.

125 In cross-examination Sergeant Morris said that he also brought up the issue of how the appellant had been driving when first observed by the police. Sergeant Morris said to the appellant, 'Is there any reason you were driving so fast?' and he used the word 'dangerous' in describing to the appellant what he had observed.

126 Sergeant Morris' evidence was that he asked the appellant if he would like to see his reading on the radar but he declined. According to

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Sergeant Morris, the appellant then said, 'I've heard about you guys from mates in Queensland.' Sergeant Morris then proceeded to write out the traffic infringement notice, which he handed to the appellant.

127 Sergeant Morris denied that he told the appellant he had 'clocked' him at 127 km per hour. He maintained he would not have used that word but he would have told the appellant he had been detected on radar at that speed. Sergeant Morris also denied that the accused said, 'Fair go, I took special notice of my speed when passing the ute because I noticed you when I entered the junction.' Sergeant Morris further maintained that the appellant had made no denial of the speeding allegation but he had said, 'I'm better than you guys.' It was also suggested that the fact the sergeant offered to show the appellant the radar reading meant that the sergeant was aware that the appellant was disputing the speed. Sergeant Morris explained that it was his practice to show it to everyone. He again dismissed the idea that the appellant was disputing the speed.

128 Sergeant Morris said that during his conversation with the appellant Constable Peden was standing by taking notes. According to the running sheet, apart from a random breath test a vehicle registration was the only other check carried out. However, Constable Peden said that it was routine to check the tyres and the licence. Constable Peden's assessment was that they were at the side of the road for perhaps two to five minutes.

129 According to Constable Peden, the appellant mentioned that he was in a bit of a hurry and had lots of things to do and not much time to do them. He said the appellant became fairly aggressive or agitated and at the time he mentioned something about the police radars not being accurate and then something about a friend from Queensland who said that radars do not work. Constable Peden denied that Sergeant Morris was aggressive but said that the appellant was hostile. He denied that Sergeant Morris kept interrupting him.

130 Constable Peden maintained that at no time did the appellant dispute the speed at which the police alleged he was travelling and neither did he view the speed when the offer was made for him to do so. Constable Peden specifically rejected the proposition that the appellant denied he was speeding. He had no recollection of the appellant saying, 'Fair go, I took special notice of my speed. I took special notice of my speed when passing the ute.' Constable Peden completely denied a discussion about inspecting the vehicle and being asked whether it passed.

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131 It is clear that both the police witnesses and the appellant agreed that the appellant was given the opportunity to view the radar reading but declined. It is also the case that the appellant maintained that he disputed that he was speeding but the evidence of the police officers was that he did not dispute it. I note, as did the magistrate in his reasons, that the general traffic infringement notice issued by Sergeant Morris identifies the appellant's explanation as, 'No, bullshit.' Although no witness was cross-examined on this, and the appellant did not state that he said these words, they are clearly consistent with the appellant disputing that he was travelling in excess of the speed limit.

132 In his reasons the magistrate addressed this discrepancy in the following way:

I have evidence of two sworn officers and I accept that it may be flawed by the passage of time. The description of the conversation, I notice that 'bullshit' was written. 'No, bullshit' was written on the infringement penalty but there was no evidence given of that by anybody and yet it was recorded on the summons.

133 The magistrate heard the evidence of both police witnesses. He was confronted by a situation where the documentary evidence of the appellant's response was never put to the two police officers. They did not have the opportunity to comment on the proper context and meaning of the words or to explain any inconsistency with their evidence. The magistrate expressed the view that the evidence of the police witnesses on this issue may have been 'flawed by the passage of time'. In the circumstances, the magistrate was in the best position to determine issues of credibility and the view he expressed was one he was entitled to draw.

134 As I have already noted in relation to the inconsistency concerning the appellant's manner of driving, implicit in the magistrate's final comment on the inconsistencies was that they only went to issues which were not central to the case against the appellant. It is well established that a magistrate is entitled to accept the evidence of a witness in whole or in part: Cubillo v Commonwealth of Australia(No 2) [2000] FCA 1084; 103 FCR 1, [118]. A magistrate is not even obliged to explain why he or she has believed a witness on some matters and not on others, although, in my view, in this case the magistrate has clearly explained his reasons as indicated above. In Garrett v Nicholson [1999] WASCA 32; 21 WAR 226, [73] - [74] the court held that a magistrate's reasons for decision will be sufficient if, when looked at as a whole, they disclose the reasoning process which led to the end result with sufficient certainty. I consider

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that the magistrate has addressed all the issues which have been raised in this ground of appeal and adequately explained his reasons.

135 For these reasons I would dismiss this ground of appeal.

Ground 4

136 The appellant alleges that the magistrate erred in deciding the issue of guilt on the evidence of the police officers alone in view of certain circumstances which are specifically identified. Presumably, the circumstances, either individually or collectively, are such as to preclude the magistrate from relying only on the evidence of the police officers in reaching his decision.

137 The first circumstance is that the magistrate found the appellant to be an honest witness and the second is that the evidence of the police officers was inconsistent as to the appellant's manner of driving prior to his being stopped. The first circumstance was addressed in ground 1 where I noted that the magistrate's actual words were that the appellant 'seems to be a truthful bloke'. After considering the context in which the words were said, I drew the conclusion that the magistrate's observation was not a finding that the appellant was, in fact, a witness of truth whose evidence should therefore be accepted in preference to any competing evidence, nor that it overcomes the prima facie evidence of the radar reading.

138 The second and third circumstances relate to the evidence of the police officers as to the appellant's manner of driving when first observed and through the floodway and their evidence as to where the appellant's vehicle's speed was checked. It is said that their evidence was inconsistent. As to the location where the radar reading was taken, this issue was addressed in ground 3 where I concluded that the magistrate was entirely correct in his view that there was a mere difference in the terminology used to describe the location in terms of the terrain and no actual inconsistency as to the location.

139 As to the manner of the appellant's driving, this issue was also addressed in ground 3. The magistrate did at one point say that he thought the police officers were 'gilding the lily'. However, that comment needed to be considered in context of the magistrate's final comments that he accepted that the police officers actually thought there was something wrong with the appellant's driving but they might have made a mistake. Ultimately, the magistrate considered the inconsistent evidence related to a peripheral issue and did not adversely reflect on the police officers'

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credibility generally. I further found that this was a view he was entitled to take.

140 Counsel for the appellant also raises the fact that the evidence of the police officers as to the appellant's manner of driving was inconsistent with the appellant's evidence as to his driving. Much of the appellant's evidence on this issue was accepted by the magistrate in reaching his conclusion. Therefore, this circumstance does not add anything to the appellant's argument on this ground.

141 Another circumstance raised is the fact that the police officers denied the presence of Mr Sobey on the road whereas the magistrate found that he had been on the road at the relevant time. Sergeant Morris certainly disputed that there were any other vehicles on the roadway at the time. He denied that the accused gradually overtook another vehicle travelling in the same direction after the floodway and stated that when spoken to at the scene the appellant did not mention that another vehicle was present. According to Sergeant Morris, the appellant did mention to him on the first court appearance that there was someone else on the road at the time; however, he had not had the opportunity to speak to that person.

142 Constable Peden saw no other vehicle between when he sighted the appellant's vehicle and when they stopped. It was suggested to Constable Peden that whilst he was talking to the appellant a vehicle travelling in the same direction passed them. He said that he could not remember seeing any other vehicle, however, he acknowledged the possibility that a motor vehicle might have passed while they were concentrating on the appellant, but he did not see that vehicle.

143 In addressing the evidence of Mr Sobey, the magistrate noted that the police did not notice his vehicle and did not think there was any vehicle in between them and the appellant. The magistrate accepted that Mr Sobey's vehicle was there but expressed the view that he did not think 'a lot swings on that'. After referring to the time lapse from March of the previous year to July 2007, he posited the question whether you would notice some vehicle that really did not have much to do with anything. The magistrate considered that this fact didn't take away from the credit of the police. He also observed that it was too hard to glean too much from Mr Sobey's evidence, apart from the fact that he was there, because he did not give any evidence of the appellant's speed. I would also add that there was no suggestion that Mr Sobey's vehicle in any way interfered with the reading taken by the radar apparatus.

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144 It is apparent from the magistrate's reasons that he attributed the failure by the police officers to remember Mr Sobey's vehicle to the lapse of time and the fact that the presence of Mr Sobey's vehicle was not significant or relevant to their activities at the time. For that reason, the magistrate considered there was no adverse effect on their credibility. I consider that conclusion was open on the evidence and something which the magistrate was in the best position to determine.

145 The ground of appeal also raises as circumstances relevant to the alleged error, the fact that the magistrate did not accept the police officers' evidence concerning the appellant's manner of driving, the fact that he found that they filled in the gaps in their evidence and that they gilded the lily. I have already addressed these factors when dealing with the allegations concerning the alleged discrepancies in the police evidence on the appellant's manner of driving.

146 The final circumstance raised is that the police evidence as to distances travelled, the nature of the road and their version of the roadway ahead was inconsistent with the evidence depicted from the plan, the aerial plan and the photographs. I have already addressed some of these matters when considering other issues. I accept the submission of counsel for the State that the evidence of Sergeant Morris and Constable Peden as to the distances travelled (which were based on estimates), the nature of the road and their vision of the roadway ahead was generally consistent with these documents. I would also add that some of the matters were not only estimated, but were clearly being given from memory without recourse to anything to refresh the witness's memory. A number of the matters were not directly relevant to the taking of the appellant's speed and were, therefore, less likely to be retained by the officers. It is also the case that it was often never clarified by counsel whether the witnesses were using the same terminology for the changes in the roadway.

147 In any event, as I have already referred to above, it is important to note that the magistrate did not decide the charge against the accused based on the evidence of the police officers alone. The magistrate's reasons indicate that he decided the issue of guilt after balancing the evidence of all the witnesses. The evidence was that all three witnesses agreed that Sergeant Morris offered to show the appellant the reading on the radar gun of his speed. The magistrate reasoned that if the police had completely made up the speed that offer would not have been made. In the absence of any cross-examination on whether the radar apparatus had been manually manipulated to register a particular speed and the absence of evidence as to how that could be achieved, the reading stood,

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unaffected by any of the inconsistencies to which the appellant refers. The magistrate specifically addressed the issue of whether the presumption that arose from the fact that the radar apparatus did record a speed of 127 km per hour was displaced by the other evidence before the magistrate.

148 In reaching his decision, the magistrate considered the evidence of each witness, the relevance of the evidence to the actual issue to be determined, and the credibility of the witnesses. Even without the express references made by the magistrate to credibility issues, where it sufficiently appears from the magistrate's reasons that such was the case, the magistrate's findings of fact may be regarded as having been based on, or influenced by, the views he formed as to the credibility of the witnesses: Brunskill v Sovereign Marine and General Insurance Co Ltd [1985] HCA 61; 62 ALR 53, 57; Weir & Anor v Tomkinson [2001] WASCA 77 [26]-[35]. In my view, this is one of those cases where the advantage of the trial judge in determining the credibility of the witnesses because of his opportunity to hear and observe them, is such as to make it inappropriate for this court to reverse the findings he made as to credibility. Certainly, there is nothing about the conclusions he reached on credibility which cause me any concern that he has failed to use, or palpably misused, his advantage: Devries v Australian National Railways Commission(1993)177 CLR 472, 479; Abalos v Australian Postal Commission (1990) 171 CLR 167, 178 - 179; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588, 3. For these reasons, I am not persuaded that this ground of appeal is made out.

149 It is apparent from the views expressed in relation to the individual grounds of appeal that the appeal should be dismissed.

Obst v Morris

[2008] WASC 156

31 JULY 2008

OBST -v- MORRIS [2008] WASC 156