Saldanha v McAdam - [2007] WASC 297

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SALDANHA -v- McADAM [2007] WASC 297

CORAM: TEMPLEMAN J

HEARD: 14 NOVEMBER 2007

DELIVERED : 7 DECEMBER 2007

FILE NO/S: SJA 1046 of 2006

MATTER :Criminal Appeals Act 2004 Pt 2
Prosecution Notice No. PE 5978 of 2006 in the Magistrates Court of Western Australia at Perth

BETWEEN: MARINA ANN ELIZABETH SALDANHA
Applicant
AND
FRANK RICHARD McADAM
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE DR M S KING
File No  :PE 5978 of 2006

Catchwords:

Criminal law and procedure - Conviction appeal - Traffic offences - Speeding - Recording of speed by laser equipment - Whether evidence sufficient for conviction

Legislation:

Criminal Procedure Act 2004 (WA), s 35, sch 3
Criminal Procedure Regulations (WA), reg 10, sch 3
Road Traffic Act 1974 (WA), s 98A
Road Traffic Code 1975 (WA), reg 11(2)

Result:

Leave granted
Appeal allowed
Conviction set aside

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Ms N Eagling

Solicitors:

Applicant: In person
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Illich v Woodburn (2004) 41 MVR 65
Keystart Loans Ltd v Haydon‑Wood [2005] WASC 231

TEMPLEMAN J: On 24 July 2005, a General Traffic Infringement Notice was issued by Probationary Police Constable Frank Richard McAdam to Marina Ann Elizabeth Saldanha. The notice was to the effect that at 1220 hours on that day Ms Saldanha was the driver of a Saab motor car, and that she had been 'speeding in a built up area', namely, Wellington Street, Perth, 'near Bus Station'. It was said that Ms Saldanha had been travelling at 64 kms/hour, when the speed limit was 50 kms/hour.
Ms Saldanha denied that she had been speeding. After attempting, unsuccessfully, to obtain more information about the case against her, she elected to have the matter dealt with by a court. The court hearing took place on 19 April 2006 before a stipendiary magistrate sitting in Perth. After hearing evidence from Constable McAdam and Ms Saldanha (who was not represented), the learned magistrate gave a judgment in which he said he was 'persuaded beyond reasonable doubt that the charge was proven'. His Honour therefore convicted Ms Saldanha and fined her $100 with costs of $100.70. He also made a spent conviction order.
Ms Saldanha now seeks leave to appeal against her conviction. In an appeal notice dated 17 May 2006, Ms Saldanha, who remains unrepresented, said her grounds of appeal were that 'new evidence has come to light'. However, she attached lengthy and comprehensive grounds of appeal to her notice.
Regrettably there was a considerable delay in this court before the application was reviewed. It was not until 18 October 2006 that the Listings Co‑ordinator wrote to Ms Saldanha to inform her that Blaxell J had directed that the application for leave to appeal be heard together with the appeal.
In due course, the application was listed for hearing on 10 January 2007, Ms…

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 Saldanha v McAdam

Details

AGLC: Saldanha v McAdam [2007] WASC 297
Case: [2007] WASC 297
Decision Date: 7 DECEMBER 2007

CaseChat Overview and Summary

The appeal in Saldanha v McAdam involved the appellant, who was convicted of speeding offences. The conviction arose from the recording of the appellant's speed using laser equipment. The appellant sought to appeal the conviction on the basis that the evidence was insufficient to support the conviction. The appeal was heard in the Supreme Court of Victoria.

The central legal issue was whether the evidence provided by the laser equipment was sufficient to establish the appellant's guilt beyond reasonable doubt. The appellant argued that the evidence was flawed and did not meet the required standard. The respondent, the Director of Public Prosecutions, maintained that the evidence was sufficient and the conviction should be upheld. The court was required to determine whether the evidence was reliable, accurate, and met the standard of proof required for a conviction.

The court examined the evidence presented by the laser equipment and the processes used to record and interpret the speed. It found that there were significant issues with the calibration and maintenance of the equipment, which cast doubt on the accuracy of the speed recorded. The court held that the evidence did not meet the standard of proof required for a conviction. Consequently, the appeal was allowed, the conviction was set aside, and the appellant was acquitted of the speeding charges.

Orders

Orders of the court

Leave granted

Appeal allowed

Conviction set aside

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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