Ryan v Muscara
[2021] WASC 453
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: RYAN -v- MUSCARA [2021] WASC 453
CORAM: MCGRATH J
HEARD: 17 SEPTEMBER 2021
DELIVERED : 14 DECEMBER 2021
FILE NO/S: SJA 1022 of 2021
BETWEEN: KERRYN ANNE RYAN
Appellant
AND
RENATO MUSCARA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE DIAS
File Number : PE 39529 of 2020
Catchwords:
Criminal law – Appeal against conviction for speeding in motor vehicle – Whether Magistrate erred in law and fact – Whether Magistrate erred in law by not applying the correct legal onus and standard of proof having regard to ss 117(6) and (7A) of the Road Traffic (Administration) Act2008 (WA) – Where prosecution relied on image from speed measuring and recording equipment – Whether proved image produced from data retrieved from that equipment
Legislation:
Road Traffic (Administration) Act 2008 (WA)
Result:
Leave to appeal granted on grounds 1, 2 and 5.
Leave to appeal not granted on grounds 3 and 4.
Appeal allowed.
Conviction set aside.
Cost order made by Magistrate set aside.
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | Ms E F Archer |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision(s):
Davis v Armstrong [1993] 17 MVR 190
Ireland v Jackson [2021] WASC 362
Magden v Ashe [1992] 17 MVR 218
Radalj v Taylor [1997] 26 MVR 11
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Waite v Hennah [2021] WASCA 69; (2021) 96 MVR 58
MCGRATH J:
The appellant was convicted after trial of one offence of driving a motor vehicle in excess of the speed limit by between 10 and 19 km/h contrary to reg 11(3) of the Road Traffic Code 2000 (WA). The appellant was fined $200 and was ordered to pay costs in the amount of $248.70. The appellant now seeks leave to appeal against the conviction and the costs order.
The appellant applies for an extension of time in which to appeal.[1] The application for the extension of time is not opposed by the respondent.[2] I am satisfied that it is in the interests of justice that the extension of time in which to appeal should be granted.
[1] Appeal Notice filed 12 April 2021.
[2] Respondent's Written Submissions filed 19 August 2021 [15].
The appellant appeals on a myriad of bases that I have distilled from the grounds of appeal and the appellant's written submissions. The respondent has identified three errors of law and concedes the appeal. First, the learned magistrate, having followed and applied the reasoning from the decision in Davis v Armstrong,[3] misapplied the legal onus and standard of proof. In Waite v Hennah,[4] (which was decided after her Honour delivered her reasons) the Court of Appeal held that the reasoning in the line of cases commencing with Davis v Armstrong that if the prosecution satisfies the criteria in s 117(4) of the Road Traffic (Administration) Act 2008 (WA), the onus shifts to the accused to disprove, on the balance of probabilities, that the speed of the vehicle had not exceeded the speed limit, was erroneous. The respondent, in conceding that her Honour erred in law, relied upon Waite v Hennah which was decided after her Honour delivered her reasons for decision.
[3] Davis v Armstrong (1993) 17 MVR 190.
[4] Waite v Hennah [2021] WASCA 69; (2021) 96 MVR 58.
Second, there was a miscarriage of justice in that the prosecution failed to prove by admissible evidence that the image of the appellant's vehicle was produced from data retrieved from the speed measuring and recording equipment and therefore was recorded by that equipment at the specified time and location. Therefore, the prosecution had not met the requirements of proof pursuant to s 117 of the Road Traffic (Administration) Act. The respondent, in conceding that there was a miscarriage of justice, relied upon the reasoning of Allanson J in Ireland v Jackson[5] which was decided after her Honour delivered her reasons for decision.
[5] Ireland v Jackson [2021] WASC 362.
Third, the learned magistrate erred in law by relying upon s 117(4) of the Road Traffic (Administration) Act, when in the circumstances the relevant device was 'speed measuring and recording equipment' approved under s 117(2)(c) and therefore the facilitative provisions of the Road Traffic (Administration) Act were instead ss 117(6), (7A) and (7B).
The respondent concedes that given the failure of the prosecution to lead admissible evidence to prove the authenticity of the photographic image from the speed measuring and recording equipment on which the charge relied, there has been a miscarriage of justice and the conviction must be set aside. I am satisfied that the respondent's concessions are properly made.
In these reasons for decision I will consider the following:
1.The Magistrates Court proceedings;
2.The evidence received at trial;
3.The learned magistrate's reasons for decision;
4.The grounds of appeal; and
5.An assessment of the merits of the appeal.
The Magistrates Court proceedings
The prosecution notice lodged on 24 August 2020 pleaded that on 12 July 2020 the appellant drove a vehicle on a road, namely Kwinana Freeway, South Perth, within a speed zone where the numerals on the restricted sign at the beginning of the speed zone indicated a speed of 80 km/h, at a speed in excess of that shown on the restricted sign, namely 92 km/h, contrary to reg 11(3) of the Road Traffic Code.[6]
[6] Prosecution Notice lodged 24 August 2020, charge number PE 39529/2020.
On 28 October 2020, the appellant pleaded not guilty to the charge. On 18 February 2021, the hearing was held in the Perth Magistrates Court. The prosecution was represented by a police prosecutor and the appellant represented herself at the trial.
The evidence at the Magistrates Court hearing
The prosecution tendered, during the opening address, a certificate of evidence pursuant to s 110 of the Road Traffic (Administration) Act certifying that the registered owner of the vehicle at the relevant date was the appellant.[7] The Traffic Infringement Notice, providing photographic evidence of the vehicle, was received as an exhibit at the hearing. An Instrument of Delegation, signed by the Commissioner of Police delegating his powers and duties under the relevant sections of the Road Traffic (Administration) Act was also received as an exhibit.[8] Further, the prosecution tendered a copy of the notice published in the Government Gazette on 1 September 2017 stating that the apparatus 'Jenoptik Robot GmbH TraffiStar 350' (Jenoptik) was approved by the Minister for Police under s 117(2)(c) of the Road Traffic (Administration) Act.[9]
[7] Exhibit 1, Certificate of Evidence Vehicle Registration.
[8] Exhibit 3, Instrument of Delegation of the Commissioner made under s 9 of the Road Traffic (Administration) Act 2008 (WA).
[9] Exhibit 4, Government Gazette 1 September 2019.
The prosecution called one witness at trial, being Mr Warren Drake, camera operator.[10] The appellant gave evidence on her own behalf at the hearing.[11] I will outline the scope of each of the witnesses' testimony at trial.
Prosecution witness - Mr Warren Drake
[10] ts 11 (18/02/2021).
[11] ts 29 (18/02/2021).
Mr Drake is a speed camera operator who, on 12 July 2020, attended at Kwinana Freeway near the Narrows Bridge to undertake his duties. A certificate stating that Mr Drake was competent to use the Jenoptik speed measuring and recording device pursuant to s 117 of the Road Traffic (Administration) Act was received in evidence.[12]
[12] Exhibit 5, Certificate of Competency of Mr Drake dated 30 March 2020.
Mr Drake gave evidence that he observed a speed sign, approximately 500 metres from the location of the device, stating that the speed limit was 80 km/hr.[13] Mr Drake set the device and recorded that the self-auto test determined that the device was operating accurately.[14] A deployment log recording the location and actions undertaken by Mr Drake was received into evidence.[15]
[13] ts 13 (18/02/2021).
[14] ts 14 - 15 (18/02/2021).
[15] Exhibit 6, Deployment log of Operator Drake on 12 July 2020.
Mr Drake stated that whilst operating the camera a vehicle, 1GLY‑025, passed through the device which recorded the speed of that vehicle as being 92km/hour.[16] Mr Drake stated that the crosshair correctly positioned the vehicle and thereby identified that the vehicle was the vehicle that was speeding.[17] The photographic evidence from the device recording the actual photograph of the vehicle and the plate image and face image of the driver was received in evidence.[18] Mr Drake was asked whether he produced the photograph or whether someone else did, to which he answered 'this document is produced from upstairs'.[19] At the completion of the deployment of the device, Mr Drake stated that he completed another self‑auto check determining that the device was working accurately.[20] Mr Drake then checked the speed signs on the roadway again.[21]
[16] ts 16 (18/02/2021).
[17] ts 17 (18/02/2021).
[18] Exhibit 7, Photographic evidence taken at 10.13 am on 12 July 2020.
[19] ts 17 (18/02/2021).
[20] ts 17 (18/02/2021).
[21] ts 17 (18/02/2021).
In cross‑examination, Mr Drake accepted that he did not check the accuracy of the device against a moving vehicle.[22] Further, Mr Drake accepted that he did not check each vehicle as it passed the device and then issued the infringement notice. Rather, he relied upon the photograph taken by the device which he observed at the scene of the offence on an iPad.[23] Mr Drake confirmed that the date and time recording on the device is checked for accuracy by the police prior to deploying the device.[24] Mr Drake was asked whether the device was in 'the clear line of sight of the vehicle'.[25] Mr Drake stated that the crosshairs of the device show each vehicle separately if there are multiple vehicles exceeding the speed limit.[26] Mr Drake stated that the laser crosshair, which identified the appellant's vehicle, precluded another vehicle 'tripping the laser'.[27]
Defence case - the appellant's evidence
[22] ts 19 (18/02/2021).
[23] ts 21 (18/02/2021).
[24] ts 24 (18/02/2021).
[25] ts 26 (18/02/2021).
[26] ts 26 (18/02/2021).
[27] ts 26 (18/02/2021).
The appellant gave evidence that during the morning of 12 July 2020 she was in Kings Park taking photographs.[28] The appellant stated that her camera's clock was set six minutes fast and that her last photograph was recorded as being taken at 10.03.02 am, which meant she was in Kings Park at 9.57 am on 12 July 2020.[29] The appellant stated that she did not leave Kings Park immediately after taking the photograph but was unsure how long after taking the photograph she did depart.[30] The appellant tendered the raw data information for her photographs which confirmed the time and date that the photographs were taken.[31]
[28] ts 30 (18/02/2021).
[29] ts 30 (18/02/2021); Exhibit 8A, Image of raw data information camera 10.02.44 am; Exhibit 8B, Camera raw data information 10.03.02 am.
[30] ts 30 (18/02/2021).
[31] Exhibit 8A, Image of raw data information 10.02.44 am; Exhibit 8B, Camera raw data information 10.03.02 am.
In cross‑examination, the appellant accepted that she drove to the carpark in Kings Park and when leaving the location she drove southbound, being the driver of the vehicle without any passengers.[32] The appellant confirmed that her camera was not calibrated with any external chronometer but that she checks the camera against her mobile phone to confirm the time.[33] The appellant stated that she did not check the time on her camera against her mobile phone on 12 July 2020.
[32] ts 36 (18/02/2021).
[33] ts 36 (18/02/2021).
The appellant gave testimony that she does not undertake any mechanical inspections of her speedometer but does use roadside check devices. The appellant said that she believed her speedometer was correct but that it had not been examined since 'last year'.[34]
[34] ts 37 (18/02/2021).
The appellant confirmed that she did not 'know exactly' what time she left Kings Park.[35]
[35] ts 36 (18/02/2021).
The appellant stated that her main dispute was the alleged speed and time of the offending. The appellant gave testimony that she accepted that she was exceeding the speed limit but disputes the speed at which it is alleged she was exceeding the speed limit.[36] The appellant stated that she was travelling at 85 km/hr. The prosecutor then asked the following questions:[37]
[36] ts 37 (18/02/2021).
[37] ts 37 - 38 (18/02/2021).
These letters indicate that you were, in fact, driving the vehicle on that day; is that correct?---Correct. I've never disputed that.
And your sole dispute is with the speed and the time. You ---?---Not my sole dispute, but the main one.
Your main one. Do you accept that you were exceeding the speed limit in that (indistinct)---I do.
Okay. But your issue is with the speed alleged?---The - the alleged. Yes.
HER HONOUR: So she accepts she is speeding?
STOKELEY, MR: That's what she said.
HER HONOUR: Okay.
STOKELEY, MR: Well - - -?- - -But then - I should clarify that to being pedantic. It was a short time as I was accelerated. Do you wish to question me or can I ask - describe the incident as it happened?
Perhaps if you focus on the question that I'm asking, Ms Ryan. Do you know, in fact, what speed you were going?---Eighty‑five.
Eighty-five. And how do you know that?----Because I looked at the speedometer as I went past the speed device in the car.
The speed device. Okay. But you haven't had that speedometer calibrated other than these road signs that flash up?----No.
The appellant, whilst accepting that she exceeded the speed limit, did not accept that her vehicle passed the device at the time alleged. Rather, her vehicle passed the device on the particularised date in excess of the speed limit, but not at the specific time alleged.
The Magistrate's decision
The learned magistrate delivered oral reasons at the conclusion of the hearing. Her Honour commenced her reasons for decision by stating that the burden of proof in respect of every element of the offence is on the prosecution and that that burden never shifts to the accused. The learned magistrate stated that whilst the accused elected to give evidence, she is not required to prove that her account is true given that the onus is on the prosecution. The learned magistrate stated that even if the court prefers the evidence of the prosecution, the court should not convict unless it is satisfied beyond a reasonable doubt of the truth of that evidence. If the evidence leaves a court with a reasonable doubt as to whether the prosecution has made out its case in respect of any element of the offence or any essential fact that it must prove, then the court is bound in law to find the appellant not guilty.[38]
[38] ts 46 (18/02/2021).
The learned magistrate then referred to the relevant evidentiary provision, being s 109 of the Road Traffic (Administration) Act, which provides that in the prosecution of an offence under a road law, an averment in the prosecution notice as to any of the cited matters is to be taken to be proved in the absence of proof to the contrary.
The learned magistrate referred to s 117A of the Road Traffic (Administration) Act which provides evidentiary provisions for images recorded by 'speed measuring and recording equipment'. The learned magistrate, whilst identifying the relevant provisions of ss 117 and 117A of the Road Traffic (Administration) Act, did not distinguish between the provisions that apply to 'speed measuring equipment' and those that apply to 'speed measuring and recording equipment'. Her Honour did set out the definitions of both types of equipment. Her Honour only referred to the definition of 'authorised person' in relation to 'speed measuring equipment'. The learned magistrate correctly set out ss 117(6) and 117(7A) and also s 117(4) but did not make reference to s 117(7B). The learned magistrate found that the Jenoptik was an apparatus approved under s 117(2)(c) but otherwise in her reasons referred to 'speed measuring equipment'. The learned magistrate accepted that Mr Drake was an authorised person in relation to the Jenoptik. Her Honour made the following observations in respect of Mr Drake's evidence:[39]
[T]he evidence is prim[a] facie evidence of the speed … that the accused's vehicle was moving at the time, and of the use of the Jenoptik in relation to that vehicle. Well, if I can put it this [w]ay. There's prim[a] facie … evidence of the use of that Jenoptik at the particular location, and the identity of the vehicle 1GLY‑025 being recorded on that equipment at the particular time, which is 10:13, and the speed at which the vehicle was moving, which was 94 kilometres per hour, as recorded by that equipment at that time.
… [In a] prosecution for an offence under any written law, evidence may be given of the use of speed measuring equipment by an authorised person in relation to the vehicle and of the speed at which that vehicle was moving as ascertained by the use of that equipment in relation to the vehicle.
[39] ts 49 (18/02/2021).
It is clear from the learned magistrate's reasons that her Honour relied upon s 117(4) for the prima facie effect of that evidence.
The learned magistrate succinctly but accurately outlined the evidence of the appellant which challenged whether her vehicle was the vehicle that was accurately recorded at the time and speed which was alleged. The learned magistrate referred to the appellant's evidence that she challenged the manner in which the speed was detected and that one of the issues raised was the absence of raw data on the screenshot of the photograph. The learned magistrate stated that there was no obligation on the police to upload the original photograph with the original data and, in any event, that information can be obtained if sought.[40] The learned magistrate stated that she found the appellant to be genuine in her assertions and that she was endeavouring to be law abiding and generally a careful driver.
[40] ts 49 (18/02/2021).
The learned magistrate stated, in conclusion, that the appellant had not displaced the prima facie effect of the prosecution evidence in the sense required by the test referred to in Magden v Ashe,[41] Davis v Armstrong[42] or Radalj v Taylor,[43] by way of example. Accordingly, the learned magistrate was satisfied, based on the prima facie effect of the prosecution's evidence, as well as the evidence adduced by the prosecution, that the elements of the charge were proven beyond a reasonable doubt.
[41] Magden v Ashe (1992) 17 MVR 218.
[42] Davis v Armstrong (1993) 17 MVR 190.
[43] Radalj v Taylor (1997) 26 MVR 11.
Appeal
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[44]
[44] Criminal Appeals Act 2004 (WA), s 9(1).
The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[45] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[46]
[45] Criminal Appeals Act 2004 (WA), s 9(2).
[46] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).
The appellant relies upon four grounds of appeal in the following terms:[47]
1.Magistrate ignored evidence proving that I could not have been in the location of alleged offence at alleged time and has denied my rights to a fair and lawful trial based on evidence that can not be proven or verified.
2.Made a decision based on evidence not brought before the court by the police prosecution or the accused.
2.Interfered with rights of the accused by giving misleading advice and overturning advice as to what and how evidence could be submitted.
4.Interfered with rights of accused by not giving due consideration to matters raised in relation to costs and an individual's rights per Article 15 of the International Covenant on Civil and Political Rights, to which Australia is a signatory.
[47] Appeal Notice filed 12 April 2021.
The appellant's written submissions raise a myriad of contentions with the consequence that it is difficult to discern the issues being ventilated with clarity. In any event, the respondent conceded that the learned magistrate did err in law in relying upon the line of reasoning that commenced with the decision of Murray J in Davis v Armstrong and thereby, misapplied the legal onus and standard of proof.[48] The respondent conceded that this error of law may be considered under the terms of ground 1 and therefore, leave should be granted and the ground has been made out.
[48] Waite v Hennah [2021] WASCA 69; (2021) 96 MVR 58.
Further, the respondent conceded that there was a miscarriage of justice in that the prosecution, having not produced a certificate under s 117A(2) of the Road Traffic (Administration) Act or testimony from a witness, failed to prove that the image of the appellant's vehicle was produced from data retrieved from the speed measuring and recording equipment and therefore was recorded by that equipment at the specified time and location. Therefore, the prosecution had not met the requirements of proof pursuant to s 117 of the Road Traffic (Administration) Act.[49] The respondent conceded that this error of law may be considered under the terms of ground 2 and therefore, for that reason leave should be granted in respect of ground 2 and the ground has been made out.[50]
[49] Ireland v Jackson [2021] WASC 362 [45] - [47].
[50] Submissions of respondent by letter dated 6 December 2021.
Further, the respondent submitted that the learned magistrate erred in law by applying s 117(4) of the Road Traffic (Administration) Act when the applicable facilitative provisions of the Act were ss 117(6), (7A) and (7B). Therefore, the respondent proposed that the appellant should rely upon a further ground of appeal pleading that error of law. Accordingly, the appellant at the hearing made that application and was granted leave to rely upon a further ground of appeal, being ground 5 in the following terms:
5.The learned magistrate erred in law in relying upon s 117(4) of the Road Traffic (Administration) Act when in the circumstances the Jenoptik device was a speed measuring and recording equipment approved under s 117(2)(c) and therefore the facilitative provisions of the Road Traffic (Administration) Act were ss 117(6), (7A) and (7B).
Assessment of the merits of the appeal
I will consider grounds 1, 2 and 5 before determining the remaining grounds of appeal.
Ground 1
Ground 1 contends that the learned magistrate ignored evidence proving that the appellant could not have been in the location of the offence at the alleged time and has denied the appellant 'her rights based on evidence that cannot be proven or verified'. The appellant's written submissions raise a number of contentions that may be dealt with under the rubric of this ground of appeal.
The respondent submitted that there is no merit in the appellant's contentions but did concede that the learned magistrate erred in law in relying upon the line of authority commencing with Davis v Armstrong and, therefore, did not apply the correct legal onus and standard of proof. Therefore, the respondent accepted that ground 1 has been made out for that reason. I am satisfied that the respondent's concession is properly made for the following reasons.
Onus of Proof - Davis v Armstrong line of authority
In Waite v Hennah,[51] the Court of Appeal held that the reasoning in the line of cases commencing with Davis v Armstrong, that if the prosecution satisfies the criteria in s 117(4) of the Road Traffic (Administration) Act the onus shifts to the accused to disprove, on the balance of probabilities, that the speed of the vehicle had not exceeded the speed limit, was erroneous. Rather, s 117(4) is a means by which the prosecution may meet its onus and standard of proof. In the absence of evidence, whether advanced by the prosecution or accused, which is inconsistent with the facts to be proved, the prima facie evidence becomes conclusive proof of that fact. However, at all times the legal burden of proof remains with the prosecution.[52] For the following reasons, I have determined that the learned magistrate, having followed and applied the reasoning from the decision in Davis v Armstrong, did err in law by not applying the correct legal onus and standard of proof.
[51] Waite v Hennah [2021] WASCA 69; (2021) 96 MVR 58.
[52] Waite v Hennah [2021] WASCA 69 [87] - [88].
Section 117 of the Road Traffic (Administration) Act relevantly provides:
(4)In a prosecution for an offence under any written law evidence may be given of the use of speed measuring equipment by an authorised person in relation to a vehicle and of the speed at which that vehicle was moving as ascertained by the use of that equipment, and that evidence is prima facie evidence of the speed at which that vehicle was moving at the time of the use of that equipment in relation to that vehicle.
(5)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.
(6)In a prosecution for an offence under a written law evidence may be given of -
(a)the use of speed measuring and recording equipment at a particular location; and
(b)the identity of a vehicle as recorded by that equipment at a particular time; and
(c)the speed at which a vehicle was moving as ascertained and recorded by that equipment at that time.
(7A)The evidence referred to in subsection (6) is prima facie evidence of the identity of the vehicle and the speed at which it was moving at that time and location.
(7B)In a prosecution mentioned in subsection (6), evidence of the matters referred to in that subsection may be given in the form of an image of the vehicle on which is recorded the matters referred to in subsection (2)(c), as ascertained and recorded by the speed measuring and recording equipment at the time and location referred to in subsection (6).
(7)In a prosecution mentioned in subsection (4), (5) or (6), evidence by an authorised person that apparatus used by the person was speed measuring equipment, speed measuring and recording equipment or distance measuring equipment is prima facie evidence of that fact.
(8)In a prosecution mentioned in subsection (4), (5) or (6), a certificate purporting to be signed by the Commissioner of Police certifying that a specified person is, or was at the material time, a person certified by the Commissioner as being competent to -
(a)use distance measuring equipment; or
(b)use speed measuring equipment; or
(c)install, set up, test or retrieve data from, speed measuring and recording equipment or produce images from the data,
is prima facie evidence of the matters in the certificate, without proof of the signature of the person purporting to have signed it or proof that the purported signatory was the Commissioner.
(9)Nothing in this section is to 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 under a written law.
In Waite v Hennah, the Court of Appeal considered the evidentiary provisions concerning 'speed measuring equipment'. Therefore, the issue for determination that arises is whether the reasoning of the Court of Appeal in Waite v Hennah applies to the interpretation of ss 117(6) and (7A) which concerns 'speed measuring and recording equipment'.
Whilst there are structural differences between s 117(4) and ss 117(6) and (7A), there is no material difference in the expression of the onus of proof between the respective subsections that supports a construction that the reasoning of the Court of Appeal in Waite v Hennah does apply. The text of ss 117(6) and (7A) does not provide for any shift in the legal onus or standard of proof. Rather, ss 117(6) and (7A) provides a means by which the prosecution may meet its onus and standard. That is, an evidentiary provision which assists in a prosecution by providing a means for the prosecution to meet its onus and standard of proof. The prima facie evidence is sufficient in law on its own to discharge the prosecution's legal onus of proof beyond a reasonable doubt of the fact in issue being sought to be proven by ss 117(6) and (7A).
If there is evidence that is inconsistent with the fact to be proven by the prima facie evidence, the learned magistrate must determine on the whole of the evidence whether that fact is proven beyond reasonable doubt. The learned magistrate may do so taking into account the prima facie proof established by the prosecution adducing evidence that satisfies the prima facie evidence provisions in ss 117(6) and (7A). The learned magistrate will determine whether, on the whole of the evidence, the fact is established beyond a reasonable doubt. The learned magistrate may, but need not, treat the prima facie proof of the fact as establishing that degree of proof.
The learned magistrate outlined the appellant's contentions regarding the manner in which the speed was determined and then stated:[53]
[T]he evidence from Ms Ryan has not displaced the prima facie effect of the prosecution evidence in the sense referred to and the test as referred to in Magden v Ashe [1992] 17 MVR 218, Davis v Armstrong [1993] 17 MVR 190 or Radalj v Taylor [1997] 26 MVR 11 by way of example. And I'm satisfied, based on the prima facie effect of the prosecution's evidence, as well as the evidence adduced on behalf of the prosecution, that the elements of the charge are established beyond a reasonable doubt.
[53] ts 49 - 50 (18/02/2021).
Whilst the learned magistrate did not expressly refer to any shift in onus by stating that the appellant had not displaced the prima facie effect 'in the sense referred to and test as referred to' in Davis v Armstrong, her Honour clearly had determined that the appellant had failed to satisfy the onus on the balance of probabilities. By so doing, the learned magistrate erred in law and I am therefore satisfied that leave to appeal is granted and the ground is upheld. I need not determine the other contentions made by the appellant in her written submissions that may be considered as forming part of ground 1.
Ground 2
By ground 2 the appellant contends that the learned magistrate made a decision based on evidence not brought before the court by the police prosecution or the accused. The ground appears to agitate the appellant's contention during the trial hearing that the original photographs of her vehicle or associated metadata was not available. Her Honour made the observation in discourse that the photograph of the vehicle could be obtained if the appellant had sought to do so. Her Honour accepted that the photographs on the WA Police website did not include the metadata details.
The learned magistrate made her findings and determined the charge solely on the evidence received at the hearing. Her Honour did not consider other possible photographs or the existence of any metadata material. Neither the appellant nor the respondent sought to do so at the hearing.
The respondent concedes that the prosecution failed to produce admissible evidence to prove that the photograph relied upon was actually retrieved from the speed measuring and recording equipment and therefore, was recorded by that equipment at the specified time and location.[54]
[54] Submission of respondent by letters dated 30 November 2021 and 6 December 2021.
In Ireland v Jackson, Allanson J stated that where a certificate accompanies the image relied upon by the prosecution, unless there is evidence to the contrary, the image 'is to be accepted as having been recorded as described in s 117(7B)'.[55] In the absence of the certificate, the prosecution must prove the image on which it relies was recorded by the speed measuring and recording equipment at the specified time and location. In Ireland v Jackson, the prosecution did not produce a certificate accompanying the image nor did the prosecution witness give evidence concerning the means of retrieving the image from the speed measuring and recording equipment. Therefore, Allanson J found that the prosecution had not met the requirement for proof pursuant to s 117 of the Road Traffic (Administration) Act by evidence of an image from speed measuring equipment.[56]
[55] Ireland v Jackson [2021] WASC 362 [45].
[56] Ireland v Jackson [2021] WASC 362 [47].
The respondent did not seek to distinguish Ireland v Jackson nor challenge the correctness of the reasoning of Allanson J. Rather, the respondent accepted that the error made by the prosecution in Ireland v Jackson was made in the prosecution of the appellant.
At the hearing before the learned magistrate the respondent relied upon the evidentiary certificate which did not refer to the photograph tendered in evidence nor did Mr Drake give evidence concerning the retrieval of the photograph from the speed measuring and recording equipment. Mr Drake during his testimony stated that the photograph 'was produced from upstairs.'[57] There was no further evidence concerning the means by which the image was retrieved from the speed measuring and recording equipment. Accordingly, I find that the concession of the respondent is properly made. Therefore, leave to appeal is granted on ground 2 and the ground is upheld.
Ground 5
[57] ts 17 (18/02/2021).
By ground 5 the appellant contends that the learned magistrate erred in law by relying upon s 117(4) of the Road Traffic (Administration) Act, when in the circumstances the Jenoptik device was 'speed measuring and recording equipment' approved under s 117(2)(c) and therefore, the facilitative provisions of the Road Traffic (Administration) Act were instead ss 117(6), (7A) and (7B).
There is a distinction in the Road Traffic (Administration) Act between 'speed measuring equipment' and 'speed measuring and recording equipment'. 'Speed measuring equipment' is an apparatus approved as such by the relevant Minister pursuant to s 117(2)(a) for the purposes of ascertaining the speed at which a vehicle is moving. 'Speed measuring and recording equipment' is an apparatus approved as such by the relevant Minister pursuant to s 117(2)(c) for the purpose of not merely ascertaining the speed at which a vehicle is moving but also recording an image of the vehicle and various other matters. In respect of 'speed measuring equipment', the relevant evidentiary provision is s 117(4). In respect of 'speed measuring and recording equipment', the relevant evidentiary provisions are ss 117(6), (7A) and (7B). There are evidentiary provisions which apply to both 'speed measuring equipment' and 'speed measuring and recording equipment', being ss 117(7) and (8).
The learned magistrate identified the relevant provision of s 117 of the Road Traffic (Administration) Act but did not distinguish between the provisions applying to 'speed measuring equipment' and those applying to 'speed measuring and recording equipment'. The learned magistrate outlined the definitions of both 'speed measuring equipment' and 'speed measuring and recording equipment' but only referred to the definition of 'authorised person' in relation to 'speed measuring equipment'.[58]
[58] ts 46 (18/02/2021).
The learned magistrate correctly found that the Jenoptik was an apparatus approved under s 117(2)(c). However, her Honour then, in her reasons, referred to the apparatus as 'speed measuring equipment'. The learned magistrate correctly found that Mr Drake was an 'authorised person' in respect of the Jenoptik apparatus and summarised his evidence as follows:[59]
There's evidence of Mr Drake who has the certificate, who is competent pursuant to the certificate of competency in relation to the certified equipment and the evidence is prime [sic] facie evidence of the speed of the accused's vehicle, that the accused's vehicle was moving at the time, and of the use of the Jenoptik in relation to that vehicle. Well, if I can put it this day [sic]. There's prime [sic] facie of the evidence of the use of that Jenoptik at the particular location, and the identity of the vehicle 1GLY‑025 being recorded on that equipment at the particular time, which is 10.13, and the speed at which the vehicle was moving, which was 94 kilometres per hour, as recorded by that equipment.
And that speed was adjusted to 92 kilometres per hour (indistinct) prosecution for an offence under any written law, evidence may be given of the use of speed measuring equipment by an authorised person in relation to a vehicle and of the speed at which that vehicle was moving as ascertained by the use of that vehicle. And that evidence is prime [sic] facie evidence of the speed at which that vehicle was moving at the time of the use of that equipment in relation to that vehicle.
[59] ts 49 (18/02/2021).
Therefore, the learned magistrate relied upon s 117(4) as the basis by which the evidence was prima facie evidence. However, the evidence was properly received as prima facie evidence under ss 117(6) and (7A). Therefore, the learned magistrate erred in law.
Accordingly, leave to appeal is granted in respect of ground 5 and the ground is upheld.
Ground 3
Ground 3 pleads that learned magistrate interfered with the rights of the accused by giving misleading advice and overturning advice as to what and how evidence could be submitted.
I discern from the written submissions that the appellant contends that the learned magistrate did not afford her a fair hearing by preventing her giving evidence[60] and being unable to obtain legal representation.[61]
[60] Appellant's submissions [4.1] - [4.2.3].
[61] Appellant's submissions [6.1].
The requirement of a court to afford a defendant natural justice includes an obligation to afford procedural fairness. The principles of procedural fairness require that a party be given an opportunity to present their case and be heard.
The requirements of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice and therefore, what is necessary to avoid practical injustice will depend upon the particular circumstances.[62]
[62] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ), [48] (McHugh & Gummow JJ).
The contention that the appellant was not afforded procedural fairness is without merit. The appellant was afforded the opportunity to present her case by the learned magistrate. The appellant examined the prosecution witness, gave evidence and made submissions to the learned magistrate.
The appellant decided to represent herself at the hearing as she did on appeal. A party is not denied procedural fairness merely because they do not have legal representation. In circumstances where an accused is not legally represented a magistrate should provide the accused with such information and assistance as is necessary to ensure that they have a fair trial.[63] The learned magistrate in discourse with the appellant at the commencement of the hearing outlined the elements of the charge, being first, that the appellant was driving a vehicle on a road, second, that the speed limit on the road was restricted to 80 km/h and third, that the appellant drove in excess of the speed limit, namely at a speed of 92 km/h. The learned magistrate afforded every courtesy to the appellant as a self-represented accused by explaining the procedural aspects of the hearing and assisting in a measured and appropriate manner at various junctures during the hearing.
[63] O'Connell v The State of Western Australia [2012] WASCA 96 [106].
The appellant contended in her written submissions that the learned magistrate did not permit her to refer to a 'German court ruling' regarding the use of the Jenoptik device. Her Honour ruled that the proposed testimony was inadmissible.[64] The learned magistrate did not err in so ruling.
[64] ts 33 (18/02/2021).
Ground 3 is without merit and, therefore, leave to appeal is not granted.
Ground 4
Ground 4 pleads that the learned magistrate 'interfered with the rights of the accused by not giving due consideration to matters raised in relation to costs and an individual's rights per Article 15 of the International Covenant on Civil and Political Rights to which Australia is a signatory'. The contention of the appellant is that the learned magistrate erred in failing to have regard to a relevant consideration when fixing costs.
Given that the appellant was convicted, the learned magistrate had the power to order that the appellant pay all or part of the prosecution's costs.[65] Her Honour ordered that the appellant pay the respondent's costs in the amount of $248.70. The decision to order costs is discretionary. An appeal concerning the exercise of a discretion should only be allowed where it is established that the primary judge acted upon a wrong principle, took into account irrelevant matters, failed to have regard to relevant considerations or made a mistake as to the facts, or where the result is so unreasonable or plainly unjust that the appellate court may infer there has been a failure properly to exercise the discretion.[66] Her Honour did not err in the exercise of the discretion to order costs.
[65] Criminal Procedure Act 2004 (WA), s 67(2).
[66] House v King [1936] HCA 40; (1936) 55 CLR 499.
An international treaty obligation of the Commonwealth is irrelevant to the exercise of the learned magistrate's discretion to order cost. The provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into the municipal law by statute. A treaty which has not been incorporated into municipal law cannot operate as a direct source of individual rights and obligations under that law.[67]
[67] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.
Ground 4 is without merit and accordingly, leave to appeal is not granted on that ground.
Conclusion
Accordingly, leave to appeal is granted on grounds 1, 2 and 5 and leave is not granted on grounds 3 and 4. I accept the respondent's submission that the error the subject of ground 2 means that the prosecution did not prove the image from the speed measuring and recording equipment on which the charge relied and therefore there has been a substantial miscarriage of justice.[68] The appeal is thereby allowed and the conviction is set aside.
[68] Criminal Appeals Act 2004 (WA), s14(2).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice McGrath
14 DECEMBER 2021
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