Perron v Seiler
[2000] WASCA 145
•26 MAY 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PERRON -v- SEILER [2000] WASCA 145
CORAM: MILLER J
HEARD: 23 MAY 2000
DELIVERED : 26 MAY 2000
FILE NO/S: SJA 1009 of 2000
BETWEEN: ROY FRANCIS PERRON
Appellant
AND
RONALD THOMAS SEILER
Respondent
Catchwords:
Criminal law - Driving offence - Speeding - Conflicting evidence as to speed - Each speedometer certified to be correct - Whether Magistrate should have had a reasonable doubt - Turns on own facts
Legislation:
Road Traffic Code, reg 1001(1)(b)
Result:
Appeal allowed
Conviction quashed
Representation:
Counsel:
Appellant: Mr J R Quigley
Respondent: Ms A C Johnson
Solicitors:
Appellant: Hammond Worthington
Respondent: State Crown Solicitor
Case(s) referred to in judgment(s):
Harling v The Queen (1997) 94 A Crim R 437
Hijazi v Orr (1998) 26 MVR 266
Porter v Kolodzeij [1962] VR 75
Redman v Klun (1979) 20 SASR 343
Case(s) also cited:
Davis v Armstrong (1993) 17 MVR 190
He Kaw Teh v The Queen (1985) 157 CLR 523
Jenkins v WMC Resources Ltd [1999] WASCA 171
Madgen v Ashe (1992) 17 MVR 219
Radalj v Taylor, unreported; SCt of WA; Library No 970490; 26 September 1997
MILLER J: The appellant was charged by complaint in the Court of Petty Sessions, Perth that on 23 July 1999 at Manning he drove a motor vehicle, registered number LXS 400 on Kwinana Freeway at 110kmh, being a speed in excess of the limit of 100kmh within that speed zone, contrary to reg 1001(1)(b) of the Road Traffic Code. He pleaded not guilty to the charge and a trial was heard before Mr K Moore SM on 23 December 1999. At its conclusion the learned Magistrate found the charge proven and convicted the appellant who was fined the sum of $100. From that conviction the appellant was, on 13 March 2000, given leave to appeal to this Court on the following grounds:
"(i)The learned Magistrate erred in law in finding as matter of 'belief' that the apprehending officer's speedometer must have been correct because he was bound to accept that things that are regularly done, have been regularly done.
(ii)The learned Magistrate misdirected himself and erred in law and cast a burden upon the Applicant in finding that if there had been anything wrong with the speedometer he was in no doubt that it would have been brought to his attention. Implicit in that misdirection was brought to his attention by the defence whereas it was for the prosecution at all times to prove beyond reasonable doubt that the speedometer on the motor cycle was correct.
(iii)The conviction was against the evidence and the weight of the evidence is that:-
(a)the speedometer on the motor cycle was last checked as long ago as 19 May 1999 and not checked again prior to apprehension on 23 July 1999 and the absence of any check after 23 July 1999; and
(b)the cruise control on the Applicant's motor vehicle was checked as being correct on 2 August 1999; and
(c)there was no challenge by the prosecution to either the accuracy of the Applicant's cruise control and no challenge by the prosecution that the Applicant's car was driving with the cruise control set to 100kph.
(iv)The conviction was against the evidence and against the weight of the evidence in that neither the Prosecution nor the learned Magistrate rejected the Applicant's evidence that he had an honest belief that he was not exceeding the speed limit by reason of the fact that he was driving his vehicle with the cruise control set at 100kph, then the learned Magistrate erred in law in convicting without being satisfied beyond a reasonable doubt that the Applicant's belief that he was not exceeding the speed limit was both honest and reasonably held."
The facts of the case can be briefly summarised. Senior Constable Abdullah was, on the evening of 23 July, riding a police issue motor cycle on patrol on the Kwinana Freeway. He was travelling in a southerly direction at about 10.50pm and observing traffic when he saw a white sedan apparently travelling at a speed in excess of 100kmh, which was the speed limit for that section of the freeway. The Constable accelerated to a position approximately five to ten lengths directly behind that vehicle and observed its registration number to be LXS 400. He then commenced to check the speed of it and maintained a distance of five to ten car lengths from it for approximately 400 to 450 metres. He checked the speed against the speedometer of his motorcycle at 110 to 112kmh, then activated his blue flashing light and brought the vehicle to a stop near Canning Highway. There he advised the driver of the vehicle that his speed had been checked at 110 to 112kmh and asked if he had any explanation. According to his testimony the driver (who identified himself as Roy Perron) became agitated and said that he was being intimidated and that he had his cruise control set. The Constable testified that the speedometer on his motorcycle had been certified correct as at 19 May 1999.
When cross‑examined, Constable Abdullah informed the court that he travelled approximately 3000km per month, with the result that between the time the speedometer was last checked and the date upon which the appellant's vehicle was stopped, the motorcycle must have done something in the order of 6000km.
The appellant gave evidence that on the night in question he was driving a Lexus LS400 sedan in a southerly direction on the Kwinana Freeway and after leaving the Narrows Bridge had checked his speed at 80kmh and then at Judd Street (where the limit changes to 100kmh) had set the cruise control of his vehicle on 100kmh in order that he would be safe. He did this because he had previously seen a single motorcycle headlight in the rear vision mirror as he came over the bridge and realised that it was a motorcycle patrolman. The appellant's testimony was that he was doing exactly 100kmh when he observed at the Canning Bridge overpass the police motorcycle's blue light flashing. He was stopped by the police officer and informed him that he had the cruise control of his vehicle locked on exactly 100kmh. He invited the police officer to inspect the cruise control and to allow him to start up the vehicle and set it so that the 100kmh limit would be shown. This the police officer declined to do, allegedly telling the appellant that the motorcycle speedometer was checked regularly so that the appellant's speedometer must have been in error. After being given an infringement notice the appellant contacted police communications objecting to what had occurred and requesting advice as to their recommended certified agents or nominees from whom evidence would be accepted in relation to the accuracy of speedometers. He was told to take his vehicle to the appropriate service agent for the vehicle in question and this he did. By consent a report of Lexus of Perth dated 2 August 1999 was tendered in evidence. This revealed that tests carried out by Lexus of Perth and an independent technical specialist revealed the readings on the appellant's vehicle to be 100 per cent accurate at every interval from 10kmh up to 110kmh, both with the cruise control operational and under normal driving conditions. The report concluded with the following paragraph:
"In relation to the operation of the speedometer, it would be highly unlikely to register an incorrect speed due to the fact there are no moving parts in the construction of the speedometer registration process. Furthermore, there is also a back‑up number two sensor that constantly compares the two readings. If one should fail, the sensor will revert to the more likely reading determined by the computer and its input signals."
Faced with this evidence the learned Magistrate observed that the facts were "very simple" and said:
"The police officer says he was doing 112. That was the speed that the motor cycle speedometer recorded. I stopped him and he said he felt intimidated and was not happy. He said he was agitated but had written nothing about that. I am left in a position where, Mr Quigley quite properly points out, two decent people come to court and say here is the position. The police officer does this every day of the week. Mr Perron, who doesn't do it every day of the week, has an excellent and perfect record, but here he is saying, 'Well, I thought I was doing 100. That's what I set my cruise control on.'
I believe that the speedometer on the motor cycle was correct because I must, because I must accept that things that are regularly done have been regularly done, and I see nothing to cause me to believe that the speedometer on the motor cycle was incorrect. There has been an internal examination in this case. The witnesses were not called regarding that particular examination by the police authorities as to whether the examination, whatever it was, was correct. If there had been, I have no doubt that that would have been brought to my attention.
Mr Quigley says that there was nothing from anyone to show the motor cycle was checked. I have no doubt at all that if it had been felt that the motor cycle speedometer was not correct that that would have been brought before me, but that is not the point. The point is simply two people before the court both saying different things, and I am left with who do I believe and what must I believe, and I do believe that the speedometer on the motor cycle was correct, that Senior Police Constable Abdullah was riding his motor cycle that night, that he was attracted by the speed of the other vehicle, that he checked it at a steady speed over some 400 or 500 kilometres, that the speedometer gave a registered 112 kilometres, that he stopped the defendant, that he told him and he issued an infringement notice. I can see nothing to cause me to doubt the police officer's evidence or anything that would cause me to doubt it. I find the defendant guilty."
The learned Magistrate had earlier concluded that the appellant's motor vehicle had been checked by a master technician of the service adviser which established that the speedometer was in perfect working condition. The appellant was described as a "responsible citizen" but the learned Magistrate was somewhat critical of the appellant because of the appellant's belief that he was being intimidated by the police officer. Be that as it may, the learned Magistrate clearly accepted the appellant as a witness of truth, conceding his counsel's submission that "two decent people come to court and say here is the position". By inference the learned Magistrate accepted in every respect the testimony of the defendant. What he did, however, was prefer the evidence of the police officer as to the accuracy of the speedometer on the motorcycle, believing that he was obliged to accept that "things are regularly done and have been regularly done" in relation to the motorcycle.
In ordinary circumstances it is quite true that speedometers fall into the class of notorious scientific or technical instruments to which a common law presumption of accuracy applies. That presumption makes the recording or reading of such an instrument prima facie evidence of the fact recorded without the need for any evidence that its accuracy has actually been tested: Porter v Kolodzeij [1962] VR 75 at 78; Redman v Klun (1979) 20 SASR 343 at 344 ‑ 345. Whilst this proposition can be entirely accepted, the fact of the matter was that in this case the police officer had given adamant evidence as to the accuracy of his motorcycle's speedometer, but conceded that 6000kmh or so had been covered by it from the time it was last tested. On the other hand, the appellant had given evidence that immediately after the incident he had arranged for the speedometer on his motor vehicle to be checked and it was found to be 100 per cent accurate. The question was whether, faced with this conflicting testimony, the learned Magistrate could have been satisfied beyond reasonable doubt that the appellant had on the night in question been travelling at 110kmh. As I said at the hearing of the appeal, I cannot see how the learned Magistrate could have been so satisfied. Accepting as he did the testimony of the defendant that his speedometer was entirely accurate, and accepting that the appellant was in every respect a responsible and truthful witness, it is impossible to see how he could have been found guilty of the offence with which he was charged. The evidence adduced on behalf of the appellant must have created a reasonable doubt. That is not to say that the evidence of the Senior Constable was to be disbelieved. It is simply to apply the reasoning succinctly put in Harling v The Queen (1997) 94 A Crim R 437 by Anderson J (at 443):
"A finding of guilt is not to be reached simply by rejecting the case put forward by the defendant. There cannot be a guilty verdict unless the court of trial accepts, that is actually and positively believes to the required standard, the evidence presented by the prosecution on matters critical to proof of guilt. When a defendant gives exculpatory evidence, and it is trite to say that he or she need not do so, the question is not so much whether it is to be preferred to the prosecution evidence but whether in the light of it the prosecution has proved its case. Even if the Court does not positively believe the defendant's evidence and in that sense does not prefer it, the question remains whether on the whole of the evidence the guilt of the defendant has been proved beyond a reasonable doubt. This is not a mere exercise in semantics. There is always a real possibility that whilst the evidence of the prosecution witnesses may be generally preferred to that of the defence witnesses, the evidence as a whole still leaves a reasonable doubt as to the guilt of the defendant. For example, a defendant may give an account which sounds implausible and unlikely, yet the Court may be unable to rule it out. The defendant may not go into evidence at all, yet the prosecution evidence may fail to satisfy the Court to the required degree."
In all the circumstances I am satisfied that the grounds of appeal put forward by the appellant are made out. The learned Magistrate must, in the circumstances of the case, have been left with a reasonable doubt. The position is not dissimilar from that in Hijazi v Orr (1998) 26 MVR 266 where Higgins J was dealing with an appeal against conviction in similar circumstances. There, the defendant and two occupants of his vehicle swore that at no time had the defendant travelled above 80kmh, yet he was charged with having driven at 101kmh, that result having been obtained from a Laser speed detection device operating at a speed trap. In allowing the appeal, Higgins J (at 271) made the following observation:
"It would be unreasonable to reject that evidence from either of the two police officers present at the time that the appellant's vehicle appeared to be exceeding the 80 km per hour limit or, at least, was travelling noticeably faster than the other vehicles in the vicinity.
It should also be observed that evidence given by certificate has no inherent weight. To raise a reasonable doubt, it is not necessary for a defendant to prove some specific failure of the instrument or its operation. If, as here, there is a conflict between the last instrument result and the speedometer result, neither of which can be shown to be wrong, it is impossible to accept the result shown by the laser instrument as proof beyond reasonable doubt of the commission of the offence."
For these reasons I allowed the appeal, quashed the conviction of the appellant; ordered that the fine and costs paid by the appellant be remitted to him; and ordered that under the provisions of the Official Prosecutions (Defendant's Costs) Act 1973, the appellant should recover costs of $1750.
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