Saldanha v McAdam
[2007] WASC 297
•7 DECEMBER 2007
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 Saldanha having notified the court that she would be available in that month.
On 10 January 2007, the application came on before Simmonds J, but was adjourned sine die, with no order as to costs.
It is not clear why that order was made. However, in a letter dated 3 March 2007 addressed to Blaxell and Simmonds JJ, Ms Saldanha expressed her disappointment at learning at the hearing that information given to her in a letter dated 26 July 2006 from the court was incorrect.
I have read the letter, which was written by the Listings Officer. It sets out answers to questions said to have been asked by Ms Saldanha in a letter dated 30 May 2006. That letter is not on the court file. However, I am unable to identify any error in the court's letter dated 26 July, which provides information about the costs of an appeal and the procedures to be followed.
In her letter of 3 March 2007, Ms Saldanha requested that the application for leave to appeal be heard separately, on the basis of the transcript of the hearing before the magistrate and the evidence then presented.
The letter contained a table in which Ms Saldanha claimed to have identified inconsistencies in Constable McAdam's evidence, and discrepancies between his evidence and what might be described as objective evidence. This was by way of expansion to ground 5 of the original grounds of appeal, in which Ms Saldanha contended that the magistrate had reached his decision 'without proper evidence to support it'. Ms Saldanha then set out her grounds of appeal in a way which repeated the substance of the original grounds of appeal, but in an expanded form.
The application came before me on 14 November 2007. Ms Saldanha appeared in person and asked me to deal with her application on the basis of the written material she had submitted.
It will be convenient to deal first with what might be described as the inadequate evidence ground.
The inadequate evidence ground
This ground is lengthy and argumentative. However, in essence, Ms Saldanha contends that she had not been speeding, that Constable McAdam must have been mistaken and that the evidence was such that the magistrate should not have found the charge proved beyond reasonable doubt.
The ground raises issues about the accuracy of the laser device and Constable McAdam's proficiency in its use. These issues must be decided adversely to Ms Saldanha. That is because, by s 98A(3) of the Road Traffic Act 1974 (WA), Constable McAdam's evidence was prima facie of the speed of the vehicle he tracked on the laser device. Beyond an assertion by Ms Saldanha that she did not speed and had not been speeding on this occasion, there was no evidence about her speed. However, for reasons which follow, I consider it very unlikely that the offending vehicle was being driven by Ms Saldanha.
I have reached this conclusion by reviewing the evidence given at trial by both Constable McAdam and Ms Saldanha. This is not an easy task, because, quite understandably, Ms Saldanha tended to ask multiple questions in cross‑examination. Equally understandably, her evidence in chief tended to include matters of fact and submissions.
At the start of Constable McAdam's evidence, he was asked what he recalled of Sunday 24 July 2004 (ts 6). That was not, of course, the appropriate date: he should have been asked about Sunday 24 July 2005. However, without pointing out the error, Constable McAdam said that 'we' were conducting a laser action/motor driver's licence check 'on Wellington Street near Milligan Street'. He said that while doing so, he had observed 'a dark blue vehicle in the distance heading in a south‑easterly direction. That's basically towards us'.
Constable McAdam said the vehicle 'seemed to be exceeding the posted speed limit, 50 kms/hour'.
It emerged later in the trial that Constable McAdam had been accompanied by Senior Constables Locke and Princepi, neither of whom was called to give evidence.
Constable McAdam then gave evidence that he had used a hand‑held laser device and detected the speed of 'that vehicle' to be 66 kms/hour, 'alleged 64 kms/hour'. (It is not clear why the speed alleged against Ms Saldanha was lower than that said to have been recorded.)
Constable McAdam then said the vehicle went through a green traffic control light, after which he stepped into the road and hand‑signalled the driver to pull over.
Constable McAdam said he explained to the driver that she had been pulled over for speeding and she said 'I didn't know it was that speed'.
According to Constable McAdam, the driver was Ms Saldanha. He said she then produced her driver's licence and he wrote out the infringement notice. Ms Saldanha asked where she had been speeding, to which Constable McAdam replied 'I got it at 260.2 metres', that being the distance indicated on the laser device, which he showed her.
Constable McAdam then gave evidence about the laser device. He produced the certificate he had received following a day course in May 2005. This showed that he was qualified to use laser speed and distance measuring equipment.
Constable McAdam explained the procedure for using the laser device he was operating on the day in question. This included evidence about testing procedures. However, the testing was carried out only in relation to the measurement of distance (by focusing on an object at a known distance), not speed.
Constable McAdam produced the running sheet on which he had recorded the testing at 0700 and 1245 hours. He had recorded also that Ms Saldanha was stopped at 1220 hours.
As to identifying a vehicle, Constable McAdam said 'you aim it near the number‑plate so there's no mistaking of other vehicles' (ts 8).
Constable McAdam was then asked about the accuracy 'of these devices'. His answer was partially indistinct, but he said 'it's very hard to get it wrong', but he did not have 'the exact figures or the statistics' (ts 9).
Asked whether there had been any obstructions, Constable McAdam said:
No. It's a clear line of sight, Wellington Street, so it's a straight road … there was no other vehicles. She was in the far left‑hand lane. That's why it was clear ‑ ‑ a clear shot (ts 9).
Finally, Constable McAdam was asked if Ms Saldanha had said anything about her speed. He said:
‑ ‑ ‑ She stated, 'I didn't know it was that speed' and then I think she's got out of the vehicle at one point and she's asked me how far ‑ ‑ because I told her ‑ ‑ I showed her the display, 260.2 metres, and the speed. She's asked me how far 260 metres was. I've tried to demonstrate with my hands how far a metre was but it's practically impossible to do this? ‑ ‑ or to point out 260 metres away - where exactly ‑ ‑ or pinpoint it and detected it. So I tried my best to explain the distance to her (ts 9).
Before referring to the cross‑examination of Constable McAdam, it will be convenient to describe the layout of Wellington Street and the streets leading into it, at the location in question. The following description is taken from three sources:
1.The relevant map in the Perth Street Directory, a copy of which was included in Ms Saldanha's submissions, without objection from counsel for the respondent on the hearing of the appeal.
2.A set of seven photographs taken by Ms Saldanha on the Sunday following 24 July 2005. These photographs were shown to the magistrate on Ms Saldanha's computer. Hard copies were not produced then, but have now been produced without objection.
In order to ensure that I understood this evidence, and with the consent of Ms Saldanha and counsel for the respondent, I have walked along the relevant part of Wellington Street, so as to identify the positions from which the photographs were taken.
3.A letter dated 2 January 2007 from the Customer Information Officer of Main Roads WA to Ms Saldanha, setting out the distances between Milligan, King and Queen Streets. This information was not before the magistrate, but has been produced by Ms Saldanha without objection.
The relevant part of Wellington Street is a dual carriageway. A vehicle travelling in an easterly direction along Wellington Street (as Ms Saldanha was) will first approach the intersection with Milligan Street, which forms a T‑junction with Wellington Street.
At the approach to the intersection, there are three vehicle lanes. However, the lane adjacent to the median strip has been created by removing a short section of that strip and is intended for use by vehicles turning right into Milligan Street. Such vehicles will not then obstruct the flow of traffic in the other two lanes. Only those lanes continue past the intersection. When the intersection is viewed from the north side of Wellington Street (where Constable McAdam was standing) the vehicle lane adjacent to the median strip is the far left‑hand lane.
A vehicle which does not turn right into Milligan Street will continue into the two‑lane section, approaching the intersection between Wellington and King Streets. The distance between the Milligan and King Street intersections is 317 metres. The Entertainment Centre lies to the north of this stretch of Wellington Street.
King Street is a one‑way street which leads into Wellington Street, and is therefore inaccessible from this street.
Opposite the junction between Wellington and King Streets, there is a bus access road leading to and from a bus station. There are traffic control lights at this point.
A vehicle passing the intersection between Wellington Street, the bus station access and King Street, will approach Queen Street, which is 101 metres further on from King Street. There are no traffic control lights at the T‑junction between Wellington and Queen Streets. A vehicle turning right into Queen Street will wait in the dedicated lane, adjacent to the median strip, until there is a break in the west‑bound traffic. Queen Street is a one‑way street, in a southerly direction.
The bus station is situated to the north of Wellington Street, in that section between King and Queen Streets. A vehicle continuing eastwards along Wellington Street will approach the intersection with William Street, which crosses Wellington Street.
Against that background, I turn to the cross‑examination of Constable McAdam.
He was asked first, where he had been standing when he used the laser device. He said
at the intersection of Milligan Street and Wellington Street. There's a bus station directly just behind us and the hospital is just down the road behind (ts 9).
He then confirmed that he had been standing between William Street and the entrance to the bus station.
Pausing there, the first answer is clearly incorrect. As I have noted above, the bus station is not at the Milligan Street intersection with Wellington Street. The entrance to the bus station is some 317 metres further east, opposite King Street. Thus, the second answer would have placed Constable McAdam in front of the bus station.
However, this evidence is inconsistent with a contemporaneous note made by Constable McAdam on his copy of the infringement notice. He wrote:
- 230.75 m was my distance from the traffic control lights
- lights where [sic, were] green
Bearing in mind that the laser device was tested at 12.45 pm, I assume it was measuring distance accurately at 12.20 pm. On that basis, Constable McAdam must then have been standing some 230.75 metres to the east of the intersection between Wellington and Milligan Streets. However, he would have had the Entertainment Centre behind him, not the bus station.
Constable McAdam was asked where he had been standing when he stopped Ms Saldanha. Constable McAdam repeated that it was at the intersection of Milligan and Wellington Streets 'bus station behind me, Royal Perth Hospital directly to my left …' (ts 11).
Again, this answer cannot have been correct, for the reasons referred to above.
Ms Saldanha put to Constable McAdam that it was not he who had stopped her, but another officer, who was darker skinned or who had a darker complexion. It was put also that the officer who had stopped Ms Saldanha had then stopped four other cars, and that Constable McAdam had then walked up and told Ms Saldanha she had been speeding.
Constable McAdam said that neither of his colleagues was dark skinned. He did not answer the complexion question. He maintained that it was he who had stopped Ms Saldanha (ts 10).
Ms Saldanha put to Constable McAdam that she had been stopped just before the turning into Queen Street (ts 11). However, he maintained that:
She was stopped at the intersection of Milligan and Wellington Street like the map indicates (ts 12).
I note that the map to which Constable McAdam referred was not tendered as an exhibit and has not been produced in this application.
Later in his cross‑examination, Constable McAdam said:
You were observed going through a green traffic control light in the far left‑hand lane and you were the only vehicle on the road at the time. It's a Sunday. There's no … not many vehicles on the road (ts 17).
When it was put to him that at 12.20 pm on a Sunday 'the city opens' and there was a lot of traffic on the road, he repeated:
There was no other vehicles on the road. You were the only vehicle in the far left‑hand lane (ts 17).
Ms Saldanha then put to Constable McAdam that she had been driving in the 'slow lane', and that she had moved to the left lane probably after the Milligan Street lights, in order to turn right into Queen Street. It is clear from this question that the left lane, so described, was the lane adjacent to the median strip. That is, the left lane as it would have appeared to Constable McAdam, looking west, from the north side of Wellington Street. Constable McAdam must have understood the terminology used by Ms Saldanha because he answered:
You went through the traffic control light in the far left‑hand lane and I've walked into the road and pulled you over (ts 18).
Given that Constable McAdam was then standing some 230.75 metres from the traffic lights, and that he recorded a vehicle at a distance of 260.2 metres, that vehicle must then have been some 29.45 metres to the west of the traffic lights. But if, as Constable McAdam said, the vehicle was in 'the far left‑hand lane', it must have been in the short third lane, created for vehicles intending to turn right into Milligan Street.
As I have noted above, a vehicle approaching the traffic lights from the west, in that lane, has no other option: the lane does not continue along Wellington Street.
Constable McAdam was cross‑examined about his use and testing of the laser device, and about the identity of the police officer who had actually stopped Ms Saldanha. However, given the view I take of his evidence as set out above, I do not think it necessary to refer to that evidence.
So far as relevant, the evidence given by Ms Saldanha, in chief and in cross‑examination, may be summarised as follows:
1.She was stopped just after the traffic control lights at the entrance to the bus station (that is, between the King and Queen Street intersections).
2.The police officer who stopped her was not Constable McAdam. The officer said she had been driving 'at 60'; and she thought he said the limit was 40 kms/hour. She said 'I didn't know it was a 40 zone'.
3.She asked that officer to point out where it was alleged she had been speeding and how the laser device worked. He said she would have to speak to the other officer.
4.The other officer was Constable McAdam.
5.She handed her driver's licence to the officer who stopped her: he gave it to Constable McAdam.
6.Both officers then walked away.
7.About two minutes later, they came back and said she would be charged with speeding.
8.She said that she had stopped at the traffic control light at the entrance to the bus station and could not have been speeding in the short distance between there and the point at which the police officer had stopped her.
9.One of the officers said:
Oh no.You were not speeding there. You were speeding there.
He showed her the laser device, which gave a reading of 260 metres.
10.She asked where that point was. The officer said:
That doesn't tell you, work it out.
11.She said it must have been someone else's car, as there were other vehicles on the road at the time (ts 25 ‑ 31).
As I have noted above, neither of the other officers on duty with Constable McAdam was called to give evidence.
The magistrate gave his decision ex tempore at the conclusion of the trial. His Honour said:
Ms Saldanha is charged that on 24th July 2005 at Perth she drove a vehicle registered number 1AKP 558 on a road namely Wellington Street in a built‑up area at a speed exceeding 50 kilometres per hour, namely 64 kilometres per hour. It's not in dispute that she was driving along Wellington Street on the day and time alleged and it's not in dispute that the area is a built‑up area it being part of the central business district of Perth and what is in dispute is the speed at which she was travelling.
The accused denies travelling ‑ ‑ denies that she was speeding and says that she doesn't speed and that she has no prior history. The attending officer, Constable McAdam, gave evidence that he was conducting laser action and with a colleague - drivers' licence checks and checks on compliance with vehicle standards regulations on Wellington Street near Milligan Street and he saw a vehicle coming in a south‑easterly direction which was towards where he was.
He trained the laser equipment on the particular vehicle. It gave a speed reading of 66 kilometres per hour, alleged speed at 64 kilometres per hour. He said that he had a clear view of the vehicle. He was able to train the laser on the particular vehicle and he gave the ‑ ‑ the registration number and the colour of the car, the registration number being that of the accused's vehicle. He also gave evidence that he had conducted the manufacturer's tests at the beginning of the ‑ ‑ his shift and then at the end in relation to the accuracy of the ‑ ‑ the equipment and that was found to be accurate.
The accused says that there were other vehicles in the area at the time. However, this is disputed by the constable. There's no evidence before me that would suggest that there was a similar vehicle to that of the accused which would give rise to a possible mistake and the evidence of the constable was that he trained the laser equipment on the numberplate of the accused's car to ensure that there was no mistake in relation to which vehicle the reading was being taken from.
On his evidence it would appear that he hadn't placed or used the equipment in a manner which would perhaps compromise the accuracy of the test. It seems to me that on the evidence before me the ‑ ‑ although the accused genuinely believed that she wasn't speeding that perhaps her attention was not properly on the equipment before her and that she may be mistaken in relation to the speed reading.
In any event I don't have any accurate guidance as to the accuracy of the speedometer in her car. I found the evidence of the constable to be consistent from examination in‑chief to cross‑examination. The equipment was working. It was trained on the accused's vehicle. It was used in compliance with the requisite requirements and I'm persuaded beyond reasonable doubt that the charge is proven (ts 33 ‑ 34).
This is a finding based on credibility: the magistrate accepted the evidence of Constable McAdam over that of Ms Saldanha. That would normally be a compelling reason to uphold such a decision on appeal. However, the magistrate did not have before him the evidence about the layout of Wellington Street and the distances between its junctions with Milligan, King and Queen Streets.
Once this evidence is taken into account, an entirely different picture emerges, for the reasons given above. Further, the evidence supports Ms Saldanha's recollection that she was stopped by another officer, after she had passed the entrance to the bus station. If she was correct, she must have been over 317 metres distant from the junction between Wellington and Milligan Streets. This would explain why Constable McAdam came up to her car after she had been stopped by another officer, having walked from the point at 230.75 metres from the traffic control lights at Milligan Street which he recorded as his position on his copy of the infringement notice.
In my view, therefore, it is probable that Constable McAdam, or the officer who stopped Ms Saldanha, mistakenly believed that she had been speeding, when in fact, it was another vehicle.
As appears from the magistrate's reasons, he did not positively accept Constable McAdam's evidence that there were no other vehicles on the road at the material time. His Honour said only that there was no evidence before him
that would suggest that there was a similar vehicle to that of the accused which would give rise to a possible mistake (ts 34).
However, it was not for Ms Saldanha to prove the existence of another vehicle: the onus remained on the prosecution to prove beyond reasonable doubt that hers was the offending vehicle.
I note that on the infringement notice, Constable McAdam had recorded the traffic density as 'medium'. Further, the running sheet records that three vehicles were stopped at 12.20 ‑ 12.21 pm. This is consistent with Ms Saldanha's evidence that there were other vehicles on the road at the same time.
For all these reasons, I consider that Ms Saldanha should be given leave to appeal, that the appeal should be allowed and the conviction set aside.
That is sufficient to deal with the application. However, Ms Saldanha's grounds of appeal raise some other issues which warrant consideration. I deal with each in turn.
Ground 1 - Failure to disclose evidence presented at court
As I have noted above, it emerged during the hearing before the magistrate that Constable McAdam had written on his copy of the infringement notice the explanation said to have been given by Ms Saldanha that:
I didn't know it was that speed.
This appears to have been regarded by the prosecution as an admission by Ms Saldanha that she had been travelling at 64 kms/hour. However, on her evidence, she said to the police officer that she did not know that the speed limit was 40 kms/hour, that being the speed limit she thought she heard him refer to.
Nothing turns on that conflict for present purposes. However, Ms Saldanha submits that because the statement attributed to her was apparently regarded as a confession, it should have been disclosed pursuant to s 35(5)(b) of the Criminal Procedure Act 2004 (WA) as soon as practicable after the prosecution notice was served on her.
Section 35 of the Criminal Procedure Act applies to any simple offence that is prescribed to be 'a prescribed simple offence' for the purposes of the section.
It is submitted by counsel for the respondent that there is no obligation of prosecution disclosure in relation to offences under reg 11(2) of the Road Traffic Code 1975 (WA). I accept that submission. That is because, by reg 10 and sch 3 of the Criminal Procedure Regulations 2005 (WA), the only prescribed offence for the purpose of s 35 of the Criminal Procedure Act is that of dangerous driving causing grievous bodily harm, under s 59A of the Road Traffic Act 1974.
Ground 3 - Refusal to allow Ms Saldanha to tender her notes
In the course of evidence at trial, Ms Saldanha sought to tender a letter she had written to 'the traffic infringements' on the day in question, setting out her version of the events (ts 12).
The magistrate ruled that the letter was not relevant; that it was a self‑serving statement and was not admissible. His Honour said:
You can only give evidence ‑ ‑ you can give evidence from your memory. You can't refer to an earlier statement that you've made or letter that you've sent. That's not admissible at law (ts 12 ‑ 13).
This ruling was only partially correct. The letter itself was not admissible. However, it would have been permissible for Ms Saldanha to refresh her memory from the letter. The law is summarised conveniently in Cross on Evidence (7th Aust ed, 2004) at [17180]:
… the witness is allowed to refer to a document in order to refresh memory, provided certain conditions are fulfilled and the court's leave is sought. The document must have been made substantially at the same time as the occurrence of the events to which the witness is required to depose. It must have been made, or read over and accepted as accurate, by the witness while the facts were still fresh in the witness's memory.
In the present case, it may be that no injustice resulted from the magistrate's ruling because Ms Saldanha's recollection of the events was clear, without recourse to her letter.
Without reviewing the letter (which has not been included in the application papers) it is not possible to determine whether it contained anything beyond the evidence given by Ms Saldanha at trial.
Ground 4 (part)
Refusal to allow Ms Saldanha to tender her son's witness statement
During the course of her evidence, Ms Saldanha sought to tender a statement from her son who had been a passenger in her vehicle at the material time. Ms Saldanha told the magistrate that her son could not be present that day because he was working. The magistrate refused to accept the statement saying that the witness 'has to be here in person' (ts 26).
Ms Saldanha points to cl 7 of sch 3 to the Criminal Procedure Act which does permit a court to admit a statement of an absent witness if certain conditions are satisfied. Where, as here, the maker of the statement was under the age of 18 years, he was required to state his age.
In the statement sought to be tendered by Ms Saldanha, her son had given his date of birth. I regard that as sufficient compliance with the condition, which is contained in cl 4 of sch 3.
The only provision of cl 7(1) which is applicable in the present case is cl 7(1)(e), which permits the admission of the statement of an absent witness if:
… all the parties consent and that the interests of justice do not require the presence of the witness.
In the present case, Ms Saldanha complains that the prosecutor was not given the opportunity to say whether he would consent to the admission of the witness's statement. While I consider this is a legitimate complaint, I am not persuaded that there has been a miscarriage of justice in this case. That is because the statement, so far as relevant, is in the following terms:
As a front passenger within the vehicle at the time, I did not observe my mother to be travelling at a speed exceeding 50 km/hr. The numerous traffic lights in the area made it seem unlikely for her to maintain such a high speed even if she wished to do so. I was shocked when my mum was asked to pull over, as speeding was the last thing I had expected her to be accused of. Her driving has always been very safe and controlled and continues to be so. I personally think a mistake or misunderstanding may have occurred.
That statement is not evidence of Ms Saldanha's actual speed at the material time. If I am wrong about that, then I consider that the interests of justice would require the presence of Ms Saldanha's son, so that he could be cross‑examined on his statement.
It follows, that even if the prosecutor had consented to the admission of the statement, it is reasonable to suppose that it would not have been admitted in any event.
Ground 4 (part)
The magistrate was biased in favour of the prosecution
Ms Saldanha complains that the magistrate was biased in favour of the prosecution. In support of that complaint, she refers to the following matters:
(1)The magistrate commented that prosecution exhibits need not be produced to Ms Saldanha.
(2)The magistrate refused to permit Ms Saldanha to refer to the letter she had written shortly after the events in question.
(3)The magistrate encouraged the prosecutor to object during Ms Saldanha's cross‑examination of Constable McAdam. An example is at ts 20 where Ms Saldanha was, in effect, making a submission during cross‑examination. The magistrate interrupted Ms Saldanha by saying 'Sergeant?' This was clearly taken by the prosecuting sergeant as an invitation to object because he replied:
No.It's all right, your Honour.
(4)Ms Saldanha attempted to show Constable McAdam where she said she had been stopped, by reference to photographs. However, the magistrate prevented her from doing so. She was allowed to produce the photographs during her evidence in chief, but had then lost the opportunity of using them as an aid to cross‑examination.
A judicial officer is placed in a somewhat invidious position when dealing with a litigant in person. That is because the judicial officer must be, and must be seen to be, impartial. However, it is equally important for the judicial officer to ensure that justice is done: and it will not be done if, through ignorance or inexperience, the litigant in person makes some elementary mistake which could easily be rectified by word of advice from the bench.
The judicial officer's dilemma is likely to be more acute in a busy court, such as the Magistrates Court, where there are very heavy listings. However, as Hasluck J said, in Keystart Loans Ltd v Haydon‑Wood [2005] WASC 231:
The Court will afford to an unrepresented litigant a degree of assistance, but that does not mean that the Court will confer upon the party in person advantages which, if he were represented, he or she would not have. The Court ought not to deprive the other side of its lawful entitlement [20].
I have the impression from the transcript, that in the present case, the magistrate was patient with Ms Saldanha. His Honour attempted to overcome the inadequacies in her cross‑examination of Constable McAdam. During the cross‑examination, Ms Saldanha repeatedly asked numerous questions at once, gave evidence and made submissions. The magistrate attempted to identify individual questions. For example, at one point he said:
… you're putting a whole lot of propositions at once. You need to put it one at a time to give the witness the chance to respond (ts 15).
Occasionally, his Honour himself asked a question so as to clarify Constable McAdam's evidence.
The matters about which Ms Saldanha complains in (1) and (2) above are not, in my view, matters of bias. For the reasons set out above, I consider that they were matters in respect to which the magistrate was in error.
The invitation to the prosecutor to object, to which Ms Saldanha refers in (3) above, was made after Ms Saldanha had asked the same question several times and was (inappropriately) making a submission during the course of cross‑examination.
As to the matters complained of in (4) above, it is not clear from the transcript that Ms Saldanha made it clear to the magistrate that she wanted to put photographs to Constable McAdam. The magistrate interrupted Ms Saldanha in order to direct her attention to the issue of her speed. The magistrate allowed Ms Saldanha to produce her photographs during her evidence in chief, even though the photographs were, somewhat inconveniently, displayed on her computer screen. The prosecutor viewed the computer screen. He could have asked for Constable McAdam to be recalled, had he thought that course would be appropriate.
It is difficult, if not impossible, to discern the magistrate's attitude to Ms Saldanha from a reading of the transcript. Much depends on the way in which the magistrate spoke. However, I am not persuaded that the magistrate was biased.
The new evidence
The new evidence on which Ms Saldanha seeks to rely consists of information in the form of articles, about the unreliability of laser devices generally.
It is not necessary to refer to this material because, in my view, it is inadmissible. Alternatively, if it is admissible it carries no weight: it has no relevance to the actual device used by Constable McAdam on 24 July 2005.
Counsel for the respondent referred me to Illich v Woodburn (2004) 41 MVR 65, in which Jenkins J permitted a self‑represented respondent to an appeal of this kind to hand up a newspaper article in which it was reported that the Victorian government had returned millions of dollars in fines to drivers after tests had revealed faulty readings from speed cameras. Her Honour said:
As I told the respondent, there is little weight that I can give to the report as it is not direct evidence that the relevant multanova was faulty or inaccurate in its measurement of his vehicle's speed [14].
Ms Saldanha's new evidence would not, therefore, have assisted her.
Other grounds of appeal
In my view, the reasons set out above deal sufficiently with Ms Saldanha's grounds of appeal against conviction. She appealed also against the award of costs against her. However, it is not necessary to deal with that matter.
Costs
At the hearing of the application, I invited submissions in relation to costs to avoid the necessity for further appearances. That is because Ms Saldanha and counsel for the respondent agreed that I would post my reasons to them respectively, as soon as they were published.
Because Ms Saldanha has acted in person, she is not entitled to recover costs in respect to the application and appeal. However, she is entitled to recover any out‑of‑pocket expenses, such as those incurred in obtaining a transcript.
Should Ms Saldanha wish to claim any costs of that kind, she should contact my associate so that appropriate arrangements may be made to deal with the matter.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SALDANHA -v- McADAM [2007] WASC 297 (S)
CORAM: TEMPLEMAN J
HEARD: 14 NOVEMBER 2007 & ON THE PAPERS (SUBMISSIONS FILED 7 MARCH 2008)
DELIVERED : 7 DECEMBER 2007
SUPPLEMENTARY
DECISION :8 MAY 2008
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:
Costs - Successful appeal against conviction - Appellant unrepresented - Unsuccessful claim for loss of earnings while attending trial - Injustice of result
Legislation:
Legal Practitioners (Official Prosecutions) (Defendants' Costs) Determination 2006 (WA), cl 4(6)
Official Prosecutions (Accused's Costs) Act 1973 (WA), s 5(5)
Result:
Application granted in part
Category: A
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):
Australian Blue Metal Ltd v Hughes [1970] 2 NSWR 119
Cachia v Hanes (1994) 179 CLR 403
Kerridge v Foley (Unreported, NSWSC, 19 August 1970)
Petrunic v Barnes [1989] VR 927
Secretary, Department of Foreign Affairs and Trade v Boswell [No 2] (1992) 39 FCR 288
TEMPLEMAN J:
Correction of error
On 7 December 2007, I delivered my reasons for decision to allow Ms Saldanha's appeal against conviction for a speeding offence.
In [72] ‑ [77] of my reasons, I concluded that the provisions of s 42 of the Criminal Procedure Act 2004 (WA) applied to simple offences such as that in issue in this appeal. It has been drawn to my attention subsequently by counsel for the respondent that this was an error. That is because s 37 of the Criminal Procedure Act limits the application of s 42 to circumstances in which a charge concerning an indictable offence is brought before a court of summary jurisdiction.
Although the error did not affect the outcome of the proceedings, it is undesirable that it should remain on the record. Counsel for the respondent submits (and I accept) that I have an inherent jurisdiction to amend my reasons for decision so as to correct error.
I have therefore removed the original [72] to [77] inclusive from my reasons and re‑issued them. The judgment appearing on the database is now in the revised form.
Costs
Having been successful in the appeal, in which she represented herself, Ms Saldanha has sought an order for the payment of her costs pursuant to s 5(5) of the Official Prosecutions (Accused's Costs) Act 1973 (WA).
Ms Saldanha claims costs under four heads. I deal with each in turn.
Costs incurred in preparing and submitting the grounds of appeal etc
Ms Saldanha claims an amount of $250 for the costs of preparing and submitting the grounds of appeal and various other submissions to the court. The costs are said to include postage, obtaining transcripts and the cost of photocopying relevant cases and articles.
Ms Saldanha made her claim initially by letter to the State Solicitor's Office. The State Solicitor accepted that Ms Saldanha was entitled to claim the amount of $250 for the expenses summarised above. I agree.
Legal advice from the Law Society
Ms Saldanha paid $25 for advice from the Law Society's 'Shopfront Lawyer'.
The State Solicitor accepted that Ms Saldanha was entitled to recover this amount. I agree.
Informal legal advice
Ms Saldanha claimed the sum of $60 being the cost of lunch with 'a lawyer friend' who provided her with informal advice about her case.
The State Solicitor's view was that this was not a proper disbursement, but that if the lawyer rendered an account for the advice, Ms Saldanha would be entitled to claim the relevant amount. I agree. I would not accept the claim for $60 unless Ms Saldanha provides an invoice from the lawyer.
Loss of wages due to court attendances
Ms Saldanha claimed $1,200 being the wages she lost while attending court on three days at a rate of $400 per day. The State Solicitor said in relation to that claim:
When you are defending a matter you do not have any entitlement to loss of wages.
Again, I agree. In Cachia v Hanes (1994) 179 CLR 403, the High Court considered the ambit of an award of costs to a litigant in person who had successfully defended a civil claim brought against him in the Supreme Court of New South Wales.
The litigant had been awarded costs. The relevant rule of the Supreme Court of New South Wales provided:
On a taxation on a party and party basis there shall be allowed all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed.
The majority of the court held that the costs for which the above rule provided were confined to money paid out or liabilities incurred for professional legal services. The costs did not include compensation for time spent by a litigant who was not a lawyer in preparing and conducting his case.
The litigant was a self‑employed consulting engineer. He claimed for loss of time which was quantified in his bill of costs at $85 per hour.
The majority of the High Court referred to 'some cases where courts have treated the loss in earnings of a litigant incurred in the course of the presentation or conduct of his case as a disbursement'. The court referred to Kerridge v Foley (Unreported, NSWSC, 19 August 1970); Secretary, Department of Foreign Affairs and Trade v Boswell [No 2] (1992) 39 FCR 288; cf Petrunic v Barnes [1989] VR 927; Australian Blue Metal Ltd v Hughes [1970] 2 NSWR 119.
In Boswell's case the Full Court of the Federal Court said:
… we think the authorities to which reference has been made establish that a litigant in person who is not a solicitor may not receive any remuneration for work done in the preparation of a case or for appearing in court. But they also establish that litigants in person are entitled to recover their out of pocket expenses. We can find nothing in the cases which obliges this Court to hold that a litigant in person who has had to have time away from his or her employment or business in order to prepare a case or to attend court to present it should not recover an indemnity for any loss of earnings suffered in consequence. That is not to permit a litigant in person to charge a sum in the nature of professional costs; rather it is to provide an appropriate indemnity against loss of earnings incurred whether in the preparation of a case or in actual attendance at court. Of course the touchstone is that of what was necessary and reasonable in all the circumstances. So long as this is the approach, no injustice can result (292).
However, in Cachia v Hanes, the majority disapproved this reasoning. Their Honours said:
Clearly, that is merely an indirect way of recompensing a litigant for time spent in the preparation or conduct of his case which, if it is not contemplated by the relevant legislation or rules, is not permissible (417).
The court's jurisdiction to award costs to Ms Saldanha arises under s 5(5) of the Official Prosecutions (Accused's Costs) Act 1973 which provides that:
The amount of costs ordered, other than court fees, shall be in accordance with the scale fixed from time to time by a legal costs determination (as defined in the Legal Practice Act 2003).
The relevant determination in the present case is the Legal Practitioners (Official Prosecutions) (Defendants' Costs) Determination 2006.
In cl 4(6) of the determination, the Legal Costs Committee determined that:
Witness fees should be allowed as a disbursement and at the discretion of the Court or the taxing officer but loss of earnings foregone of a witness or the defendant are not intended to be recoverable.
Section 3(2) of the 1973 Act provides that:
To the extent of any inconsistency between a provision of this Act and a provision of or under any other Act, or of or under any rule of court practice, the provision which is more favourable to the accused prevails.
There is, however, no other statutory provision or rule which is more favourable to Ms Saldanha in relation to her loss of earnings.
It follows, that in the light of the determination and the decision of the High Court in Cachia v Hanes it is not open to Ms Saldanha to recover the loss of earnings she has suffered as a result of defending the charge brought against her and prosecuting the appeal.
With all respect to the Legal Costs Committee, I feel bound to say that I regard this as an unjust result. Ms Saldanha was fully entitled to defend herself against a claim, which on the findings I have made, should never have been brought against her. Although a loss of earnings is clearly not an expense, in the sense of having been paid by Ms Saldanha, she is nevertheless substantially out of pocket. However, her only hope of redress would be by way of an ex gratia payment from the executive government, via the Attorney General.
In Cachia v Hanes at 416 ‑ 417, the majority said:
… there is no doubt that the inability of a litigant in person to obtain recompense for time spent in the conduct of successful litigation must on occasions be a significant deterrent to the exercise of his right to come to court in person.
Their Honours went on to refer to the position in England, where the Litigants in Person (Costs and Expenses) Act 1975 (UK) and relevant rules of court permit the court to order an unsuccessful party to pay to a litigant in person such amounts as may be allowed on taxation in respect of 'expenses and losses incurred by the litigant in or in connection with the proceedings …'
It seems that the courts in New Zealand and Canada are also able to award costs to a litigant in person so as to compensate for the loss of opportunity to earn income resulting from litigation: see Dal Pont G, Law of Costs (2003) [7.33] ‑ [7.35].
However, unless the law is changed in this jurisdiction, the potential for injustice remains, where, as in this case, it is clear that at the least, a serious error has been made by a police officer.
In addition to the specific claims made under the four headings set out above, Ms Saldanha asked the State Solicitor whether she was entitled to claim compensation
for the time and effort I put into preparing/researching the case (over 30 hours) and for the pain and suffering I endured as a result of being convicted for a crime I did not commit.
Clearly, on the basis of the decision of the High Court in Cachia v Hanes and the costs determination referred to above, Ms Saldanha has no entitlement to compensation of the kind set out above.
I therefore consider it appropriate to issue a certificate under s 9 of the Official Prosecutions (Accused's Costs) Act 1973 in an amount of $275, or $335 if Ms Saldanha produces an account for legal advice from her lawyer friend.
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