Van Doorn v Masterton - [2025] WASC 292

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   VAN DOORN -v- MASTERTON [2025] WASC 292
CORAM:   SOLOMON J
HEARD:   28 APRIL 2025
FURTHER SUBMISSIONS ON 19 MAY 2025 & 7 JUNE 2025

DELIVERED          :   25 JULY 2025
FILE NO/S:   SJA 1070 of 2024
BETWEEN:   MICHIEL THOMAS VAN DOORN
Appellant
AND
KENNETH ROBERT MASTERTON
Respondent

ON APPEAL FROM:
For File No:   SJA 1070 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE SCADDAN
File Number            :   PE 9015/2024

Catchwords:

Criminal law - Appeal against conviction - Traffic offence - Speeding - Denial of right to advance a comprehensive defence - Actual or apprehended bias - Whether substantial miscarriage of justice - Absence of a certificate under s 117 of the Road Traffic (Administration) Act 2008 (WA)

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code Compilation Act 1913 (WA)
Criminal Procedure Act 2004 (WA), s 144(1), s 145
Magistrates Court Act 2004 (WA), s 11(2), s 13, s 31
Magna Carta 1297, cl 29
Road Traffic Act 1974 (WA), s 5
Road Traffic (Administration) Act2008 (WA), s 4, s 117, s 117A
Road Traffic Code 2000 (WA), reg 11(3)

Result:

Extension of time granted
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Ms G Due

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

Cases referred to in decision:

Charisteas v Charisteas [2021] HCA 29; 273 CLR 289
Gartner v Brennan [2016] WASC 89
Ireland v Jackson [2021] WASC 362
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507
Sacchero v Rogers [2023] WASC 324
Samuels v The State of Western Australia [2005] WASCA 193
Waite v Hennah [2021] WASCA 69
Wilde v R [1988] HCA 6; 164 CLR 365

SOLOMON J:

The charge

This case concerns a claim of fundamental injustice due to the alleged denial of the appellant's right to advance a comprehensive defence to a $200 speeding fine in the Magistrates Court. The appellant contended that, had he not been prevented from advancing his defence, he would have exposed the police's 'deplorable system of the largest criminal enforcement operation in WA history'.[1] The defence, it was contended, may have provided an opportunity to dismantle this system which is contrary to the public interest and targets human nature itself.
[1] Transcript, Western Australia Police v van Doorn, Perth Magistrates Court, 3 September 2024, 7 (ts 3 September 2024).
Regulation 11(3) of the Road Traffic Code 2000 (WA) provides that a person must not drive a vehicle in a speed zone at a speed exceeding the speed limit applicable to the speed zone.
By a prosecution notice dated 13 February 2024, the appellant Mr van Doorn was charged with a contravention of reg 11(3). The prosecution notice alleged that on 20 November 2023, Mr van Doorn drove a vehicle at a speed of 99 km per hour on the Tonkin Highway near the exit…

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 Van Doorn v Masterton

Details

AGLC: Van Doorn v Masterton [2025] WASC 292
Case: [2025] WASC 292
Decision Date: 25 JULY 2025

CaseChat Overview and Summary

The case of Van Doorn v Masterton involved the appellant, Mr van Doorn, who was appealing against his conviction for speeding. The dispute was centred on the definition of 'driving' and whether the prosecution had proven beyond reasonable doubt that Mr van Doorn was in control of the vehicle at the time of the offence. The case was heard in the Supreme Court of Western Australia.

The primary legal issue before the court was whether the prosecution had proven that Mr van Doorn was in control of the vehicle at the moment the speeding offence was captured by the camera. Mr van Doorn argued that the term 'driving', as defined in the Road Traffic (Administration) Act 2008 (WA), required a duration of time to establish control, which could not be captured in a split-second image. Additionally, he argued that the prosecution failed to exclude the possibility that he was micro-sleeping at the time of the offence, which would have further undermined the notion of 'control'.

The court considered Mr van Doorn's argument that the prosecution had to prove beyond reasonable doubt that he had control of the vehicle at the precise instant the image was taken. The court acknowledged that the notion of control required a duration of time which could not be captured by a split-second image. However, the court held that the prosecution did not need to prove that Mr van Doorn was in control of the vehicle at the exact millisecond the image was taken. Instead, the prosecution only needed to prove that Mr van Doorn was in control of the vehicle at some point during the period that the offence was committed.

The court concluded that the prosecution had sufficiently proven the charge beyond reasonable doubt, and there was no substantial miscarriage of justice. The absence of a certificate under s 117 of the Road Traffic (Administration) Act 2008 (WA) did not affect the outcome of the case.

The appeal was dismissed, and the conviction and sentence imposed by the Magistrates Court were affirmed.

Orders

Orders of the court

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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

The term 'driving' is not defined in the Road Traffic Act. Section 5 of the Road Traffic Act provides that Part 1 division 2 of the Road Traffic (Administration) Act 2008 (WA) (Road Traffic (Administration) Act) provides the meaning of some terms in the Road Traffic (Administration) Act. Section 4 in Part 1 division 2 of the Road Traffic (Administration) Act defines the term 'drive'. I proceed on the basis that this is the definition to which Mr van Doorn intended to refer. The statutory definition provides that the term 'drive' includes, in relation to a vehicle, to have control over the steering, movement or propulsion of the vehicle. The term 'driver' means, relevantly, any person driving a vehicle. Mr van Doorn explained that by reason of the statutory definition it was necessary for the prosecution to prove beyond reasonable doubt that he had 'control' of the vehicle at the very instant of the alleged speeding. That could not be established because it was not possible to establish that a person could be in 'control' of a vehicle at the very instant and for the fraction of a second that the image is taken. At that time, he might have blinked his eye or shifted his gaze so that he could not be said to have been in 'control' of the vehicle. The notion of 'control' requires a duration of time which the prosecution failed to prove was captured by the image, and indeed cannot be captured by a split-second image. Mr van Doorn also explained that his defence would have included the failure of the prosecution to prove the charge beyond reasonable doubt because at the instant that the image was taken, the prosecution could not exclude the possibility that Mr van Doorn was 'micro-sleeping'. I asked Mr van Doorn if his evidence would have included evidence that he had been microsleeping at the relevant time. His answer was 'yes'. Mr van Doorn submitted that although he chose not to give or bring any oral evidence, he would have proven this claim by 'judicial notice of uncontroversial scientific facts'. In further elaboration of that submission, the following exchange took place:[35]SOLOMON J: … your argument is [that it is] the burden of the police is to show that you were driving. If you're clocked for a millisecond, the human brain can't be said to have been in control of the vehicle for any particular millisecond and, therefore, there was no proof that you were driving. Therefore, you can't have committed the offence. Is that correct? VAN DOORN, MR: Yes, your Honour, because control accumulates over all those time slices, say, over 10 seconds. Control can accumulate to a level where it can be called legal control, but in an isolated 10 millisecond snapshot, if it were 10 milliseconds, but for argument's sake, a millisecond, that's not enough. SOLOMON J: To establish that you were driving. VAN DOORN, MR: To establish that I was driving. SOLOMON J: Because it's not enough to establish you had control.VAN DOORN, MR: Correct.[35] ts 28 April 2025, 33.