Simunovich v Stride
[2007] WASC 261
•13 NOVEMBER 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SIMUNOVICH -v- STRIDE [2007] WASC 261
CORAM: JENKINS J
HEARD: 22 OCTOBER 2007
DELIVERED : 13 NOVEMBER 2007
FILE NO/S: SJA 1015 of 2007
BETWEEN: FRANK SIMUNOVICH
Appellant
AND
MATTHEW PETER STRIDE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE D TEMBY
File No :KA 4852 of 2006
Catchwords:
Criminal law - Driving offences - Exceeding speed limit - New evidence - Offender admits he was speeding - Whether new evidence proves that offender was not driving vehicle at speed alleged by prosecution
Legislation:
Criminal Appeals Act 2004 (WA), s 39 s 40
Road Traffic Act 1974 (WA), s 98A(3)
Road Traffic Code 2000 (WA), reg 11(3), reg 17
Result:
Appeal against conviction dismissed
Appeal against sentence allowed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr P D Lochore
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Howson v The State of Western Australia (2007) 170 A Crim R 401
Rinaldi v The State of Western Australia [2007] WASCA 53
JENKINS J:
The decision under appeal
This is an application for leave to appeal from the decision of a magistrate sitting in the Magistrates Court at Kalgoorlie on 23 January 2007.The appeal is against the magistrate's decision to convict the applicant on Prosecution Notice KA 4852/2006, being a charge of exceeding the speed limit within a speed zone. The application for leave to appeal and the appeal itself were heard at the same time.
Grounds of appeal
The applicant seeks leave to appeal against the conviction on the ground that that there has been a miscarriage of justice because:
1.Fresh evidence has become available since the conviction.
2.Had that evidence been before the Magistrate, I would not have been convicted.
Details of charges and proceedings
The Prosecution Notice alleged that on 4 March 2006 at Coolgardie the applicant:
Drove a vehicle, registered number 8GG 267 on a road, namely Great Eastern Highway within a speed zone, where the numerals on the restricted sign at the beginning of the speed zone indicated a speed of 60 kilometres per hour, drove said vehicle at a speed in excess of that shown on the restricted sign, namely 94 kilometres per hour.
Road Traffic Code 2000 section [sic] 11(3).
The applicant was self‑represented before the magistrate and this court. Before the magistrate, the applicant pleaded not guilty. A trial ensued, at the conclusion of which the applicant was convicted of the charge. The magistrate fined the applicant and ordered him to pay costs.
Details of the hearing
There were some facts which were not in dispute at the hearing. These included that upon entering Coolgardie from the east along the Great Eastern Highway there is a speed limit sign of 60 kph. Upon exiting Coolgardie, still travelling east and towards Kalgoorlie, on the right hand side of the Highway the Coolgardie-Esperance Highway meets the Great Eastern Highway at a T‑intersection. Shortly prior to that intersection the Great Eastern Highway has a sweeping left hand curve before it straightens out and continues past the intersection. A relatively short distance on from the bend and intersection there is a 90 kph speed sign.
On the day in question the applicant was driving a white Toyota Land Cruiser through Coolgardie. At the same time the prosecution's only witness, Constable Matthew Peter Stride, was conducting speed detection duties on the Great Eastern Highway in the vicinity of the intersection. As the applicant drove on the Great Eastern Highway in the vicinity of the intersection Constable Stride used approved laser speed measuring equipment to measure the speed of the applicant's vehicle. Constable Stride was a competent operator of that equipment. He pulled over the applicant and alleged that his vehicle had been measured at travelling at 94 or 96 kph within the 60 kph speed zone. He advised the applicant that he would be issued with a traffic infringement notice for speeding.
At issue at trial was Constable Stride's evidence as to where he was standing when he saw, and measured the speed of, the applicant's vehicle as well as the speed of the vehicle within the 60 kph zone. The applicant denied that he was travelling at 94 kph. He testified that just prior to the 90 kph speed sign: 'I was probably travelling at 75 or 80 or something like that. I'd be guessing at that, but I was certainly under 90'.
The applicant denied that Constable Stride could have observed, and measured the speed of, his vehicle for the distance he said he did because of the bend in the road.
His proposition to the magistrate was that if the Constable's evidence in this respect was unreliable then he should not accept his evidence as to the speed the applicant's car was travelling.
In his evidence‑in‑chief, Constable Stride stated that on the day in question he was on the Great Eastern Highway, at the intersection of the Highway and the Coolgardie-Esperance Highway in Coolgardie. He said he saw the applicant's vehicle for about 100 m as it travelled towards him and he estimated that it was travelling over the 60 kph speed limit. He then used approved laser speed measuring equipment which measured the applicant's vehicle as travelling at 96 kph, 348 m ahead of his position and within the 60 kph speed limit zone. He stopped the applicant and charged him with this offence. For some reason, although the applicant's vehicle was detected at travelling at 96 kph he was charged with driving at 94 kph.
In cross‑examination, on at least four occasions Constable Stride denied that he was positioned well within the 90 kph speed zone when he measured the speed of the applicant's vehicle. On one of those occasions he said that he had done speed measuring duties a number of times in that area and he had never done them from within the 90 kph zone. He said that the 90 kph speed sign was about 100 m behind him. Thus, he was approximately 100 m within, and on the Coolgardie side of, the 60 kph speed zone. He denied that it would not have been possible for him to observe the applicant's vehicle for the length of time he said he had if he was in this position. He said that he had shown the applicant the reading on the speed measuring equipment.
The applicant gave evidence that he was a qualified, non‑practising, surveyor and was very familiar with that stretch of road. He said that on the day in question he drove his vehicle around the bend prior to the intersection and then commenced to accelerate in anticipation of the speed zone changing from 60 to 90 kph. Ahead of him and within the 90 kph zone he saw a police officer with speed measuring equipment trained on his car. He looked at his speedometer and he said, it would then be a guess but, it showed that he was doing 75 or 80 kph. He intended to be doing close to 90 kph by the time he was in the 90 kph speed zone. The police officer, who was plainly Constable Stride, maintained the equipment on his car as he drove past the 90 kph speed sign. He then stopped him and alleged that he was doing 96 kph in the 60 kph speed zone. He said that the officer did not show him the read out on the speed measuring device. He denied that he was doing 96 or 94 kph in the 60 kph speed zone.
The applicant testified that the distance from the corner of the bend to the 90 kph speed sign is about 200 m and that the speed measuring equipment could not have recorded that he was 348 m from that sign at the time he was recorded as travelling at 94 - 96 kph.
The magistrate found both Constable Stride and the applicant to be honest witnesses. However, he was of the view that the statutory provision which said that the evidence of the reading of the speed measuring equipment was prima facie evidence of the speed of the applicant's vehicle was not displaced by the opinion of the applicant as to his speed. The magistrate did not address the issue as to where the Constable was at the time he measured the speed of the applicant's vehicle.
Additional evidence
After the hearing before the Magistrate the applicant obtained further evidence. It consists of his affidavit in which he deposes that after his conviction and after revisiting the site it occurred to him that the evidence of Constable Stride as to where the constable said he was stationed at the time of measuring his speed could not be correct. He annexes an aerial photograph of the scene with handwritten notations of the distances between various points on the road. He also annexes a survey of the relevant portion of Highway, which he deposes he obtained from a Kalgoorlie surveyor. Lastly, he annexes two photographs which he says that he took from various locations on the Highway. He tendered a further photograph from the bar table.
He concludes that, on the basis of this new material, it would not be possible for a person to be standing on the Coolgardie side of the 90 kph sign to see a vehicle travelling towards them 348 or 450 m away, as Constable Stride says he did. He deposes that at these points such a vehicle would be on the Coolgardie side of the bend and well out of view. He says that Constable Stride was actually between 150 ‑ 160 m on the Kalgoorlie side of the 90 kph speed sign when he pulled him over.
The applicant has also filed an affidavit sworn by Gregory Ralph Robinson attesting that he did the survey annexed to the applicant's affidavit.
In response, the respondent has obtained the affidavit of Jason Cameron Rafferty, police officer and the current Goldfields-Esperance Traffic Co‑ordinator. Officer Rafferty deposes that using approved laser speed measuring equipment, of the same model to that used by Constable Stride, he measured various distances on the Highway. The distances can be summarized as follows:
•From the 90kph speed sign back to the intersection with the Coolgardie-Esperance highway – 74 metres;
•From the 90 kph speed sign to the point at which a vehicle traveling from Coolgardie towards Kalgoorlie would be visible after exiting the bend -246 metres; and
•From 100 metres on the Kalgoorlie side of the 90 kph speed sign to the point at which a vehicle traveling from Coolgardie towards Kalgoorlie would be visible after exiting the bend – 448 metres.
Thus, Officer Rafferty's affidavit confirms the applicant's evidence that Constable Stride was incorrect when he testified that he could see the applicant's vehicle about 450 m away from where he was standing about 100 m on the Coolgardie or western side of the 90 kph speed sign. Further, Constable Stride was incorrect when he testified that at that same position he measured the speed of the applicant's vehicle when it was 348 m away from him.
The parties now agree that if Constable Stride was correct about the distance that the applicant's vehicle was away from him at the time he saw it and then measured its speed, Constable Stride would have had to be standing at least 100 m on the eastern side, or the Kalgoorlie side, of the 90 kph speed sign. The applicant says that he was more like 150 m on the eastern side of the 90 kph speed sign.
The other possibility is that Constable Stride's evidence about those distances was incorrect. Despite the respondent's attempts to obtain it, there is no additional evidence from Constable Stride.
Admissibility of the additional evidence
The applicant does not suggest that the above evidence was unavailable at the time of the trial or that he could not have with reasonable diligence obtained such evidence. The applicant's contention is that he did not expect that at trial Constable Stride would deny what, to him, were incontrovertible facts known to both of them. Consequently, he did not realise that it would be necessary for him to have such evidence available at trial.
The respondent objects to the admission of the additional evidence on the basis that it is not fresh and, in any event, it does not show the applicant to be innocent or raise a reasonable doubt about his guilt.
An appeal from the decision of a magistrate is to be decided on the evidence and material that were before the lower court. However, there is power to admit any other evidence on the hearing of the appeal: Criminal Appeals Act 2004 (WA) s 39 and s 40.
The Act does not state the principles which should guide the exercise of the discretion to admit other evidence. In the context of the same statutory discretion in respect to the hearing of appeals by the Court of Appeal, Steytler P (Wheeler and Pullin JA agreeing) said in Rinaldi v The State of Western Australia[2007] WASCA 53 that:
While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].
This is not the time for me to decide whether the same comments apply in respect to appeals from magistrate's decisions as I have not heard full argument on the issue. I am content to determine the admissibility of the additional evidence on the basis the evidence is not fresh evidence, but rather new evidence, and that it should not now be admitted by me unless, as Roberts‑Smith JA in Howson v The State of Western Australia (2007) 170 A Crim R 401 said:
… it either shows the appellant to be innocent or raises such a doubt about his guilt in the mind of the court that the verdict ought should not be allowed to stand [44].
Clearly, this decision can not be made until the new evidence and the other evidence adduced before the magistrate has been considered in light of the factual and legal issues at trial.
Consideration of the ground of appeal
The applicant was convicted of an offence contrary to the Road Traffic Code 2000 (WA), reg 11(3) which states:
A person shall not drive a vehicle in a speed zone, at a speed exceeding, in kilometres per hour, that indicated by the numerals on the speed limit sign, at the beginning of the speed zone.
Points and modified penalty: see regulation 17.
At the relevant time, reg 17 stated:
(1)Subject to regulation 17(2), the following points and modified penalties apply for the offences in this Part that refer to this regulation for their penalty.
Description
Points
Modified Penalty
Exceeding a speed limit by ‑
(a)
Not more than 9 km/h
1 PU
(b)
More than 9 km/h but not more than 19 km/h -
(i) during a holiday period
2
2 PU
(ii) other than during a holiday period
1
2 PU
(c)
More than 19 km/h but not more than 29 km/h ‑
(i) during a holiday period
6
3 PU
(ii) other than during a holiday period
3
3 PU
(d)
More than 29 km/h but not more than 40 km/h -
(i) during a holiday period
8
5 PU
(ii) other than during a holiday period
4
5 PU
(e)
More than 40 km/h -
(i) during a holiday period
12
7 PU
(ii) other than during a holiday period
6
7 PU
In the context of the facts of this case and in order to convict the applicant of this offence the prosecution was required to prove beyond reasonable doubt that on 4 March 2006 the applicant drove his motor vehicle on the Great Eastern Highway in Coolgardie in the 60 kph speed zone. Further, that at the same time and place he drove the vehicle at a speed exceeding 60 kph.
The Road Traffic Act 1974 (WA), s 98A(3) provides that the speed ascertained by approved speed measuring equipment is prima facie evidence of the speed at which a vehicle is moving.
Regardless of the prosecution's evidence at the hearing, the applicant gave evidence which proved these elements beyond a reasonable doubt. In his submissions on appeal, the applicant did not retract any part of his evidence given at trial except perhaps to the limited extent that he expressed himself to be less sure as to how much over the speed limit he was travelling.
The new evidence does not show the appellant to be innocent or raise such a doubt about his guilt in my mind so as to persuade me that the conviction ought not to be allowed to stand. Consequently, I am not persuaded that the conviction for exceeding the speed limit ought to be set aside. However, the applicant at trial and on appeal contends that he was not travelling at the speed alleged by the respondent. Given the admissions of the applicant, the contention is not relevant to the issue of conviction but rather only to the question of penalty. In his oral submissions, the applicant drew my attention to the differences in penalty depending on how much over the speed limit he was travelling, particularly having regard to the fact that the offence occurred in a holiday period.
It is not surprising that given the wording of the prosecution notice and the fact that the applicant is not legally trained, he did not and probably still does not appreciate the difference between matters relevant to conviction and matters relevant to penalty. Nevertheless, it is not a distinction which I can ignore. Whilst there is nothing in the evidence at trial or in the new evidence which causes me to conclude that the conviction ought to be quashed, the new evidence does cause me to conclude that there should be a fresh hearing on the issue of sentence. Consequently, I admit the new evidence, including the affidavit of Officer Rafferty, in respect to penalty only.
At trial, the magistrate relied upon the evidence of Constable Stride as to the reading on the speed measuring equipment. The new evidence shows that Constable Stride could not have observed the applicant's vehicle for the length of time he said he did or measured the speed of the applicant's vehicle from the distance he said he did, if he was standing where he said he was standing. Therefore, Constable Stride must either have been standing at a different spot, well within the 90 kph speed zone, or have been in error as to the reading on the speed measuring device.
The respondent submits that it is reasonable for me to assume that Constable Stride was simply in error as to where he was standing at the relevant time. He submits that I should assume that Constable Stride was in fact standing about 100 m on the Kalgoorlie side of the 90 kph speed zone; some 200 m away from where he said he was standing. He submits that if this assumption is made, then the speed measuring device would have measured the applicant's speed at 94 ‑ 96 kph in the 60 kph speed zone. Thus the sentence ought to stand.
The difficulty I have with this approach is that it assumes that Constable Stride would concede that that was where he was standing and the decider of fact would accept that concession. I do not believe that I can make such an assumption. If Constable Stride maintained his vehement denial that he was standing anywhere other than on the Coolgardie side of the 90 kph speed sign, the only option may be to conclude that reliance should not be placed on the evidence of the speed measuring equipment. It seems to me that these matters of fact, crucial as they are to the issue of penalty, should be resolved at a hearing.
Alternatively, the respondent submitted that I could substitute a lesser sentence. The applicant said that he would be happy with this approach, in particular if the lowest penalty was substituted. Whilst for the purpose of expediency this approach is attractive, if the issue remains in dispute I do not believe that it is possible to make a finding as to how much over the speed limit the applicant was travelling without hearing from Constable Stride. His response to the new evidence is not before me. The only circumstances in which I could re‑sentence the applicant on the papers before me is if the respondent advised me that he did not wish to call any evidence on a hearing as to penalty.
Otherwise, my view is that:
1.the applicant should be given an extension of time within which to appeal against the sentence imposed on him for the offence of exceeding the speed limit;
2.the appeal notice should be amended to include an application for leave to appeal and a ground of appeal against the excessiveness of the sentence;
3.the application for leave to appeal against conviction ought to be dismissed;
4.the application for leave to appeal and the appeal itself against sentence ought to be allowed;
5.the sentence set aside; and
6.the matter remitted to the Magistrates' Court for sentence to be imposed according to law.
If the respondent does not wish to call any evidence on a hearing as to penalty, I will not make order 6 but proceed to re‑sentence the applicant.
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