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Sacchero v Rogers

Sacchero v Rogers

Case [2023] WASC 324 25 August 2023

Appeal

Admissibility of Evidence

Expert Evidence

Statutory Construction

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SACCHERO -v- ROGERS [2023] WASC 324
CORAM:   FIANNACA J
HEARD:   2 DECEMBER 2022
DELIVERED          :   25 AUGUST 2023
FILE NO/S:   SJA 1033 of 2022
BETWEEN:   ANDREW CARLO SACCHERO
Appellant
AND
PETER ROGERS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE K TAVENER
File Number            :   MI 11422/2020

Catchwords:

Criminal law - Appeal against conviction for driving a motor vehicle at 45 km/h or more above the speed limit - Whether Magistrate erred in law and fact - Where prosecution relied on image from speed measuring and recording equipment - Whether inference available that image tendered was produced from data from speed, measuring and recording equipment - Section 117 of the Road Traffic (Administration) Act 2008 (WA) considered

Legislation:

Criminal Appeals Act 2004 (WA)
Evidence Act 1906 (WA)
Road Traffic Act 1974 (WA)
Road Traffic (Administration) Act 2008 (WA)
Interpretation Act 1984 (WA)
Road Traffic Legislation Amendment Bill (No 2) 2015 (WA)
Magistrates Court Act 2004 (WA)

Result:

Leave granted in respect of amended ground of appeal
Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr K Bates
Respondent	:	Ms R Panetta

Solicitors:

Appellant	:	Ken Bates Barrister & Solicitor
Respondent	:	State Solicitor's Office

Cases referred to in decision:

Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 92 ALJR 33
Bevan v State of Western Australia [2010] WASCA 101; (2010) 202 A Crim R 27
Chiou Yaou v Morris (1987) 46 NTR 1
Independent Commission Against Corruption v Cuneen [2015] HCA 14; (2015) 256 CLR 1
Ireland v Jackson [2021] WASC 362
Mohammadi v Bethune [2018] WASCA 98
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Ryan v Muscara [2021] WASC 453
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The Queen v Hillier [2007] HCA 13; 228 CLR 618
Waite v Hennah [2021] WASCA 69

FIANNACA J:

Introduction

This is an appeal pursuant to s 7 of the Criminal Appeals Act 2004 (WA) against a conviction after trial in the Magistrates Court of an offence under s 60A(2)(b) of the Road Traffic Act 1974 (WA) (the RTA) of driving a motor vehicle at 45 km/h or more above the speed limit on a length of road,[1] namely Gnangara Road in Ellenbrook, on 14 September 2020.[2]
[1] Prosecution Notice dated 20 October 2020 for charge no MI 11422/2020.
[2] Reasons for decision, Magistrates Court of Western Australia (Criminal Division), Midland, Case No MI 11422/2020 (Magistrate Tavener), delivered 25 February 2022 (erroneously recorded in the heading as 21 January 2020) (the magistrate's Reasons) [1].
The offence was described in the Magistrates Court and on appeal as an offence of 'reckless driving' or 'driving in a reckless manner' by exceeding the speed limit by 45 km/h or more.[3] In convicting the appellant, the learned magistrate said: 'The defendant is guilty…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Sacchero v Rogers

Details

AGLC: Sacchero v Rogers [2023] WASC 324
Case: [2023] WASC 324
Decision Date

CaseChat Overview and Summary

This is an appeal against conviction for an offence under s 60A(2)(b) of the Road Traffic Act 1974 (WA) of driving a motor vehicle at 45 km/h or more above the speed limit. The appellant, Andrew Carlo Sacchero, pleaded not guilty but was convicted in the Magistrates Court. The prosecution case was that, at 9.00 am on 14 September 2020, the appellant drove his vehicle at a speed of 127 km/h in a zone where the speed limit was 70 km/h. The speed at which the vehicle was being driven was measured and recorded by approved speed measuring and recording equipment, colloquially referred to as a 'speed camera'. The prosecution relied on an image of the appellant's vehicle alleged to have been recorded by the equipment at the relevant time. The image purported to record the speed at which the vehicle was travelling, which was recorded as 130 km/h. The appellant did not dispute that the image depicted his vehicle being driven by him at the relevant time and location, nor did he challenge the accuracy of the equipment in ascertaining and recording the speed of vehicles it detected and captured in images. However, he argued that the prosecution had not proved that the image had been produced from data recorded by the equipment at the relevant time and location. The learned magistrate rejected the appellant's argument, finding that the speed recorded in the image was the product of the authorised equipment processing properly acquired data at the time and place recorded. The appeal was brought under the Criminal Appeals Act 2004 (WA). The leave of the Supreme Court was required for the ground of appeal, which was that the magistrate erred in concluding that the speed of 130 km/h that was recorded on an image of the relevant vehicle was adequately proven to have been ascertained and recorded by the speed measuring and recording equipment at the specified time and location. The Supreme Court granted leave to appeal on that ground, but the appeal was dismissed. It was open to the magistrate to rely on the combination of the evidence of the camera operator, the Operator Activity List, and the photographic evidence as evidence under s 117(6) of the Road Traffic (Administration) Act 2008 (WA) about the use of the speed measuring and recording equipment at the relevant location in Ellenbrook on 14 September 2020; the identity of the appellant's vehicle as recorded by that equipment at about 9.00 am on that date; and the speed at which the appellant's vehicle was moving as ascertained and recorded by the speed measuring and recording equipment at that time. The evidence established that the camera operator was an authorised person for the purposes of s 117, as certified under s 117(8) (exhibit 1). The evidence also established that the speed measuring and recording equipment was an apparatus approved for the purposes of doing the things set out in s 117(2)(c), which included ascertaining and recording the speed at which a vehicle was moving, and recording an image of that vehicle, with the date, location and speed limit for the location. It was open for the magistrate to find that the speed measuring and recording equipment had recorded the speed of the appellant's vehicle at the relevant time and place. There was no dispute about the accuracy of the speed measuring and recording equipment in ascertaining and recording the speed of a vehicle that was approaching it. The camera operator's evidence established it was tested both before and after the deployment and that it was working properly. His evidence established that the data recorded by the speed measuring and recording equipment was sent wirelessly to the infringement image processing system by the procedure he described, and that the speed measuring and recording equipment confirmed it was sending the data and that the integrity of the data was maintained. The fact that data from the relevant time and location, depicting the appellant's vehicle, was on the infringement image processing system was proof that the data from the speed measuring and recording equipment was sent and uploaded to that system. In the absence of any evidence to indicate that the integrity of the data was compromised in the uploading process, it is not a reasonable hypothesis that only the data admitted by the appellant, and not the speed recorded by the speed measuring and recording equipment, was accurately uploaded to the system. In other words, it can be inferred that the information concerning speed in exhibit 5 was ascertained and recorded by the speed measuring and recording equipment, because all of the other information appearing on the image is accepted to have been ascertained and recorded by the equipment at the relevant time and place, and the evidence otherwise shows that the equipment was functioning as intended and purported to send the data it had recorded to the system from which exhibit 5 was produced. Further, there was other evidence that supported the inference that the speed of 130 km/h shown on exhibit 5 was ascertained and recorded by the speed measuring and recording equipment at the time and location recorded on the image. The Operator Activity List established that an event occurred and was recorded by the speed measuring and recording equipment at 09:00:36 on the day in question, at the relevant location, in which a vehicle was ascertained to be travelling at 130 km/h in lane number 2. The time on the image in exhibit 5 is 09:00:18. While the discrepancy of 18 seconds is a relevant consideration in determining whether the event recorded in the Operator Activity List is the same event depicted in exhibit 5, the evidence supports the conclusion that it was the same event. The evidence established that the speed measuring and recording equipment was working properly and that there was no issue with the file integrity. Therefore, there is a reasonable inference that the speed measuring and recording equipment would have detected and recorded any vehicle travelling in excess of the speed setting set by the camera operator, which the deployment log and the Operator Activity List showed to be 78 km/h. The fact that the appellant's vehicle was captured on camera and recorded by the speed measuring and recording equipment means that it triggered the apparatus by travelling at a speed in excess of the speed setting of 78 km/h. Although the appellant's admission to the police officer might be considered to be ambiguous, as was submitted by both the appellant and the respondent, it was nevertheless either an implied admission that he was driving at the speed recorded on the image, but that he believed the speed limit was 100 km/h, or an admission that he believed he was driving at a speed of 100 km/h. On either interpretation, it was an admission that he was driving at a speed of at least 100 km/h. The Operator Activity List did not record any other speeding event within 18 seconds of the 'hoon event' at 09:00:36. The lane in which the appellant's vehicle is depicted in exhibit 5 may properly be regarded as lane number 2, in that it is the second lane from the outside edge of the road for traffic travelling in the direction the appellant was travelling; in other words, it was the inside lane. Therefore, there is

Orders