Sacchero v Rogers
[2023] WASC 324
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 of reckless driving.'[4] The terms of s 60A(2) do not use the description 'reckless driving', although the heading refers to 'Driving at reckless speed.' The offence commonly referred to as 'reckless driving' is in s 60 of the RTA, which is immediately before s 60A. Section 60 creates an offence of 'wilfully [driving] a motor vehicle in a reckless manner',[5] which is defined to mean 'in a manner (which expression includes speed) that is inherently dangerous or that is, having regard to all the circumstances of the case, dangerous to the public or to any person'.[6] The offence under s 60A(2) does not require proof of the matters constituting 'reckless manner', as defined in s 60(1), or that the conduct was 'wilful'. Section 60A(2) provides:
A person commits an offence if the person drives a motor vehicle at 45 km/h or more above the speed limit —
(a)in a confiscation zone; or
(b)on any other length of road.
[3] The magistrate's Reasons [1].
[4] The magistrate's Reasons [17].
[5] RTA, s 60(1A).
[6] RTA, s 60(1).
However, the penalties for offences contrary to s 60 and s 60A are the same under s 60B of the RTA. It may be that the offence under s 60A(2) reflects a view of the legislature that driving at such excessive speed is inherently dangerous. However, to the extent that the offence may be regarded as a form of 'driving in a reckless manner', that approach is fallacious. It is a separate and distinct offence.
In any event, the offence was pleaded correctly in the prosecution notice, in accordance with the wording of s 60A(2) of the RTA, and the appellant does not contend that the learned magistrate misapprehended the elements of the offence under s 60A(2). Therefore, the use of the descriptions 'reckless driving' or 'driving in a reckless manner' at first instance does not affect the issues in this appeal.
The appellant pleaded not guilty and was tried for the offence on 17 January 2022. He was convicted on 25 February 2022.[7] He was fined $800 and ordered to pay court costs. He was also permanently disqualified from holding or obtaining a driver's licence.
[7] This is the date shown on the prosecution notice. As noted above, the heading of the magistrate's Reasons erroneously shows the date as 21 January 2020.
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.[8] The image purported to record the speed at which the vehicle was travelling. The speed was recorded as 130 km/h. The speed alleged at trial was adjusted down to 127 km/h, for reasons that are not apparent from the hearing. If it was to do with a margin of error, that was not explained.
[8] Exhibit 5.
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. It followed, on the appellant's argument, that the image could not be relied upon as evidence of the speed at which the appellant's vehicle was travelling.
The learned magistrate rejected the appellant's argument. He was satisfied that the speed recorded in the image was the product of the authorised equipment processing properly acquired data at the time and place recorded. Based on the image, his Honour found the charge proved.
By an Appeal Notice filed within time,[9] on 25 March 2022, the appellant sought leave to appeal against his conviction. The Appeal Notice contained two grounds of appeal, as follows:
(1)The learned magistrate did not direct himself that the onus of proof was on the prosecution, that the standard of proof was beyond reasonable doubt and that Mr Sacchero was presumed to be innocent of the charge until such time as he was satisfied that the prosecution had proved the charge beyond reasonable doubt (ground 1).
(2)The trial magistrate erred in concluding that the image (Exhibit 5) that was relied upon by the prosecution to prove the speed of 127 kph which constituted the reckless driving was recorded by the speed measuring and recording equipment at the specified time and location (ground 2).
[9] Criminal Appeals Act 2004 (WA), s 10(3).
The appeal is brought under div 2 of the Criminal Appeals Act. Section 9(1) provides that the leave of the Supreme Court is required for each ground of appeal in an appeal under that Division. Section 9(3) provides that the court must not grant leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding, which is to say that it has a rational and logical prospect of succeeding.[10]
[10] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [55] - [64].
On 29 November 2022, prior to the hearing of the appeal, the appellant filed an application to amend the grounds of appeal to remove ground 1 and to substitute a single ground. The application was not opposed. At the hearing, on 2 December 2022, I granted the application with a further amendment, in relation to the speed, so that the appeal proceeded on the following ground:
The Magistrate erred in concluding that the speed of 130 kilometres per hour 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.
For the reasons that follow, while I would grant leave to appeal on that ground, the appeal should be dismissed.
To put in context my decision to grant leave, it is necessary to outline the unusual procedural history of the appeal.
Procedural history
Although the appellant was represented by counsel at the hearing, who was also his counsel in the Magistrates Court, he filed the Appeal Notice in person and was not represented at that stage.
The nominal respondent in the proceedings is the police officer who signed the prosecution notice. The respondent was represented by counsel from the State Solicitor's Office. On 31 May 2022, the respondent filed a detailed outline of submissions in which it was submitted that leave should be refused in relation to ground 1 of the Appeal Notice, as it had no merit, but that, subject to some rewording of ground 2 of the Appeal Notice (which is reflected in the amended ground of appeal), the respondent conceded that leave should be granted on that ground, and that the appeal should be allowed. The concession was articulated in the outline of submissions as follows:[11]
Subject to slightly rewording proposed ground of the appeal 2, it is conceded that the appellant correctly contends that the Magistrate erred in concluding that the speed of 127 kph 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.
[11] Respondent's outline of submissions dated 31 May 2022 [35]. The reference to 127 km/h reflected the way in which the case had been conducted in the Magistrates Court, as discussed in [6] above, and the original ground 2 in the Appeal Notice.
In accompanying correspondence, copied to the appellant, the respondent proposed that, if the court accepted the concession, and if the appellant adopted the respondent's submissions and indicated that he no longer intended to pursue ground 1, it may be appropriate for the court to determine the appeal on the papers, without the need to hear from the parties. The appellant subsequently indicated he was prepared to proceed on that basis.
However, upon consideration of the respondent's written submissions, the transcript of proceedings, the magistrate's written reasons and the authorities referred to by the respondent, I was not satisfied that I should accept the respondent's concession without hearing further from the parties. I will outline below the reasons why I was not prepared to accept the concession at that stage.
Accordingly, the matter proceeded to an expedited hearing on 2 December 2022. At the hearing, after exchanges between the bench and counsel for the appellant, counsel for the respondent indicated that the concession made on 31 May 2022 was withdrawn, and that the appeal should be dismissed, as the respondent now submitted that there was evidence to prove that the speed of 130 km/h recorded on the image relied on by the learned magistrate was ascertained and recorded by the speed measuring and recording equipment at the time and location specified on the image. In my opinion, that submission was correct.
Legislative provisions
Before turning to the evidence adduced at the trial hearing and the magistrate's reasons for his decision, it is convenient to identify the legislative provisions relevant to this appeal. The offence-creating provision is set out at [2] above. The issues in this hearing require consideration of the evidentiary provisions of the Road Traffic (Administration) Act 2008 (WA).
The long title of the Road Traffic (Administration) Act states that it is an 'Act to provide for the administration and enforcement of the [RTA] … and for other matters relating to road traffic'.
Section 117 of the Road Traffic (Administration) Act provides, relevantly:
117.Certain measuring equipment
(1) In this section and section 117A —
approved procedure, in relation to setting up, installing, testing or retrieving data from speed measuring and recording equipment or producing images from the data, means the procedure approved by the Commissioner of Police;
authorised person —
…
(c)in relation to speed measuring and recording equipment, means —
(i)a police officer; or
(ii)a person certified by the Commissioner of Police as being competent to install, set up, test or retrieve data from, the equipment or produce images from the data;
…
Minister means the Minister to whom the administration of the Police Act 1892 is committed;
speed measuring and recording equipment means apparatus of a type approved by the Minister under subsection (2)(c);
…
(2) The Minister may, from time to time, by notice published in the Gazette, approve of types of apparatus for the purposes of —
…
(c)ascertaining the speed at which a vehicle is moving, recording an image of the vehicle and recording —
(i) the speed at which the vehicle was moving; and
(ii) the date on which the image was recorded; and
(iii) the time and location at which the image was recorded; and
(iv) the speed limit applicable at that location at that time.
…
(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.
…
(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 … (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 … (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 —
…
(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.
Statutory construction requires attention to the text, context and purpose of the statute. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context.[12] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.[13] The material provisions of the statute must be understood, if possible, as parts of a coherent whole.[14]
[12] Mohammadi v Bethune [2018] WASCA 98 [31].
[13] Mohammadi v Bethune [32]; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; Independent Commission Against Corruption v Cuneen [2015] HCA 14; (2015) 256 CLR 1 [31].
[14] Mohammadi v Bethune [35]; Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 92 ALJR 33 [16].
Having regard to the provisions of s 117(6), which is concerned with measuring and recording equipment, it is apparent that s 117(4) is concerned only with equipment that measures speed, but does not record it. This case concerns equipment that both measured and recorded speed, so the relevant provision is s 117(6).
Section 117(6) applies in a prosecution for an offence under s 60A(2)(b) of the RTA.[15] By its terms, the subsection allows for the giving of evidence of the speed at which a vehicle was moving at a particular time and location as ascertained and recorded by speed measuring and recording equipment used at that location. It does not specify, and therefore does not limit, the means by which that evidence may be given. By s 117(7A), the evidence is prima facie evidence of the speed at which the vehicle was moving at that time and location.[16] Section 117(7B) allows for that prima facie evidence to 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). It follows from the terms of s 117(7B) that, if such an image is to be relied upon as the prima facie evidence, it is necessary for the prosecution to prove that the matters referred to in subsection (2)(c), that are recorded on the image, were ascertained and recorded by the speed measuring and recording equipment. However, it is also apparent from the statutory scheme that the only means by which such an image with all relevant information can be produced is by the use of apparatus that has been approved under s 117(2).
[15] It applies in an offence under a 'written law', which is defined by s 5 of the Interpretation Act 1984 (WA) to include any Act passed by the Parliament of Western Australia which is in force (definitions of Act and written law).
[16] As Allanson J noted in Ireland v Jackson [2021] WASC 362 [34] fn 19: The effect of making the evidence prima facie evidence of a fact is that, '[while] in the absence of any other evidence the relevant provision operates to render evidence within its ambit sufficient to discharge the prosecution's onus of proof, wherever there is any other relevant evidence (whether adduced by the prosecution or the defence) it is for the prosecution to prove each element of the offence beyond reasonable doubt': see Waite v Hennah [2021] WASCA 69 [4].
Section 117(7B) does not specify the means by which the prosecution may prove that the matters recorded on the image were ascertained and recorded by the speed measuring and recording equipment. At the hearing of the appeal, the appellant accepted that proof could be by inference, but submitted that there were insufficient primary facts to enable such an inference to be drawn in this case. The primary issue in this appeal is whether there was evidence that the speed recorded on the image relied on by the magistrate was ascertained and recorded by the speed measuring and recording equipment.
Section 117(8) is concerned with proof of the competence of the operator of speed measuring and recording equipment. However, in my view, in specifying the matters about which a certificate signed by the Commissioner is prima facie evidence, the provision provides context for the matters that would need to be addressed by evidence given under s 117(6), if that evidence is to be probative of the facts specified in s 117(6). In other words, that evidence would need to address the installation, setting up and testing of speed measuring and recording equipment, the retrieval of data from such equipment, and the production of images from the data. The reference to testing implies that there be evidence that the equipment was operating as intended to accurately ascertain the speed at which a vehicle is moving and record that speed and the other data specified in s 117(2)(c). The issues of accuracy may be subject to the common law presumption of the accuracy of scientific instruments.[17] It is not necessary to consider further whether the presumption applies to approved apparatus such as the speed measuring and recording equipment used in this case, as the appellant did not dispute that there was evidence before the magistrate that the equipment was operating properly and accurately, as will appear below.
[17] Bevan v State of Western Australia [2010] WASCA 101; (2010) 202 A Crim R 27 [29].
Insofar as a certificate under s 117(8) contemplates that an operator will retrieve data, it is retrieval from the speed measuring and recording equipment. Insofar as it contemplates that an operator will produce an image, it is production of an image from 'the data'. It is apparent that there are two processes contemplated. Nothing in s 117(8), or the other provisions of s 117, specifies the manner in which data is to be retrieved or an image is to be produced from that data. Nor do the provisions stipulate that an operator who is certified to be competent must know the technical intricacies of how data is retrieved, what happens to the data when it is retrieved, or how the image is produced from the data.
Section 117A of the Road Traffic (Administration) Act provides for the tender of a certificate from the Commissioner of Police to accompany an image of the kind referred to in s 117(7B). The certificate is prima facie evidence of matters that would otherwise need to be proved by evidence from a witness, specifically the operator of speed measuring and recording equipment, as occurred in this case.
No such certificate was tendered in this case. However, the provisions of s 117A are relevant to the appeal because the appellant's case was that the matters specified in s 117A(2) are matters that the prosecution would need to prove for the purposes of s 117(7B) to establish that the matters recorded in the image were ascertained and recorded by the speed measuring and recording equipment. That was also the respondent's submission initially, although not maintained by the conclusion of the appeal hearing. Given the appellant's submission, it is necessary to refer to the provisions of s 117A, which is in the following terms:
117A.Evidentiary provisions for images recorded by speed measuring and recording equipment
(1) If, in a prosecution mentioned in section 117(6), evidence is given in the form of an image as described in section 117(7B) and the image is accompanied by a certificate under subsection (2), the image —
(a) is to be accepted as having been recorded as described in section 117(7B), unless there is evidence to the contrary; and
(b) is prima facie evidence of the matters shown in or recorded on the image.
(2) For the purposes of subsection (1), the certificate is a certificate purporting to be signed by the Commissioner of Police, certifying that —
(a) the equipment, specified in the certificate, was speed measuring and recording equipment; and
(b) the equipment was installed or set up by an authorised person, named in the certificate, in accordance with the approved procedure on a day specified in the certificate; and
(c) the equipment was tested by an authorised person, named in the certificate, in accordance with the approved procedure on a day, specified in the certificate, that was within the prescribed number of days (for that type of equipment) before the day on which the alleged offence was committed; and
(d) on the specified day referred to in paragraph (c) and on the day on which the alleged offence was committed, the equipment was accurate and operating properly; and
(e) data relating to the vehicle and its speed, and the time and place at which its speed was ascertained and the data recorded, was retrieved from the equipment by an authorised person, named in the certificate, in accordance with the approved procedure; and
(f) the data referred to in paragraph (e) was used to produce the image by an authorised person, named in the certificate, in accordance with the approved procedure.
(3) The certificate is prima facie evidence of the matters in it.
'Approved procedure', referred to in subsections (2)(b), (c), (e) and (f) of s 117A, is defined in s 117(1) to mean 'in relation to setting up, installing, testing or retrieving data from speed measuring and recording equipment or producing images from the data, … the procedure approved by the Commissioner of Police'. The term is not used in s 117. There was no evidence adduced in the Magistrates Court in respect of 'the procedure approved by the Commissioner of Police'. However, there is no specific requirement under s 117 for proof of that procedure, and there is no provision specifying the manner in which a procedure may be approved by the Commissioner of Police.
The legislative history of s 117 and s 117A of the Road Traffic (Administration) Act, and the relationship between the two sections, was discussed by Allanson J in Ireland v Jackson as follows (footnote omitted; paragraph numbers are reproduced for convenience):
40The effect of s 117A is that prima facie evidence may be adduced by certificate, without calling an authorised person to testify to those matters which are evidenced by the certificate. But s 117A does not limit the prosecution to proof by a certificate under that section. It is an alternative way of proceeding. It remains open for the prosecution to adduce evidence, in accordance with s 117(6).
41Section 117(7B) provides for evidence of the matters referred to in s 117(6) to be given in the form of an image on which the matters referred to in s 117(2)(c), as ascertained and recorded by the speed measuring and recording equipment at the specified location and time, are recorded.
42Section 117A(2) sets out the matters that would normally need to be proved if an image is relied on: that the equipment was set up and tested, that it was accurate and operating properly, and the data was recorded and retrieved from the equipment and used to produce the image relied on.
43I should refer briefly to the argument advanced by the respondent that s 117A provides for an image, for which there is a certificate, to have additional evidentiary effect. The respondent submitted, 'Without the certificate, the image is only prima facie evidence of the matters in s 117(7A), being the vehicle's identity and speed. With the certificate, the image is evidence of everything it shows or is recorded on it'.
44The submission unduly restricts the terms of s 117(7A), which is not limited to the vehicle's identity and speed - it expressly refers to the speed 'at which it was moving at that time and location'.
45It would also be only a partial explanation for the inclusion of s 117A. Where a certificate accompanies the image, unless there is evidence to the contrary, the image 'is to be accepted as having been recorded as described in s 117(7B)'. Without a certificate, the prosecution must prove that the image on which it relies was recorded by the speed measuring and recording equipment at the specified time and location.
I respectfully agree with his Honour's analysis. In my opinion, read in context, his Honour's remarks at [42] do not mean that the provisions of s 117A(2) are to be superimposed over the provisions of s 117 to determine the meaning of those provisions, or to introduce evidentiary requirements that are not contained in s 117. Rather, they are indicative of matters that would otherwise have to be proved under s 117(6), when read in conjunction with subsections (2)(c), (7B) and (8) of s 117. The appellant did not argue for a more prescriptive interpretation. In stating that the prosecution would normally need to prove that the data used to produce the image relied on under s 117(7B) was recorded by, and retrieved from, the relevant equipment, Allanson J did not stipulate what evidence would be required to prove that fact. Foreshadowing my discussion later in these reasons of the primary issue in the appeal, Ireland v Jackson does not stand for any proposition that scientific or technical evidence must be given of the way in which data is transferred from the speed measuring and recording equipment to any other system where the data may be stored, or of the way in which the data is subsequently processed to produce an image for the purposes of s 117(7B). What is necessary for the purposes of s 117(6) and s 117(7B) is evidence from which the court can be satisfied that the data on the image was recorded at the time and location in question.
Evidence in the Magistrates Court hearing
The prosecution called two witnesses, Blake Gifford Dawson, who operated the speed measuring and recording equipment that purportedly recorded the appellant's vehicle travelling at excessive speed, and First Class Constable Gordon Welbon, who interviewed the appellant under the provisions of the RTA about the incident. The appellant did not give or adduce any evidence, but tendered formal admissions in respect of the identity of the vehicle and that he was the driver of the vehicle at the relevant time and place of the alleged offence.[18]
[18] ts 17 January 2022, 2.
At the appeal, the court and the parties had access to: (a) the transcript of the trial hearing in the Magistrates Court, which included the evidence of the two witnesses and the submissions of counsel; (b) the exhibits tendered at the trial hearing, which were provided to this court by the Magistrates Court, pursuant to s 10(7) of the Criminal Appeals Act; and (c) the magistrate's Reasons.
Mr Dawson
Mr Dawson gave the following evidence:
(1)He is a camera operator and works for WA Police.[19] He is authorised under s 117 of the Road Traffic (Administration) Act 2008 (WA) (RTA Act) to operate speed measuring equipment.[20] (I note that exhibit 1B, the relevant certificate under s 117(8), certified that Mr Dawson is competent to 'install, set up, test, and retrieve data from the following speed measuring and recording equipment: Jenoptik Robot GmbH Traffistar S350', and that he is competent to 'produce images from the data from the above speed measuring and recording equipment'.)
[19] ts 17 January 2022, 4.
[20] ts 17 January 2022, 4; Exhibits 1A, 1B.
(2)He was authorised to use the Jenoptik Robot GmbH Traffistar S350 ('the Jenoptik'), and was using it during the incident.[21]
[21] ts 17 January 2022, 5.
(3)The Jenoptik is approved speed measuring and recording equipment.[22] (The Government Gazette in which the Jenoptik was approved as an apparatus for the purposes of s 117(2)(c) was received in evidence as exhibit 2.)
[22] ts 17 January 2022, 5.
(4)On 14 September 2020, Mr Dawson drove near the intersection of Pinaster Parade and Gnangara Road, Ellenbrook, where he gathered relevant information, such as his location, the widths of the lanes, the location of speed signs and the physical location of the camera, and entered the information into the Jenoptik's software.[23] The information he entered is recorded on a deployment log which was generated at the end of the deployment.[24] (The deployment log was received in evidence as exhibit 3.)
[23] ts 17 January 2022, 5 - 6.
[24] ts 17 January 2022, 6.
(5)The Jenoptik was set up in a zone where the speed limit was 70 km/h, marked by two '70' speed signs before and after Mr Dawson's location.[25]
[25] ts 17 January 2022, 6.
(6)After he had entered the information, he set up the Jenoptik in accordance with his training and procedures.[26] He pressed the 'start enforcement' button, following which the Jenoptik undertook an automated self-test. The self-test was successful.[27] Following that process the Jenoptik automatically went into 'enforcement' mode, meaning that it was operating.[28]
[26] ts 17 January 2022, 7.
[27] ts 17 January 2022, 7.
[28] ts 17 January 2022, 7.
(7)Every half hour, the Jenoptik generated a health check - a test for the operator to make sure that the camera is working properly. During that process, the operator reviews the image on the screen to ensure it looks fine and, if it does, the operator presses 'okay', and the Jenoptik continues with its deployment.[29]
[29] ts 17 January 2022, 7.
(8)At around 1.28 pm that day, Mr Dawson shut down the Jenoptik.[30] As part of that process, the Jenoptik undertook the same automated self-test as it did at the beginning of its deployment, and passed that self-test as well.[31] It was at that stage that the Jenoptik generated the deployment log. It also generated an activity list, which is 'similar but different to the deployment log'.[32] (The Operator Activity List for 14 September 2020 at the relevant location was received as exhibit 4.)
[30] ts 17 January 2022, 8.
[31] ts 17 January 2022, 8.
[32] ts 17 January 2022, 8.
(9)Mr Dawson reviewed the information on the automatically generated deployment log and activity list to ensure that it had recorded accurately the information he had entered.[33]
[33] ts 17 January 2022, 8.
(10)The activity list is essentially a log of timestamps and various events that have happened. It records Mr Dawson's Police Department number, the time the camera was set up, the speed zone, the GPS co-ordinates of the camera's location and other information pertaining to the deployment.[34]
[34] ts 17 January 2022, 8.
(11)Following his review of the deployment log and activity list, Mr Dawson pressed 'accept session' and then 'everything gets automatically uploaded'.[35] Mr Dawson said there is no physical downloading of the photographs or other 'stuff', as there used to be.[36] He said: 'Now the camera gets automatically uploaded.'[37]
[35] ts 17 January 2022, 9.
[36] ts 17 January 2022, 9.
[37] ts 17 January 2022, 9.
(12)Once the operator accepts the session, the words 'Integrity okay. Sending files' come up on the screen.[38] That was recorded on the activity list.[39]
[38] ts 17 January 2022, 12.
[39] ts 17 January 2022, 12; Exhibit 4.
(13)All the files that pertain to that deployment 'were sent through'.[40] In cross-examination, when asked what files pertained to the deployment, Mr Dawson said:[41]
[40] ts 17 January 2022, 12.
[41] ts 17 January 2022, 12.
Whatever that tablet has generated. So, I don't have a list of the exact files and file names and file numbers that were sent through. All right. So you don't know what files were sent when you sent the files? --- I don't know exactly which files, no.
(14)On 3 January 2022, Mr Dawson received an email from Sergeant David Lincoln containing a link to the infringement image processing system, 'so where the photos go, so once they've been uploaded'.[42] It was a link to the image that the case is about.[43] He clicked on the link and logged into the system. He said:[44]
And then it came up with … this incident. So then, I can download the photos. I can download the deployment log, the activity sheet, all the pertinent information (indistinct) into … that link. So that's how I access it. That's how I printed it out and then forwarded it on.
…
[O]n the day I received it, then I logged in, checked, made sure it was, you know – made sure it was my deployment, checked through the deployment log to make sure that it was my PD, that everything was – that everything matched up, you know. So, the … image was from that deployment that I did on that day.
… Well, one of the images that the camera took that day was of – of this vehicle, 1CIJ370, travelling at 130 in the 70 zone. And that was the image that was sent through on that link.
(15)The image he accessed on the link was the image that was initially marked MFI 5 and subsequently received as exhibit 5.
(16)He did not know how Sergeant Lincoln was able to produce the link.[45]
(17)Exhibit 5 showed the vehicle, with the registration 1CIJ370, coming towards the camera, together with 'all the information from the deployment, the laser, serial number, location, date, timestamps … the speed that was detected by the camera', and the direction the vehicle was travelling.[46] Mr Dawson was able to confirm this was his deployment, stating: 'The information on the top of the image there is the same as the information on my deployment log and my activity sheet.'[47]
[42] ts 17 January 2022, 9. In cross-examination, Mr Dawson agreed that it was on 10 January 2022 that he received the email from Sergeant Lincoln with the link. The discrepancy was not the subject of any questions and is not relevant to the issues in the appeal.
[43] ts 17 January 2022, 9.
[44] ts 17 January 2022, 9 - 10.
[45] ts 17 January 2022, 9, 13.
[46] ts 17 January 2022, 11.
[47] ts 17 January 2022, 11.
I have already referred to some questions Mr Dawson was asked in cross-examination, directed at questioning whether the information on the image, exhibit 5, was ascertained and recorded by the Jenoptik at the relevant time and place. To determine what weight may be given to the answers, it is necessary to set out the exchange in full:[48]
[48] ts 17 January 2022, 12 - 13.
All right. So you don't know what files were sent when you sent the files? --- I don't know exactly which files, no.
And can I take it, the fact you don't know what files were sent, do you also not know what was in the files that were sent? --- I don't quite understand.
Well, if you don't know what - - -? --- Whatever we were … given - - -
- - - files were sent, I would suggest to you that you can't say what was in the files that were sent? --- I can't quite understand what the question is to be honest, sorry, like - - -
You've told us that you don't know what files were sent, do you agree with that? --- Yes.
All right. And the question is if you don't know what files were sent you're not in the position to say what was in the files that were sent? --- Yes (indistinct).
Where are the files sent to? --- I'm not sure. They're sent up through the infringement image processing system but that's the thing, I'm just an operator; I'm not a (indistinct) so that's outside of my scope.
Well, where are the files stored? --- I don't know.
In what format are they stored? --- I'm not sure.
The following exchange occurred after Mr Dawson said he did not have with him the email that was sent to him or the computer on which he received it:[49]
You did not produce the photograph directly from the data that you sent from the equipment on 14 September 2020, did you? --- I presented the photo from the image – the infringement image processing system.
All right. The question is you did not produce the photograph, MFI#5, directly from the data that you sent from the equipment on 14 September 2020, did you? --- I don't have access to that data directly, no.
The question is you did not produce the photograph directly from the data that you sent from the equipment on 14 September 2020, did you? --- No.
[49] ts 17 January 2022, 14.
It is apparent from the exchanges I have set out that Mr Dawson was confused as to the meaning of the questions asked. With all due respect to counsel, that is not surprising, as the witness could not be expected to know what data was in fact transmitted to the infringement image processing system when he pressed 'accept session' for the purpose of uploading the data, including photographs, from the Jenoptik to that system. However, Mr Dawson's evidence, as set out above, was that the information recorded by the Jenoptik during a deployment, including photographs, is uploaded automatically to the infringement image processing system once the operator 'accepts the session', and that, at the time, the machine confirms the integrity of the process and that it is sending files. Further, his evidence was that he subsequently accessed the image on the infringement image processing system, where the files were expected to be sent by the Jenoptik, and the data on the image correlated with the information in the deployment log.
With respect, the questions concerning whether Mr Dawson had produced the image 'directly' from the data he sent from the equipment on 14 September 2020 beg the further questions, what is meant by 'directly', and what is the relevance of whether an image is produced 'directly' or 'indirectly'? There was no evidence that the integrity of the data could be affected depending on whether the image was produced 'directly' or 'indirectly'. I do not consider that Mr Dawson's answers, referred to at [37] above, detracted from the weight to be given to his earlier evidence, as I have just outlined in the preceding paragraph. The determination of whether the prosecution had proved that the data in the image had been ascertained and recorded by the Jenoptik, an approved apparatus, depended on whether an inference could be drawn to that effect, beyond reasonable doubt.
Having regard to the provisions of s 117, it was not necessary for the prosecution to prove how the data was stored or how its integrity was maintained in the process of an operator accessing the data and producing an image.[50] That did not preclude the appellant from questioning the integrity of the data reproduced in the image, but the resolution of that issue required consideration of the whole of the evidence, rather than a piecemeal focus on the technical electronic processes.
[50] By way of analogy see Bevan v The State of Western Australia [33] where Blaxell J said (relying on Chiou Yaou v Morris (1987) 46 NTR 1, 10) in relation to what is necessary for a court to be satisfied that an instrument was 'handled properly': 'Detailed evidence as to the working of the instrument need not be given. However, it is necessary that there be sufficient evidence for the court to apprehend what it was that the operator had to do in order to ensure an accurate result.'
I note that there was no questioning of Mr Dawson directed at the issue of whether there is an 'approved procedure' for the purposes of s 117A(2)(b), (c), (e) and (f) of the Road Traffic (Administration) Act. Ostensibly, having regard to Mr Dawson's evidence, the procedures he followed were approved, in that he was an authorised person, the data that was recorded by the Jenoptik (an approved apparatus under s 117(2)(c)) was uploaded to the infringement image processing system, he was given access to the system to produce the image for the purposes of s 117(7B) by way of a link and permission to log into the system, and the photographic evidence produced by him from the system was the image relied on by WA Police as the basis for the charge against the appellant.
First Class Constable Welbon
On 15 November 2021, First Class Constable Welbon interviewed the appellant about a 'reckless driving offence'. During the interview, he showed the appellant photographic evidence,[51] which, by inference, was the same as the image tendered as exhibit 5. The appellant accepted that he was the driver of the vehicle.[52]
[51] ts 17 January 2022, 17.
[52] ts 17 January 2022, 17.
After the appellant was cautioned, First Class Constable Welbon asked the appellant, if there had been 'any reason for the speed'.[53] The appellant replied, 'I thought it was 100 to be honest.'[54] The balance of the interview is not relevant to the issue in the appeal.
Exhibits
[53] ts 17 January 2022, 17.
[54] ts 17 January 2022, 17.
I have referred to the exhibits that were tendered. It is necessary to say something more about exhibit 4, the Operator Activity List. The document, which Mr Dawson said was generated at the conclusion of the deployment of the Jenoptik on 14 September 2020 is headed with a table that sets out the date, the identity of the operator, Mr Dawson, with his Police Department (PD) number, the deployment number, the operating mode (shown as 'Tripod'), the location (shown as 'GNANGARA RD, NR PINASTER PDE, ELLENBROOK - 11491'), the co-ordinates of the location, and the test results at the start and finish (both shown as '65 km/h PASS').
The Operator Activity List then goes on to list a series of events under the headings 'Date', 'Time' and 'Event'. The time uses the 24 hour clock. At 09:00:36, the following entry appears:
14/09/2009:09:36 Hoon Event. Speed 130 km/h Lane No 2 Incident File
This was followed by Mr Dawson's PD number, followed by a lengthy reference number with the suffix 'sbf'.
The image produced as exhibit 5 is headed 'Photographic Evidence'. It bears the date of '14/09/2020' and the time is shown as '09:00:18'. The location is shown as 'GNANGARA RD, NR PINASTER PDE, ELLENBROOK - 11491'. The speed limit is shown as '70 KM/H'. The speed (of the vehicle) is shown as '130 KM/H'. There are three images. The vehicle is clearly depicted in the first image, as is the number plate in a close up in the second image. The third image shows the face of the driver. As I have said, the appellant admitted that it was his vehicle and that he was the driver. There was also no dispute about the date or time.
Magistrate's decision
At the conclusion of the hearing, the learned magistrate reserved his decision. He delivered his decision and written reasons on 25 February 2022.
His Honour said (footnotes omitted):[55]
[55] Magistrate's Reasons, [2] - [16].
2.In the circumstances of this case, the prosecution was required to lead, amongst other matter, admissible evidence to prove the authenticity of the photographic image from the speed and recording equipment in which the charge relied.
Hearing
3.Blake Dawson, a speed camera operator, was certified to install, set up, test, and retrieve data from a Jenopti[k] Robot GmbH TraffiStar 350 (Jenopti[k] Robot) apparatus. He was certified to produce images from the data supplied to such speed measuring and recording equipment. [His Honour then referred to the evidence that Mr Dawson was an authorised person and that the Jenoptik was approved apparatus.]
4.Mr Dawson described his activities on the relevant day, which were recorded in his deployment log. He set up the system according to his training and procedures, recording all relevant information in the log. Mr Dawson described the area where the Jenopti[k] Robot equipment was set up and how it conducted a self-check every half hour. At the end of the allotted time, he returned to his base.
5.On the 10th January 2021 he received an email from a Police Officer which provided a link to the infringement processing system. Mr Dawson then logged onto the system and downloaded information including the image of a vehicle travelling at 130 kph in a 70 zone.
6.He accepted, in cross examination, he did not have access to all the files in the system. He agreed that, on the relevant day, all files had been sent to infringement processing system. He did not produce the photo directly from the data sent to computer on the 14th September 2020. Mr Dawson described accessing the image from clicking on the provided link, at which time the image 'popped up'.
7.Constable Gordon Weldon testified about speaking to Mr Sacchero about reckless driving, on the 15 October 2020, and showing him the relevant photo. After he admitted being the driver, and was cautioned, Mr Sacchero said, 'I thought it was a 100, to be honest'.
8.The defendant did not testify.
9.Defence counsel submitted the prosecution had failed to satisfy the court, to the requisite standard, that the image was produced from data retrieved from the equipment. It was further submitted that Mr Dawson did not know and could not say which files were sent to storage. Also, Mr Dawson did not directly obtain the photograph tendered in evidence from the file which he had sent to the processing unit, nor that the photograph was obtained from the files he had sent to the unit.
Findings
10.The operator set up the equipment, which was designed, and gazetted, to perform the task of measuring and recording the speed of identified vehicles. The equipment was operating correctly and was positioned to capture an image of the defendant's vehicle, as well as its speed. The operator did not see the image being created. The equipment sent data to the processing unit and, it is understood, that data permits the creation of an image of a vehicle, including its speed.
11.It is not in dispute that the image reflected the activity, insofar as the vehicle was travelling on that road at that time, driven by the defendant.
12. The defence relies primarily upon the decision of Ireland v Jackson, which confirmed that without a certificate the prosecution must prove the image on which it relies was recorded by the speed measuring and recording apparatus at the specified time and location. Further, it also needs to prove that the image that was relied on in evidence was produced from the data retrieved from the apparatus. In that matter limited evidence was given as to how the image was recorded and retrieved from the equipment and how the images displaying the vehicle, the time and the speed were produced. Also, there was no evidence, or concession, from the defendant as to his driving or the speed at which he was travelling. Further, there was not an extract produced from the government gazette as to the status of the speed measuring and recording apparatus.
13.In this case, the operator confirmed the presence of the gazetted apparatus at the time and place and that it was operating correctly. The defendant admitted he was at the same place and time in the subject vehicle.
14.The only aspect of the image being challenged is the recorded speed; it is not in dispute the vehicle was moving. The machine was an approved apparatus to measure and record, amongst other items, speed. In order to produce a speed reading, calculations are required to be undertaken by the unit from the data entered at the time. The required data was collected at the relevant time; again, the time, place, identity, and circumstances are not in dispute.
15.There is no evidence to suggest the processed data came from any other source, that is other than the gazetted equipment. The image produced reflects the evidence, including the log of the operator, and the admissions of the defendant. The assessed speed is an outcome of the acquired data being processed by the authorised equipment and retrieved, by the approved operator.
16.I do not accept there is a lacunae in the process. I am satisfied the gazetted apparatus arrived at a speed using properly acquired data. In summary, the operator fulfilled the statutory requirements as did the apparatus. There is no obligation for the operator to explain the internal workings of the apparatus.
It is clear that his Honour relied on the deployment log as evidence that supported the finding that the speed recorded on the image received as exhibit 5 was data acquired and recorded by the Jenoptik. In my respectful opinion, his Honour was correct in his view that there is no obligation on the operator of speed measuring and recording equipment to explain the internal workings of the apparatus. As I discussed earlier in dealing with the legislative provisions and the cross-examination of Mr Dawson, there is nothing in the Road Traffic (Administration) Act to suggest that such evidence is necessary to prove that the speed shown in the image retrieved from the infringement image processing system was ascertained and recorded by the speed measuring and recording equipment at the relevant time and location.
Authorities
As I noted above, the relevant evidentiary provisions were considered in Ireland v Jackson. They were also considered by McGrath J in Ryan v Muscara [2021] WASC 453. In that case the respondent conceded the appeal on several grounds, one of them being that there was no evidence to prove that the data on the image relied on in that case was ascertained and recorded by the speed measuring and recording equipment that had been used. The principles that had been outlined by Allanson J in Ireland v Jackson were not in dispute in Ryan v Muscara, and they were applied by McGrath J.
In both cases, the appeal was allowed on the basis that the prosecution had not proved that the image that was relied on in evidence was produced from the data retrieved from the speed measuring and recording equipment. The respondent sought to draw parallels between the present case and those cases. In my opinion, they are distinguishable.
In Ireland v Jackson, the operator of the equipment, Mr Giumelli, gave evidence which was outlined by Allanson J at [15]. It is sufficient to note that, apart from establishing that Mr Giumelli had certification (which was produced) under s 117 of the Road Traffic (Adiministration) Act as an authorised person to use the equipment in that case, referred to as a Poliscan, the evidence was in relation to the date and place of the deployment of the equipment, the fact that he tested the equipment at the start and finish of the shift, and it was working correctly, and that the fact that Mr Giumelli 'started enforcement' and the camera 'captured a vehicle [Mr Ireland's vehicle] doing 68 km/h'.[56] The deficiency in the evidence in respect of the image that was relied on was referred to by Allanson J as follows (footnotes omitted):[57]
[56] Ireland v Jackson [15].
[57] Ireland v Jackson [22] - [24], [46].
22Following a discussion between Mr Ireland and the magistrate about calibration certificates, and the onus of proof, Mr Ireland referred to the photographs that had been produced in evidence and asked the witness who had downloaded them from the camera. Mr Giumelli said:
I got them sent to me, and - yes, I've got the disk, and I've downloaded them and printed them out.
23Mr Giumelli was asked if the photographs were accurate and said, 'the manufacturer certifies that they're from the camera unit'. No other evidence was given regarding how the photographs were recorded or retrieved from the unit, or how the images displaying the vehicle, the time, and speed, were produced.
24Mr Ireland gave no evidence about his driving, or the speed he was travelling.
…
46Mr Giumelli gave evidence of setting up and testing the equipment, both before and after his shift. But where the prosecution does not rely on a certificate under s 117A, it also needs to prove that the image that was relied on in evidence was produced from the data retrieved from the equipment. Mr Ireland asked Mr Giumelli about the production of the image and the witness replied, 'I got them sent to me. … It's the manufacturer certifies that they're from the camera unit'. There was no other evidence.
Allanson J considered that to be sufficient ground to uphold the appeal on the issue raised concerning the failure of the prosecution to prove that the image that was relied on in evidence was produced from the data retrieved from the speed measuring and recording equipment.[58]
[58] Ireland v Jackson [47].
On the assumption that the evidence referred to in Ireland v Jackson was all the relevant evidence given in respect of the use of the Poliscan and the production of the image, it can be seen that the evidence fell well short of the evidence given by Mr Dawson in this case. Moreover, there was no reference to an activity list having been received in evidence, as occurred in this case, which could link the information on the image with the information recorded by the equipment at the time of the deployment. The conclusion in Ireland v Jackson does not assist the appellant, given the significant disparity between the evidence adduced in that case and the evidence adduced in this case.
In Ryan v Muscara, the use of the image of the vehicle tendered under s 117(7A) was challenged on a number of bases, in particular as to whether the accuracy of the speed measuring and recording equipment had been established, and whether the prosecution had proved that the data on the image was data retrieved from that equipment. The evidence given by the equipment operator, Mr Drake, who was established to be an authorised person for the purposes of operating the equipment, which, as in this case, was a Jenoptik machine, was summarised by McGrath J at [12] - [15]. In that case, a deployment log was received into evidence,[59] but there is no reference in the decision to an 'activity list' having been received into evidence, so it may be assumed there was no evidence of that kind at the trial hearing. The summary of Mr Drake's evidence suggests at times that he gave direct evidence of the facts to be established. For instance, McGrath J said (footnotes omitted):[60]
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 92 km/hour. Mr Drake stated that the crosshair correctly positioned the vehicle and thereby identified that the vehicle was the vehicle that was speeding.
[59] Ryan v Muscara [13].
[60] Ryan v Muscara [14].
McGrath J also noted (footnotes omitted):[61]
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.
[61] Ryan v Muscara [15].
Although that was evidence of a direct observation of the vehicle at the time and location that it moved past the Jenoptik, it is not clear whether Mr Drake's evidence was that he saw the speed measured for the vehicle, or, if he did see it, that he could recall the speed that was measured and displayed. Nor is it clear how the iPad related to the Jenoptik.
In any event, it is apparent from the decision in Ryan v Muscara that the prosecution relied on an image produced under s 117(7B) as prima facie evidence of the speed at which the vehicle was travelling. As McGrath J summarised the matter (footnotes omitted):[62]
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. Mr Drake was asked whether he produced the photograph or whether someone else did, to which he answered 'this document is produced from upstairs'.
[62] Ryan v Muscara [14].
In the absence of any other evidence being referred to in the judgment, that would appear to be all that was said by Mr Drake about the process by which the image was produced for the purpose of being used in evidence. It falls well short of the detailed evidence given by Mr Dawson in the present case, in relation to the process whereby he accessed the photograph and the steps he took to satisfy himself that the data shown on the image corresponded with the deployment log he had generated when packing down the Jenoptik.
It is also noteworthy that in Ryan v Muscara, the appellant, Ms Ryan, gave evidence. Significantly, as McGrath J summarised it:[63]
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.
[63] Ryan v Muscara [21].
It seems the case proceeded on the basis that the appellant's evidence in that regard brought into question whether the speed depicted on the image for the appellant's vehicle was in fact the speed at which she was travelling at the time when she claimed to have driven past the camera. In any event, as his Honour noted:[64]
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.
[64] Ryan v Muscara [46].
His Honour then referred to Ireland v Jackson and said (footnotes omitted):[65]
In the absence of the certificate [under s 117(7B)], 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.
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.
[65] Ryan v Muscara [47] - [48].
His Honour concluded (footnote omitted):[66]
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.' 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.
[66] Ryan v Muscara [49].
As will be clear from my analysis of the legislative provisions above, the only reference to retrieval of anything is in s 117(8) in the listing of competencies to which a certificate under that subsection may speak. In that context, the subsection refers to the retrieval of 'data' from speed measuring and recording equipment, which is distinguished from the competency to 'produce images from the data'. Of course, data retrieved from the speed measuring and recording equipment may be an image recorded by the camera on the equipment. McGrath J's conclusion in Ryan v Muscara suggests that his Honour accepted that the deficiency in the evidence was one step back from the step that is in issue in the present appeal. In that case, the deficiency extended to evidence about the way in which the data was retrieved from the Jenoptik, for the purpose of being used later to produce an image for the purposes of s 117(7B). That is distinguishable from the evidence in this case, in which Mr Dawson explained the manner in which the integrity of the data in the Jenoptik was confirmed during the pack down, the fact that he activated the sending of the data for uploading onto the infringement image processing system, and the fact that the Jenoptik confirmed that the data had been sent. A further distinction is that, in this case, there was the evidence, namely the activity list, which identified an event recorded by the Jenoptik, on the day and at the place of the relevant deployment, that correlated with the data on the image tendered as exhibit 5. Mr Dawson also explained the process by which he accessed the image and produced it for the hearing, as outlined at [60] above. Finally, unlike the appellant in Ryan v Muscara, the appellant in this case did not give evidence that challenged the accuracy of any of the data appearing on the image.
Accordingly, Ryan v Muscara is distinguishable.
Submissions
Respondent's submissions prior to the hearing
As I noted under the heading 'Procedural history' above, the respondent's submissions initially conceded the appeal. That concession essentially relied on the decisions in Ireland v Jackson and Ryan v Muscara. The concession was in similar terms to the concession in Ryan v Muscara. It is convenient to deal with the respondent's submissions prior to the hearing, as the appellant substantially adopted those submissions at the hearing.
More specifically, the respondent submitted (footnote omitted):[67]
[67] Respondent's outline of submissions dated 31 May 2022.
41.Dawson admitted in cross examination that he did not produce the image directly from the data that he sent from the apparatus on the relevant day.
42.Further, there was no evidence that:
(a)Sergeant David Lincoln was the person who originally retrieved the data from the speed measuring and recording equipment or whether someone else had and that other person had shared the retrieved data with Sergeant David Lincoln; and
(b)Sergeant David Lincoln was the person who had produced the image or whether someone else had and that other person had shared the image with Sergeant David Lincoln.
43.Accordingly, there was no evidence before the Magistrate:
(a)as to how the relevant data was retrieved from the speed measuring and recording equipment; and
(b)as to how the image was produced using the data relating to the vehicle and its speed, and the time and place at which its speed was ascertained and the data recorded.
With respect, the submissions conflated the matters that needed to be established under s 117 for exhibit 5 to have evidentiary value, and introduced matters for which there was no need for evidence under s 117. The submissions appeared to overlook that, according to Mr Dawson's evidence, the means by which data was retrieved from the Jenoptik was by sending the data from that machine to the infringement image processing system, where it would be uploaded for access at a later time. The evidence established that he did that, not Sergeant Lincoln or anyone else. In my respectful opinion, the submissions were wrong in asserting that there was no evidence as to how the relevant data was retrieved. In my view the submissions also took an unduly prescriptive approach to the interaction between s 117A and s 117.[68] The submissions failed to consider whether there was evidence from which the inference could be drawn that the data on the image in exhibit 5 was ascertained and recorded by the Jenoptik at the time and location of the relevant deployment in this case.
[68] See my analysis at [32] above.
For those reasons, I was not prepared at that stage to accept the respondent's concession or deal with the matter without a hearing. The respondent and appellant were informed, and in due course the matter was listed for a hearing. Submissions were sought from the parties as to why the inference could not be drawn from the evidence adduced at the trial hearing that:[69]
(a)the image tendered at the hearing was produced from data recorded on the measuring and recording equipment used by Mr Dawson, as described by him in evidence; and
(b)the speed of the appellant's vehicle, the date and time and location as shown on the image were as ascertained from the speed measuring and recording equipment at the time and location alleged.
[69] These questions were reproduced at the start of the Respondent's supplementary submissions, dated 8 November 2022.
In supplementary submissions, the respondent dealt with the question as comprising two issues, set out in paragraphs (a) and (b). The respondent submitted in respect of the first issue that:[70]
The appellant's admissions and the evidence of the prosecution witnesses sufficiently prove by way of inference that the image (putting aside the written details attributed to the image) tendered at the hearing was produced from the measuring and recording equipment used by Mr Dawson, as described by him in evidence.
[70] Respondent's supplementary submissions [11].
However, the respondent contended at that stage that the appellant's admissions and the evidence of the prosecution witnesses '[did] not sufficiently prove by way of inference that the speed of the appellant's vehicle was approximately 130 km/h, the speed detailed on the image'.[71]
[71] Respondent's supplementary submissions [13].
Having outlined the reasons why the appellant's admissions were ambiguous and could not be relied upon to support a finding that the speed stated on the image was correct, or from data ascertained and recorded by the Jenoptik, the respondent made the following submissions:
22.Secondly, there is no other evidence that proves the 130 km/h speed element of the offence.
23.Although there is evidence of the operation of a measuring and recording equipment in this case, there is insufficient evidence as to how the 130 km/h speed detail included on the image was attributed to the image in question.
24.There was no evidence as to what files were stored by the equipment, what format the files were stored, where the files were stored and how the data is processed by the equipment.
25.Further, there was no evidence as to how the image and the details ascribed to the image were created.
26.That is, there was no evidence as to whether the 130 km/h speed detail was attributed to the image in question automatically by the measuring and recording equipment's software itself or physically by a person viewing the file(s) created by the equipment after its deployment on the relevant day and allocating that data to the relevant image.
27.More specifically, there was no evidence given by Lincoln as to whether:
(a)he created the relevant image or someone else created the image and passed it onto him or the software automatically created the image;
(b)he physically examined a file that contained recorded vehicle speeds and attributed the relevant speed to the image of the appellant's vehicle or someone else examined a file that contained recorded vehicle speeds and attributed the relevant speed to the image of the appellant's vehicle or the equipment's software automatically attributed the relevant speed to the image of the appellant's vehicle without human intervention.
28.Accordingly, there is insufficient evidence to prove by way of inference that the speed of the appellant's vehicle was approximately 130 km/h at the relevant time.
With respect, the approach in the submissions was fallacious in introducing the concepts of (a) 'attributing' data, such as the speed of the vehicle, to the image in question, and (b) 'creating' a relevant image to which data is attributed. Those concepts are not expressly referred to in s 117 of the Road Traffic (Administration) Act, and, in my opinion, are not implicit from the text, context or purpose of s 117, even when read with s 117A. Indeed, they appear to make assumptions about the process of ascertaining and recording relevant data, and then producing an image for the purposes of s 117(7B), that are inconsistent with the provisions of s 117. The approval of the apparatus under s 117(2) is 'for the purposes of … ascertaining the speed at which a vehicle is moving, recording an image of the vehicle and recording' the data specified in clauses (i) to (iv), the first of which is 'the speed at which the vehicle was moving' (emphasis added). It is tolerably clear that the 'image' then referred to in s 117(7B) is an image recorded by the approved apparatus.[72] It is not an image 'created' at a subsequent time. Similarly, s 117(7B) refers to the matters referred to in subsection (2)(c) being 'recorded' on the image, not attributed. Section 117 does not mandate that the prosecution must adduce evidence of the kind set out in paragraphs 24, 26 or 27 of the respondent's supplementary submissions. Evidence of that kind may facilitate proof that the matters recorded on the image were ascertained and recorded by the relevant apparatus, but other evidence may facilitate proof of that fact.
[72] Section 117(7B) refers to matters ascertained and recorded by the 'speed measuring and recording equipment', which is defined in s 117(1) to mean 'apparatus of a type approved by the Minister under subsection (2)(c)'.
As I noted earlier, the respondent's position changed during the course of the appeal hearing, and the final position put on behalf of the respondent was that there was evidence that the speed recorded on exhibit 5 was ascertained and recorded by the Jenoptik at the relevant time and place.
Appellant's submissions
As I have already noted, the appellant's submissions relied substantially on the submissions that had been made in writing by the respondent.[73] Counsel for the appellant acknowledged that the circumstances of Ireland v Jackson and Ryan v Muscara were different from the circumstances of this case, but still submitted that the deficiency in the evidence identified in those cases was present in this case. I have already given reasons as to why those cases are distinguishable and do not stand for the propositions advanced in this appeal about the type of evidence that would be necessary to establish that the speed recorded on an image tendered under s 117(7B) of the Road Traffic (Administration) Act was ascertained and recorded by the relevant apparatus at the time and location referred to in s 117(6).
[73] Outline of Submissions on Behalf of the Appellant, dated November 2022.
The appellant's written outline of submissions concluded:
28.There is no evidence as to whether the 130 km/h speed detail was attributed to the image in question automatically by the measuring and recording equipment software itself or physically by a person viewing the file(s) created by the equipment after its deployment on the relevant day and allocating that data to the relevant image.
29.Sergeant Lincoln was not called as a witness.
30.There is no evidence as to whether he created the relevant image or someone else created the image and passed it on to him or that the software automatically created the image. There is no evidence from Sergeant Lincoln that he physically examined a file that contained recorded vehicle speeds and attributed the relevant speed to the image of the Appellant's vehicle or it was someone else who examined the file that contained recorded vehicle speeds and attributed the relevant speed to the image of the Appellant's vehicle or the equipment software automatically attributed the relevant speed to the image of the Appellant's vehicle without human intervention.
31.There is insufficient evidence to prove by way of inference that the speed of the Appellant's vehicle was approximately 130 km/h at the relevant time.
Counsel for the appellant submitted that Mr Dawson sent off files, but did not know what files were sent off, where the files went, what was contained in the files or how they were stored.[74] I do not accept the submission that Mr Dawson's evidence was that he did not know where the data was sent, as his evidence was that the data is sent (or uploaded) from the Jenoptik to the image infringement notice system, which was the system he subsequently accessed by a link to obtain the relevant data and produce the image in exhibit 5. Further, as I indicated earlier, on a fair reading of Mr Dawson's evidence, it was to the effect that the process he undertook involved sending the data recorded by the Jenoptik, including photographs, to the image infringement notice system, and that the equipment indicated that the integrity of the files was maintained and that the files were sent. It does not matter that Mr Dawson did not know (and could not know) what files were sent. The evidence of the process and the regularity of the functioning of the equipment is circumstantial evidence that, in combination with other evidence, can support the inference that the data subsequently accessed by Mr Dawson on the image infringement notice system was data ascertained and recorded by the Jenoptik. In my respectful opinion, there was an incongruity between the appellant's argument concerning the speed recorded on the image in exhibit 5, and his acceptance that the other data recorded on the image, in respect of time and place, for instance, was correct.
[74] Appeal ts 5.
The activity list was further circumstantial evidence relevant to establishing that the data on the image in exhibit 5 was ascertained and recorded by the Jenoptik. Counsel for the appellant agreed that the activity list and the deployment log were admissible for the truth of their contents as business records under s 79C of the Evidence Act 1906 (WA).[75] However, he submitted that the activity list did not go far enough to support the inference that the speed recorded on the image was ascertained and recorded by the Jenoptik at the relevant time and place.[76] He submitted that, without further explanation, the reference to 'Hoon event. 130 km/h' was 'insufficient to prove that that was Mr Sacchero who was travelling at that speed at that time and place'.[77] With respect, the submission involves a piecemeal approach to the evidence, which is not appropriate.[78]
[75] Appeal ts 17.
[76] Appeal ts 14.
[77] Appeal ts 21.
[78] The Queen v Hillier [2007] HCA 13; 228 CLR 618.
The appellant's argument was encapsulated in the submission that one cannot conclude that the speed recorded on the image was ascertained and recorded by the apparatus at the relevant time 'because you don't know what happened after the information was sent off and before it was accessed by Mr Dawson, if it was accessed'.[79] Further, 'you can't speculate as to how that speed got embedded on the image without evidence to explain the process by which that speed got embedded on the image'.[80] When it was suggested to counsel that the evidence was that the equipment was set up to do just that (that is, to embed, as in record, the speed on the image), counsel submitted that we do not know that, and that is the difficulty.[81]
[79] Appeal ts 18.
[80] Appeal ts 18.
[81] Appeal ts 18.
With respect, for the reasons that follow, which draw on reasons I have outlined above in dealing with the legislative provisions, Mr Dawson's evidence and the respondent's pre-hearing submissions, I do not accept that reliance on the circumstantial evidence to which I have referred involves speculation. It involves a rational assessment of the evidence, having regard to the scheme of the legislation.
Assessment of the merits of the appeal
It was open to the learned magistrate to rely on the combination of the evidence of Mr Dawson, exhibit 4 (the Operator Activity List) and exhibit 5 (the photographic evidence) as evidence under s 117(6) of the Road Traffic (Administration) Act about:
(a) the use of the Jenoptik speed measuring and recording equipment at the relevant location in Ellenbrook on 14 September 2020;
(b)the identity of the appellant's vehicle as recorded by that equipment at about 9.00 am on that date; and
(c)the speed at which the appellant's vehicle was moving as ascertained and recorded by the Jenoptik at that time.
The evidence established that Mr Dawson was an authorised person for the purposes of s 117, as certified under s 117(8) (exhibit 1). The learned magistrate was entitled also to rely on Mr Dawson's evidence of his knowledge and experience. Those matters were not in dispute in any event.
The evidence also established that the Jenoptik 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 learned magistrate to find that the Jenoptik had recorded the speed of the appellant's vehicle at the relevant time and place.
There was no dispute about the accuracy of the Jenoptik in ascertaining and recording the speed of a vehicle that was approaching it. Mr Dawson'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 Jenoptik was sent wirelessly to the infringement image processing system by the procedure he described, and that the Jenoptik confirmed it was sending the data and that the integrity of the data was maintained.
The learned magistrate was entitled to rely on the appellant's formal admissions as proof beyond reasonable doubt of the facts admitted, being that:
(1)the vehicle depicted in exhibit 5 was his vehicle;
(2)the vehicle was driven at the location recorded on exhibit 5 on the date and at the time recorded; and
(3)he was the driver of the vehicle.
The fact that data from the relevant time and location, depicting the appellant's vehicle, was on the infringement image notice system was proof that the data from the Jenoptik 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 Jenoptik, 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 Jenoptik at the time and location recorded on the image. The Operator Activity List (exhibit 4), the accuracy of which was not challenged at the trial hearing, established that an event occurred and was recorded by the Jenoptik 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 for the following reasons:
(1)The evidence established that the Jenoptik was working properly and that there was no issue with the file integrity.
(2)Therefore, there is a reasonable inference that the Jenoptik would have detected and recorded any vehicle travelling in excess of the speed setting set by Mr Dawson, which the deployment log (exhibit 3) and the Operator Activity List (referring to 'Trigger') showed to be 78 km/h.
(3)The fact that the appellant's vehicle was captured on camera and recorded by the Jenoptik means that it triggered the apparatus by travelling at a speed in excess of the speed setting of 78 km/h.
(4)Although the appellant's admission to First Class Constable Welbon 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.
(5)The Operator Activity List did not record any other speeding event within 18 seconds of the 'hoon event' at 09:00:36.
(6)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.
(7)Therefore, there is a reasonable inference that the event recorded at 9:00:36 on the Operator Activity List was the same event for which the time was recorded as 09:00:18 on the image in exhibit 5.
(8)Although there was no explanation for the discrepancy in the timestamp, in my opinion it was not such as to give rise to any reasonable hypothesis that there was a separate speeding incident within a short time of the appellant's vehicle triggering the Jenoptik and being recorded, and that the speed of 130 km/h was wrongly recorded against the appellant's vehicle.
In his reasons, the learned magistrate said that the image produced reflected the evidence, 'including the log of the operator, and the admissions of the defendant'.[82] It is tolerably clear that, by 'log', his Honour was referring to the Operator Activity List, rather than the 'deployment log', because it was the former that contained an entry of a speed being recorded that was reflected in the image in exhibit 5.
[82] The magistrate's Reasons [15].
In my view, having regard to the whole of the evidence to which I have referred, there was sufficient evidence to establish that the speed recorded on the image on exhibit 5 was ascertained and recorded by the Jenoptik at the time and location recorded on the image. That was all that was required to be established in order for the image to be used as evidence of the facts recorded on the image. With respect, the appellant's submissions (initially also advanced by the respondent) that there was a need for the prosecution to produce technical evidence about the storage and retrieval of data and the 'creation' of the image in the infringement image processing system were misconceived.
Conclusion
It follows from the reasons I have given that the learned magistrate did not err 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 learned magistrate was entitled to rely on the information in exhibit 5 as prima facie evidence that the appellant was driving at 130 km/h at the time and location recorded on the image. In the absence of any evidence to the contrary, it was open to his Honour to find beyond reasonable doubt that the appellant was driving his vehicle at that speed at the time and place particularised in the prosecution notice.
The question of whether the respondent should have leave in respect of the ground of appeal, notwithstanding the conclusions I have reached, is complicated by the approach initially taken and the written submissions filed by the respondent, which would suggest the ground ultimately relied on by the appellant had a reasonable prospect of success. I am inclined to the view that, although Ireland v Jackson and Ryan v Muscara are distinguishable, there was an issue of statutory interpretation that remained to be considered in respect of what is required to establish that matters recorded on an image relied on under s 117(7B) of the Road Traffic (Administration) Act were ascertained and recorded by speed measuring and recording equipment. In the circumstances, I consider that leave should be granted. However, for the reasons I have given, the appeal must be dismissed.
Accordingly, I would grant leave to appeal, but I would dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AJ
Associate to the Honourable Justice Fiannaca
25 AUGUST 2023
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