Rahnoma v Matthews
[2015] WASC 467
•19 NOVEMBER 2015
RAHNOMA -v- MATTHEWS [2015] WASC 467
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 467 | |
| Case No: | SJA:1040/2015 | 19 NOVEMBER 2015 | |
| Coram: | PRITCHARD J | 19/11/15 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Leave refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DARIUS RAHNOMA EMMA VICTORIA MATTHEWS |
Catchwords: | Application for leave to appeal against conviction Whether ground of appeal has reasonable prospect of success Whether the Magistrate erred in finding that the applicant had exceeded the speed limit |
Legislation: | Criminal Appeals Act 2004 (WA), s 9(2), s 40 Evidence Act 1906 (WA), s 32 Road Traffic Act 1974 (WA) Road Traffic Administration Act 2008 (WA), s 117 Road Traffic Code 2000 (WA), reg 11(3) |
Case References: | Cramphorn v Bailey [2014] WASCA 60 Obst v Morris [2008] WASC 156 R v Shalala [2007] VSCA 199; (2007) 176 a Crim R 183 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374 The State of Western Australia v Wood (2008) WASCA 81 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
EMMA VICTORIA MATTHEWS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE G SMITH
File No : MO 372 of 2014
Catchwords:
Application for leave to appeal against conviction - Whether ground of appeal has reasonable prospect of success - Whether the Magistrate erred in finding that the applicant had exceeded the speed limit
Legislation:
Criminal Appeals Act 2004 (WA), s 9(2), s 40
Evidence Act 1906 (WA), s 32
Road Traffic Act 1974 (WA)
Road Traffic Administration Act 2008 (WA), s 117
Road Traffic Code 2000 (WA), reg 11(3)
Result:
Leave refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms A U Luktuke
Respondent : Mr C M Beetham
Solicitors:
Appellant : Butcher Paull & Calder
Respondent : State Solicitor for Western Australia
Cases referred to in judgment:
Cramphorn v Bailey [2014] WASCA 60
Obst v Morris [2008] WASC 156
R v Shalala [2007] VSCA 199; (2007) 176 a Crim R 183
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374
The State of Western Australia v Wood (2008) WASCA 81
- PRITCHARD J:
(This judgment was delivered extemporaneously on 19 November 2015 and has been edited from the transcript).
1 On 2 April 2015, Mr Rahnoma was convicted in the Magistrates Court at Moora of an offence against reg 11(3) of the Road Traffic Code 2000 (WA), namely that on 30 April 2014, he drove a car on Muchea South Road at a speed of 75 km/hr within a speed zone of 60 km/hr.
2 Mr Rahnoma now seeks to appeal against his conviction for that offence. To do so, he requires leave to appeal. The grant of leave in respect of an appeal requires that the Court be satisfied that the ground has a reasonable prospect of succeeding.1 That means that the ground has a real, rational and logical prospect of succeeding and that it would not be irrational, fanciful or absurd to envisage its success.2
3 For the reasons which follow, the ground of appeal advanced by the applicant does not have a reasonable prospect of succeeding. Leave to appeal should therefore be refused and the appeal dismissed.
4 In these reasons, I deal with the following matters:
1. the matters in contention at the trial;
2. the evidence at the trial;
3. the learned Magistrate's decision;
4. the ground of appeal;
5. why there is no reasonable prospect of success; and
6. whether new evidence should be admitted.
1. The matters in contention at the trial
5 The trial was first listed for hearing on 11 December 2014. That hearing had to be adjourned so that a police witness could attend for cross-examination, but reference to the transcript of what occurred is useful because it confirms what appears from the later transcript of the trial on 2 April 2015 to have been the issues in dispute.
6 According to the transcript of 11 December 2014, Mr Rahnoma told the learned Magistrate on that occasion that he agreed that he was the driver of the car in question, that he agreed that the police laser apparatus recorded him travelling at 75 km/hr, and that he agreed he was doing 75 km/hr, but he said that that happened after he passed into a higher speed zone so that he was not in a 60 km/hr zone when he was doing 75 km/hr.
7 At the outset of the hearing of the trial on 2 April 2015, the learned Magistrate asked Mr Rahnoma what was in issue, having regard to the matters which had been discussed on the previous occasion. According to the transcript, her Honour observed:3
It seems to me from the notes that I have previously made on the prosecution notice that the speed at which you were detected is not an issue, it's what was the speed zone at that relevant point?
8 Mr Rahnoma said, 'That's right.' Her Honour said, 'Okay. So I think it says that you were detected at 75 km/hr.' Mr Rahnoma replied: 'That's right.' Her Honour asked: 'So do you want to formally, you know, admit that that's the speed that you were doing.' Mr Rahnoma said:
I don't have doubt I been 75 km/hr but the only problem is from my point of view ... that strip from the starting point to ending point of that 60 zone is 600 metres.
9 Accordingly, it appeared that the major issue in the trial was whether Mr Rahnoma was in a 60 km/hr zone at the time his speed was measured. According to the balance of the transcript, a further issue appeared to be whether the police officer using the laser apparatus equipment, which was described as an LTI 20/20, had an unobstructed view of Mr Rahnoma's car so as to be able to ascertain that he was, at the time, doing 75 km/hr.
10 For completeness, I note that in the course of the trial, Mr Rahnoma said, 'Now, I'm not agree with the reading of the laser then.'4 However, considered in its context, that observation appears to have been a reference to the fact that he disputed whether he was within a 60 km/hr zone when the speed measurement was taken.
2. The evidence at the trial
11 The prosecution called two witnesses, the respondent and another police officer. The respondent's evidence was that she was a police officer and a qualified user of the LTI 20/20 TruSpeed laser, which was an approved device for measuring speed.
12 A copy of the Government Gazette in which the LTI 20/20 TruSpeed was approved by the Minister for use as a laser apparatus to ascertain the speed at which a vehicle is moving, to ascertain distances on a road and to ascertain the speed at which a vehicle was moving, and the distance between the vehicle and the apparatus, was tendered in evidence.
13 The respondent's evidence was that she and a colleague, Senior Constable Uncle, were performing traffic duties on 30 April 2014. They were sitting in an unmarked police car on Dear Street, which was a side road just off Muchea South Road in Muchea. They were monitoring the traffic which was passing by both north and south bound. The respondent was using the LTI 20/20 TruSpeed laser.
14 The respondent's evidence was that she saw a car, which was the car being driven by Mr Rahnoma, which appeared to be going faster than the speed limit on that stretch of road, which was 60 km/hr. She knew that that was the case because there is a 60 km/hr speed zone at the beginning of Muchea South Road as cars entered into that road, and that speed zone continued until two signs indicated that cars were then entering into a 90 km/hr zone.
15 According to the respondent's evidence, the 90 km/hr zone was 405 m from where the police car was parked. The respondent said she knew that because they had parked in the same spot before and used the LTI 20/20 on numerous occasions to measure the distance from the car to the sign.
16 The respondent said she pointed the LTI 20/20 at the car when it passed them and it gave a reading of 77 km/hr. The distance between the car and the police car was measured by the LTI 20/20 as being 177 m. The respondent's evidence was that she then drove the police car in pursuit of the other car and pulled the car over. Mr Rahnoma was the driver.
17 In cross-examination, the respondent's evidence was that the police car was parked so as to give them a clear view all the way down Muchea South Road. She denied that there was a tree in the way which obstructed her view. Her evidence was that the police officers could clearly see past the bushes and all the way down the road to the 90 km/hr zone.
18 Evidence was also given by Senior Constable Uncle at the trial. His evidence was that he and the respondent were sitting in an unmarked police car parked in Dear Street on the morning of 30 April 2014. They were facing east. They saw a car coming onto Muchea South Road from the Brand Highway and it then drove past them. He confirmed that the stretch of Muchea South Road was a 60 km/hr zone because, as cars entered Muchea South Road from the Brand Highway, there was a posted speed limit sign for 60 km/hr. That zone continued until another sign indicated that the speed zone was 90 km/hr.
19 Constable Uncle's evidence was that that the 90km/hr sign was about 400 m down the road from where the police car was parked. Constable Uncle's evidence was that, when the car passed them, the respondent used the LTI 20/20 to check its speed and it detected 77 km/hr. The car was within the 60 km/hr zone at that time. Constable Uncle was unable to say how far it was from them when the reading was taken.
20 Constable Uncle said that they pursued the car and by the time they caught up with it, the car was in the 90 km/hr zone. He estimated that was about 1 km or 1.5 km into the 90 km/hr zone. Constable Uncle confirmed that from where the police car was parked, they had an unobstructed view from the driver's seat and passenger seat in both directions along Muchea South Road and there were no trees blocking their view.
21 In the course of the trial, Mr Rahnoma sought to show the police officers photos of the location, which he had taken on his mobile phone. He had not brought copies of the photos with him to the trial. The learned Magistrate told him that unless he was willing to have his phone admitted into evidence, the photos could not be relied upon as evidence. Mr Rahnoma did not seek to tender the photos into evidence.
22 Mr Rahnoma gave evidence himself. His evidence was that when he got into the car that morning, he set an alarm to 60 km to alert him if he exceeded that speed per hour. He said that he entered Muchea South Road not doing over 60 km/hr. He said he saw the unmarked police car and did not dispute that it was parked where the officers said it was parked. However, he disagreed with their evidence as to the way the car was positioned. He said that the back of their car was facing to west Muchea Road (by which I think he means that it was facing away from Muchea South Road). He said that he drove at the speed limit in a 60 km/hr zone, he then entered the 90 km/hr zone and, later, a 110 km/hr zone further along. He said that, about 1 to 1.5 km down that zone, he was pulled over by the police.
23 Mr Rahnoma's evidence was that where the police car was parked, its view of the road was obstructed by trees and bushes. In order to check his speed, his evidence was that the police officers would have to get out of the car and walk about 3 to 4 m from where the car was parked so they could see his car properly. He said there was a bush between the police car and the line of sight to the road. He said that when he drove around the bend from the Brand Highway into Muchea South Road, he was looking in front and to the right at a park where he takes his children.
24 Mr Rahnoma also agreed that his speed alarm was of the kind that when the car exceeds 60 km/hr, it sounds for a minute or two and then just flashes without making more noise. He denied that he had simply misjudged his acceleration and accelerated before he was within the 90 km/hr zone.
3. The learned Magistrate's reasons for decision
25 Her Honour gave detailed reasons in an ex tempore decision. She was satisfied that the LTI 20/20 was authorised according to the Road Traffic Act 1974 (WA) and operated by the respondent who was an authorised officer. Her Honour further found that the LTI 20/20 had recorded a reading of 77 km/hr which was adjusted down to 75 km/hr and that this constituted prima facie evidence that Mr Rahnoma was travelling at the alleged speed at the time and place in question.
26 The learned Magistrate noted Mr Rahnoma's evidence that he had set a 60km/hr alarm in his car to warn him of his speed and that this was the result of an arrangement he had with the Department of Transport. However, Mr Rahnoma gave no particular evidence about him having seen or noted the speed he was doing at the time.
27 The learned Magistrate observed that it would make no sense for the police officers to have positioned the police car in the direction contended for by Mr Rahnoma given the nature of the operation. Further, it would make no sense for the officers to have set up the operation with an obstructed view of the road. Her Honour accepted the police officers' evidence, finding that it was consistent with the operation they were in fact performing and the duties they were performing (that is, detecting traffic offenders).
28 Accordingly, her Honour held that Mr Rahnoma had not displaced the prima facie evidence that, at the time alleged, he was driving 75 km/hr in a 60 km/hr zone.
29 I digress to observe that the learned Magistrate appears to have proceeded to consider whether the prosecution had established all of the elements of the offence, including the speed at which Mr Rahnoma's car was travelling, notwithstanding that he had said he accepted that he was travelling at 75 km/hr.
30 I will return to this issue in a moment, but perhaps the learned Magistrate did so out of an abundance of caution as to whether Mr Rahnoma had, in fact, made an admission as to his speed. Alternatively, perhaps it was because the prosecution had itself adduced some evidence of speed measured by the LTI 20/20.
4. The ground of appeal
31 The notice of appeal contained two grounds of appeal. Ground 2 was abandoned expressly by counsel for Mr Rahnoma in the course of the hearing of the application for leave to appeal. Ground 1, which is the only ground of appeal that remains, is in the following terms:
The learned Magistrate erred in concluding that the appellant was speeding and should have found that there was no adequate evidence that the appellant exceeded the speed limit.
32 I note that that ground of appeal does not contend that there has been some miscarriage of justice in the conviction of the applicant.
5. Why there is no reasonable prospect of success
33 I am not satisfied that the remaining ground of appeal has a reasonable prospect of succeeding for the following reasons.
34 First, insofar as the ground of appeal is directed to whether there was adequate evidence that Mr Rahnoma had exceeded the speed limit, in my view, there was an admission by Mr Rahnoma that his car was travelling at 75 km/hr. What he said at the commencement of the trial on 2 April 2015, particularly in view of what he had previously said before the Magistrates Court on 11 December 2014, constituted a clear admission that he was travelling at 75 km/hr at the relevant time. Counsel for Mr Rahnoma, in the course of the hearing of the application for leave to appeal, accepted that what was said constituted an admission.
35 Under s 32 of the Evidence Act 1906 (WA), an accused may admit on his trial any fact alleged or sought to be proved against him and such admission shall be sufficient proof of the fact without other evidence.
36 As the authorities confirm, in the context of an adversarial and accusatorial proceeding, the making of admissions by accused persons as to facts relevant to, or elements of, an offence is a valuable process which avoids unnecessary cost and inconvenience to the community, to witnesses and other persons affected by or involved in a prosecution.5 If admissions or concessions are made, however, care should be taken to ensure that those admissions or concessions are set out in the clearest possible manner so as to avoid confusion about what has been admitted or conceded, and disputes about the effects and consequences of informal admissions or concessions.6
37 As I have already observed, however, in my view, and having regard to what was said by Mr Rahnoma before the Magistrates Court on 2 April 2015, and particularly in view of what had previously been said by Mr Rahnoma on 11 December 2014, it was clear that he admitted that he was travelling at 75 km/hr. Having regard to that admission, it is difficult to see any basis on which it could be contended that the learned Magistrate erred in finding Mr Rahnoma exceeded the speed limit, save as to the question whether he was travelling in a 60 km/hr zone. Accordingly, submissions contained in Mr Rahnoma's outline of submissions and confirmed orally today, to the effect that notwithstanding the admission, the prosecution nevertheless had to establish the speed at which the his car was travelling, cannot be accepted.
38 As I have already observed, the only issue that was in dispute at the trial was that Mr Rahnoma was travelling in a 60 km/hr zone at the time that his speed was measured at 75 km/hr. The police officers' unchallenged evidence was that the police car was parked approximately 400 m from the sign that indicated that the speed zone was changing to 90 km/hr (that is, from the 60 km/hr zone). Constable Uncle's evidence was that, when Mr Rahnoma's car was detected travelling at 75 km/hr, it was within the 60 km/hr zone.7
39 As I have already observed, the learned Magistrate accepted the evidence of the police officers. In addition, the respondent's evidence was that the laser machine measured the distance from the police car to Mr Rahnoma's car as being 177 m, a distance less than the 400 m from the police car to the next speed zone, that is, to the 90 km/hr sign.
40 Counsel for Mr Rahnoma submitted that the prosecution had not adduced evidence of the testing of the machine or qualifications so as to prove that it was travelling at 75 km/hr in the 60 km/hr zone. That submission did not appear to appreciate the effect of s 117 of the Road Traffic Administration Act 2008 (WA). Relevantly, s 117(2) provides:
The Minister may, from time to time, by notice published in the Gazette, approve of types of apparatus for the purpose of ascertaining the speed at which a vehicle is moving and may, by notice so published, revoke any such approval.
41 In addition, s 117(3) provides:
The Minister may, from time to time, by notice published in the Gazette, approve of types of apparatus for the purpose of ascertaining distances on roads and may, by notice so published, revoke any such approval.
42 As I have already observed, the Government Gazette which was tendered in evidence made clear that the Minister approved apparatus that bear the name LTI 20/20 TruSpeed as types of laser apparatus for ascertaining the speed at which a vehicle is moving, for ascertaining distances on a road, for ascertaining the speed at which a vehicle is moving and the distance between a vehicle and the apparatus.
43 Furthermore, s 117(5) and (6) of the Road Traffic Administration Act provide that:
In a prosecution for an offence under any written law evidence may be given of the use of distance measuring equipment by an authorised person on a road, of the distance between 2 identified points on the road as ascertained by the use of that equipment and of the ascertainment of the speed at which a vehicle was moving by the measurement of the time taken by that vehicle to travel that distance, and that evidence is prima facie evidence of the speed at which that vehicle was moving when it travelled that distance.
In a prosecution mentioned in subsection (4), evidence by an authorised person that apparatus used by the person was speed measuring equipment is prima facie evidence of that fact.
44 Section 117(7) provides that:
In a prosecution mentioned in subsection (5), evidence by an authorised person that apparatus used by the person was distance measuring equipment is prima facie evidence of that fact.
45 I note that there was no express evidence given by the police officers that the LTI 20/20 was distance measuring equipment. The respondent was asked whether it was speed measuring equipment and confirmed that it was, but was not expressly asked whether it was distance measuring equipment. However, in my view, the fact that it was distance measuring equipment was implicit in the evidence given by the respondent that the machine was used to measure distance and had been used for that purpose, combined with the evidence from the Government Gazette that the LTI 20/20 was an approved apparatus for measuring both speed and distance between a vehicle and the apparatus. Evidence given by the respondent that the LTI 20/20 had measured a distance of 177 m between the apparatus itself and Mr Rahnoma's car therefore constituted prima facie evidence of that distance.8 It is, of course, open to an accused in any case to dispute prima facie evidence of that kind.9 The learned Magistrate was not satisfied that Mr Rahnoma had displaced the prima facie evidence constituted by the evidence given by the police officers. Nothing in her Honour's reasons suggests that she erred in reaching that conclusion.
46 Finally, I note for completeness that this ground of appeal does not contend that the learned Magistrate erred in concluding that Mr Rahnoma was in a 60 km/hr zone when he was said to have been travelling at 75 km/hr.
47 For all of these reasons, I am not satisfied that this ground has reasonable prospects of succeeding.
6. Whether new evidence should be admitted
48 The new evidence on which Mr Rahnoma sought to rely should not be admitted.
49 Mr Rahnoma sought to adduce what was said to be fresh evidence pursuant to s 40 of the Criminal Appeals Act 2004 (WA). The evidence in question was set out and appended to an affidavit sworn by Mr Rahnoma on 20 October 2015. In fact, that evidence was not fresh evidence at all, but rather new evidence in the sense that it was evidence which was available at the trial or which could, with reasonable diligence, been discovered.10
50 In his affidavit of 20 October 2015, Mr Rahnoma said that he had videos and photos of the location where the police car was parked and its surroundings in his phone, but did not seek to tender that evidence for the reasons I have already explained. I have viewed the video footage and the photos.
51 The principles in relation to the admission of new evidence were discussed in Cramphorn.11 In my view, leave to adduce that new evidence should be refused for two reasons.
52 First, Mr Rahnoma does not advance a ground of appeal which is that his conviction gives rise to a miscarriage of justice, having regard to the new evidence upon which he seeks to rely. Ground 1, as I have already observed, contends that the learned Magistrate erred in that she should have found that there was no adequate evidence that Mr Rahnoma exceeded the speed limit. That ground falls to be assessed having regard to the evidence before the learned Magistrate. Although the issue was raised in the course of the hearing, counsel did not seek to amend the grounds of appeal to include a further ground contending a miscarriage of justice.
53 Secondly, leaving that issue to one side, I am not persuaded that the admission of this new evidence would reveal a miscarriage of justice, in any event, on the basis that Mr Rahnoma should not have been convicted having regard to all of the evidence. The evidence of the police officers was, as I have outlined, that their unmarked police car was parked on Dear Street facing Muchea South Road. According to the respondent's evidence, the police car was parked just past the post box of a house situated at the end of Dear Street facing Muchea South Road.
54 The video and the photos depict that house and appear to depict a mailbox located very close to Muchea South Road. On the respondent's evidence, the police car was parked past that post box and bordering the street. The learned Magistrate very carefully evaluated the evidence of the police officers and of Mr Rahnoma and accepted the evidence of the police officers as to where their car was parked and as to whether they had an unobstructed view of Mr Rahnoma's car. I see nothing in the learned Magistrate's reasoning to suggest any error.
55 The new evidence upon which Mr Rahnoma seeks to rely could only be of assistance if his evidence as to the location of the police car had been accepted. If the police car had been parked further back on Dear Street some metres away from Muchea South Road, then the video and the photos would have supported his evidence that the view from the police car down Muchea South Road must have been obstructed.
56 The video and the photos could not assist to cast doubt on the learned Magistrate's conclusion that she preferred the evidence of the police officers to that of Mr Rahnoma in relation to the location of the police car and its unobstructed view. In that circumstance, the videos and the photos cannot, without more, assist in establishing a miscarriage of justice.
57 For all of these reasons, in my view, leave to appeal should be refused.
1 See Criminal Appeals Act 2004 (WA) s 9(2).
2 See Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
3 ts 4 (2 April 2015).
4 ts 18 (2 April 2015).
5 See R v Shalala [2007] VSCA 199; (2007) 176 a Crim R 183 [21] - [22].
6 Cf Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374 [90] (Heydon J). See also The State of Western Australia v Wood (2008) WASCA 81 [25], [28] - [38].
7 ts 21 - 22 (2 April 2015).
8 See Road Traffic Administration Act 2008 (WA) s 117(7).
9 In this respect, see the discussion in Obst v Morris [2008] WASC 156 [27] - [28] (although the discussion at those paragraphs concerns evidence of the speed of a vehicle, the observations made by Johnson J apply equally in respect of distance measurements).
10 For a discussion of the distinction between fresh and new evidence, see Cramphorn v Bailey [2014] WASCA 60 [54].
11Cramphorn v Bailey [2014] WASCA 60 [56] - [59].
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