Van Doorn v Masterton
[2025] WASC 292
•25 JULY 2025
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 to Perth airport, where the speed limit is 80 km per hour.
Mr van Doorn advanced a number of interlocutory applications in the Magistrates Court and subsequently in this appeal. It is unnecessary to deal with the interlocutory matters that were before the Magistrates Court as they are not the subject of this appeal. I shall return to the interlocutory matters relevant to this appeal later in these reasons.
Magistrates Court proceedings
The matter came on for hearing in the Magistrates Court on 28 June 2024. On that occasion the learned Magistrate confirmed to Mr van Doorn that he was charged with exceeding the speed limit by between 10 km and 19 km per hour and that the penalty was $200. Mr van Doorn then confirmed that he maintained his plea of not guilty. Following some discussion, Mr van Doorn complained that he had not had sufficient opportunity to prepare his defence. The matter was adjourned to be heard at a later date.[2]
[2] Transcript, Western Australia Police v van Doorn, Perth Magistrates Court, 28 June 2024 (ts 28 June 2024).
The matter was ultimately heard on 3 September 2024 before her Honour Magistrate Scaddan. Her Honour had a typically busy list that day. When the hearing began, the learned magistrate sought to confirm that Mr van Doorn maintained his not guilty plea. To that end, the learned magistrate enquired of Mr van Doorn whether he was 'insisting on having a trial today'. Mr van Doorn's response perhaps portended the tone that may fairly be said to have characterised his approach to the charge generally. He said:[3]
No, your Honour. I'm not insisting on a trial but I'm sure the police will insist on a trial.
[3] ts 3 September 2024, 2.
As will be seen, Mr van Doorn's defence to the charge ultimately canvassed a broad range of issues. It included matters such as cl 29 of Magna Carta 1297, which Mr van Doorn attributed in his written submission to King Edward III.[4] Although Edward III had a long and notable reign, 1297 was almost 120 years before His Majesty was born. Mr van Doorn's defence also included more natural phenomena such as the prospect of intermittent gusts of wind propelling his vehicle momentarily to an excessive speed. As will be explained, the outcome of the appeal does not turn on the application of any ancient royal charter or the happenstance of a rapid passing of wind.
[4] Appellant's 'Outline of Submissions rev 2', 14 March 2025, [5.1]. Mr van Doorn ultimately withdrew reliance on Magna Carta.
The trial began with the learned magistrate explaining to Mr van Doorn the procedural steps of the trial. The learned magistrate's explanation included the following:[5]
So at the completion of the prosecution case, which includes the prosecution witness giving evidence, your cross-examination or re-examination by the prosecution, I will then call upon you to make an election as to whether you choose to give evidence or not.
That's entirely a matter for you to decide. The court can't decide that for you. If you choose to give evidence, then you will need to come into the witness box and give your evidence on oath or affirmation. You will give your evidence. The prosecutor will then have an opportunity to ask you questions, in the same way that you've had the opportunity to ask them questions. You give your evidence first and then, if you have any witnesses, they can giv e their evidence after you. At the end of hearing all of the evidence, the court then gives the parties an opportunity to make any closing submissions. That's not an opportunity to give new evidence from the bar table. It's a case that the court will have heard all the evidence from the witness box, and any documents that may be tendered under the rules of evidence can then be tendered in the witness box. It's a chance for you to point to any of the law and guide the court in terms of the assessment that the court may make with respect to the evidence given by the witnesses.
Whatever information has gone between the prosecution and yourself is not in the knowledge of the court. That is a matter between the two parties. What the court acts upon is the evidence given in the witness box on oath or affirmation, and properly tendered in accordance with the rules of evidence and accepted by the court. No other.
[5] ts 3 September 2024, 3 - 4.
Following some brief introductory comments, the prosecuting sergeant advised the learned magistrate that he understood Mr van Doorn conceded he was the driver of the vehicle on a road, in the relevant speed zone. The learned magistrate then sought to confirm that with Mr van Doorn directly:[6]
HER HONOUR: I will confirm that with you, Mr van Doorn. Yes. Just - so, what the sergeant is saying is that certain issues are not in dispute. Those issues include that you were the driver of the vehicle, whatever type of vehicle it was, on a road in Morley. Is that the case or not?
MR VAN DOORN: That's the case, your Honour, yes.
HER HONOUR: All right. Thank you for that. And I take it that this really only leaves a couple of issues that can then be in dispute, that is, the speed at which the vehicle was travelling, and/or the speed zones in which the vehicle is said to have been travelling. That's really all that's left.
[6] ts 3 September 2024, 4.
That was soon followed by this further exchange:[7]
HER HONOUR: All right. Is it the case, Mr van Doorn, that you accept the speed limit - the section of road where it was said, that it was at a certain speed limit?
MR VAN DOORN: Yes, I concede that.
HER HONOUR: Yes. What was the - it was an 80 kilometre zone, I take it.
MR VAN DOORN: Yes.
HER HONOUR: All right. Okay. So I see the issue in dispute is the vehicle - is the speed at which the vehicle is said to have been travelling.
[7] ts 3 September 2024, 5.
Following further introductory remarks from the sergeant, the learned magistrate again addressed Mr van Doorn:[8]
Stand up there, please, Mr van Doorn. All right. So in some respects, the sergeant has given a brief opening of what the prosecution case is. And the prosecution case is one whereby it's alleged that on Tonkin Highway, Morley, near Chaffers Street, the vehicle in which you concede that you were the driver of that vehicle on that road in an 80 kilometre speed zone, the prosecution case is that the vehicle was travelling at 99 kilometres per hour. So that's the prosecution case.
Now, you can give an opening in response to the prosecution case, if you choose to do so.
[8] ts 3 September 2024, 6.
Mr van Doorn indicated that he did wish to give an opening, and proceeded to tell the magistrate the following:[9]
So I would like to give you a synopsis conveying the salient reasons that motivated my defence, because it is quite a large defence. I've got 30 key defence arguments, each addressing different points of law, and each bringing in their own evidence. Because there's so many of them, just to read them out would take eight hours if they were all presented.
[9] ts 3 September 2024, 6 - 7.
The learned magistrate quite understandably advised Mr van Doorn that the court would not be devoting eight hours 'to a matter of this type'. Her Honour advised Mr van Doorn that he had five minutes to do his opening. Mr van Doorn began by complaining about the conduct of the police. He explained that he had prepared a robust defence through his own research. Mr van Doorn then continued:[10]
The research I did appalled me. I found the WA Police are conducting the largest and growing criminal enforcement operation in WA history, targeting a single offence, speeding, under the Road Traffic Act.
Although this operation ostensibly has a sound legal basis, it fails to align with its own policy and does not comport with the principles of the common law, the Constitution or the foundational powers underpinning the Constitution, raising serious questions about its legality. The operation has been marked by creeping overreach, now having progressed to targeting human nature itself, in the process generating an unprecedented stream of revenue.
The police have influenced Parliament to enact territory provisions that favour prosecution, by enabling mass computerised processes, automatic deduction of police evidence, last-minute disclosure of evidence, waiver of evidence preservation obligations, etcetera, while simultaneously raising the difficulty for defendants to contest charges. And most concerningly, the police is allowed to retain a portion of the fine's revenue, all while the system operates without achieving any tangible public interest objectives.
[10] ts 3 September 2024, 7 - 8.
After some remarks concerning the appellant's failure to retain a lawyer, Mr van Doorn explained that his own speeding charge was not the focus of his defence. His proposed arguments served a much wider and nobler cause. He then declared to the learned magistrate:[11]
I stand before you on my own, to do my part in dismantling this deplorable system. I will prove, quantify and argue each point logically and legally, presenting a comprehensive defence.
While this may result in a favourable outcome for my individual case, my primary goal is the downfall of the system, to the extent that it is unjust. I urge the court to acknowledge that it may require considerable time.
However, in the interest of administrative justice, despite a busy caseload, there is arguably no better or more efficient use of the court's time than setting important precedents relevant to millions of infringement actions, past, present and future.
By addressing unsettled points of law, the court could potentially obviate tens of thousands of future hearings, and judicially examine the biggest potential miscarriage of justice in WA history.
[11] ts 3 September 2024, 8.
In a further appeal to the far-reaching ramifications and momentous grandeur of his case, Mr van Doorn then told the learned magistrate:[12]
I'm not really talking about my individual case. I'm actually challenging the system at every level. Common law, statutory law and Constitutional law.
[12] ts 3 September 2024, 8.
The magistrate calmly and politely reminded Mr van Doorn that only evidence relevant and admissible to the matter in issue can be led, and thanked Mr van Doorn for his opening.
The prosecution then presented its case. It called one witness, a Mr Johan Kalter, who was the authorised camera operator who set up and operated the speed measuring and recording equipment. I will return to his evidence later in these reasons.
Following that evidence, the prosecution closed its case.
The following exchange then took place between the learned magistrate and Mr van Doorn:[13]
HER HONOUR: Stand up there, please, Mr van Doorn. As indicated to you at the outset, that is the completion of the prosecution case, and at the completion of the prosecution case, you are now required to make an election as to whether you decide to give evidence or not.
MR VAN DOORN: I don't think it's necessary for me to give any kind of evidence, your Honour.
HER HONOUR: All right. If you choose not to give evidence, are you calling any other witnesses?
MR VAN DOORN: I'm not calling in any witnesses, your Honour.
HER HONOUR: All right. Thank you. And that means that I've heard, now, all the evidence.
MR VAN DOORN: Yes, your Honour.
HER HONOUR: Thank you. All right. I will go - move to closing submissions, then. And so I will hear from the prosecution, and then I will hear from you, Mr van Doorn.
[13] ts 3 September 2024, 18 - 19.
The prosecuting sergeant then made brief closing submissions in unremarkable terms.
The learned magistrate then turned to Mr van Doorn and invited him to make closing submissions. The following exchange occurred:[14]
[14] ts 3 September 2024, 19 - 20.
MR VAN DOORN: Yes, your Honour. At the start, right now, I would like to give you an overview, if it pleases you, that shows all the arguments and the estimated time, although you've already cautioned me about the 4 o'clock deadline.
HER HONOUR: All right. Mr van Doorn, I asked you whether you wish to give evidence. I told you that if you're not giving evidence, then the evidence I have is what I've heard. Now is not the time for you to be handing up material. I've heard all of the evidence. You cannot hand up material. I explained that to you at the outset. If you have anything you wish to say in response to the evidence - to the prosecution closing, by all means, you can do that. But what I'm not going to do is have handed up to me now, material you say you want the court to take into account. That time has passed.
MR VAN DOORN: Your Honour, if it please the court, when I said before I don't act as a witness, that doesn't mean I don't have exhibits and arguments to defend myself in this case.
HER HONOUR: Well, and again, Mr van Doorn, as to you, I called upon you to make the election. not to give evidence. That time has now passed, cannot now hand up material to the court.
MR VAN DOORN: Your Honour, I think I misunderstood you before. I thought we were talking about me acting as a witness.
HER HONOUR: I don't think there was any misunderstanding, Mr van Doorn. You've made your choice.
MR VAN DOORN: Your Honour, if it please, all this stuff here that I've got, and at the start of the case, I said I had 30 arguments. I indicated that right from the start, and now I feel I've been tricked out of being able to put my case.
MR VAN DOORN: There was no trick, and you haven't been prevented from putting your case. You've made a choice not to give evidence. If you want to make closing submissions to me, that is fine, but you are not handing up material.
MR VAN DOORN: The 30 arguments I have will require handing up of material, and I've spent a lot of time preparing them. If you are now saying I cannot submit them, then I am at the mercy of the court, your Honour. So then I guess they will not be submitted, because I cannot - - -
HER HONOUR: All right. Do you wish to make closing submissions?
MR VAN DOORN: My closing submission is that I believe that as a self-represented person, that I have not had the opportunity to present it, which is evident by the fact that you're refusing it by a simple word.
HER HONOUR: I haven't refused anything, Mr van Doorn. I made it very clear to you at the commencement of the trial how the trial would proceed. I called upon you at the close of the prosecution case, as I said I would, to make an election to give evidence. You chose not to do so, and I'm telling you I'm not receiving evidence from the bar table. If you wish to make closing submissions, having made your election not to give evidence, that's entirely a matter for you.
The learned magistrate then delivered her verdict. Her Honour first observed that Mr van Doorn conceded he was the driver of a vehicle with respect to an incident involving an alleged speeding offence on 20 November 2023 at Morley.
The learned magistrate then continued:[15]
The prosecution, in respect of a speeding offence, needs to prove beyond reasonable doubt, in effect, four elements. That is that the accused was driving, which is a term that's defined under the Road Traffic Act. Mr van Doorn conceded he was the driver of the vehicle on that road, and I'm satisfied and I find beyond reasonable doubt that he was driving within the meaning of the Road Traffic Act. Further, the second element is that the thing being driven was a vehicle, again defined under the Road Traffic Act.
And I'm satisfied, having regard to the evidence given by Mr Kalter, who I found to be both a truthful and credible witness as a speed camera operator contracted to the WA Police by Jenoptiks to do fixed camera measurements, that the vehicle driven - Mr van Doorn drove a vehicle. That vehicle had vehicle registration lGDD 099. That the place of driving was in a speed zone as defined under the Road Traffic Code.
And I'm satisfied again, having regard to the evidence given by Mr Kalter, being an authorised person under section 9 and section 117 of the Road Traffic Administration Act, that the speed zone relevant to the alleged offence was an 80 kilometre per hour speed zone.
In addition to which I'm satisfied, having regard to the exhibits tendered by Mr Kalter, being exhibit 4 and 5, that that confirms that was in fact the case. And the final element to be proven by the prosecution beyond reasonable doubt is that the speed of the vehicle driven by the accused exceeded the speed indicated by the numerals on the speed limit sign at the commencement of the speed zone.
I'm satisfied, having regard to the evidence given by Mr Kalter, that the vehicle driven by Mr van Doorn on 20 November 2023, was recorded by the authorised speed measuring device, being a Jenoptik TraffiStar, which was authorised by the relevant Minister on 1 September 2017, recorded the vehicle travelling at 99 kilometres per hour in that speed zone, which was 19 kilometres over the posted speed limit. Pursuant to section 117 of the Road Traffic Administration Act, where an authorised speed measuring device has recorded the speed in which a vehicle is travelling, that is prima facie evidence of the speed in which the vehicle was travelling.
Thereafter, there is an opportunity for there to be evidence to displace that the recording by the approved measuring equipment. Where there is no competent evidence that displaces the recording by the authorised speed measuring equipment or device, then that prima facie evidence, in essence, converts to evidence that can be accepted by the court beyond reasonable doubt as the speed with which the vehicle was travelling at the time of the authorised speed measuring device recorded.
I am so satisfied that there is no evidence that displaces that prima facie evidence, or no competent evidence that displaces that prima facie evidence, and accordingly, I can be satisfied and find beyond reasonable doubt that the vehicle driven by Mr van Doorn on 20 November 2023, on Tonkin Highway in Morley, was travelling at speed of 99 kilometres per hour, and that was, as I find beyond reasonable doubt, in excess of the 80 kilometre speed limit zone recorded by the speed limit signs.
Accordingly, I'm satisfied that the prosecution have proven each element of the offence beyond reasonable doubt. I find the accused guilty of the offence and I enter judgment of conviction.
[15] ts 3 September 2024, 21 - 23. Under s 4 of the Road Traffic (Administration) Act2008 (WA), the Road Traffic Act 1974 (WA) is a 'road law'. Under the same section, for the purposes of a road law, the word 'drive' includes, in relation to a vehicle, to have control over the steering, movement or propulsion of the vehicle.
The learned magistrate imposed a penalty of $200 and ordered Mr van Doorn to pay costs in the sum of $373.70.
Appeal application - preliminary matters
Application for an extension of time to file the appeal
Mr van Doorn filed a notice of appeal dated 2 October 2024. It contained 14 grounds of appeal, each with many sub-grounds. As will be explained, the various grounds of appeal essentially reduce to the complaint that Mr van Doorn was unjustly deprived of the opportunity of presenting his defence at his trial in the Magistrates Court.
The notice of appeal was filed one day late. On 13 November 2024, Mr van Doorn swore an affidavit explaining the innocent error that had led to the late filing of the notice of appeal.
Forrester J observed at a directions hearing on 30 January 2025 that although Mr van Doorn had filed an affidavit on 13 November 2024 explaining the delay in filing his notice of appeal, he had not made a formal application to extend time. Forrester J made an order allowing Mr van Doorn until 14 February 2025 to file and serve that application. Mr van Doorn did so. He also filed a further affidavit on 14 March 2025 relating to the delay. In both his first and subsequent affidavit, Mr van Doorn explained that the short delay in filing the notice of appeal occurred because he did not realise until the following day that his email, by which he had attempted to file the notice, had bounced. There was no opposition to an extension of time. In the interests of justice, an extension of time should and will be granted.
Applications before Forrester J
Mr van Doorn filed an application dated 17 January 2025 seeking to have grounds 1, 2 and 3 determined at a preliminary appeal hearing. By a further application dated 19 January 2025, Mr van Doorn applied to have the solicitors for the respondent excluded from the appeal. The matter came before her Honour Forrester J for directions on 30 January 2025. In the course of the directions hearing, her Honour dismissed both applications.
At the directions hearing of 30 January 2025, Forrester J also made it plain to Mr van Doorn that in order to succeed he would need to show that there had been a substantial miscarriage of justice. Her Honour made it abundantly clear that to that end, Mr van Doorn would need to put on affidavit evidence of the matters that he claimed he would have advanced in his defence if he had been given the opportunity. Her Honour said the following to Mr van Doorn at various points in the hearing:
So in an appeal like this, you would need to put an affidavit in and an application to, in effect, adduce that evidence, to put that evidence before the court … [16]
…
I don't know what it was that you were trying to hand up. You're saying that you were deprived of putting evidence on. So I need to see what that was, or the court needs to see what that was in order to determine exactly what you were stopped from doing. So that's the first thing that needs to happen … [17]
…
I can't make a decision as to whether you were deprived of the basics of a fair trial without seeing what you were deprived of the opportunity to do … [18]
…
The court needs to know what you were stopped from doing … and it can't make that decision without seeing the materials and in order for that proper process to be followed in this appeal you need to file an application to adduce additional evidence and an affidavit annexing that additional evidence … [19]
…
If you say that you were deprived of putting evidence on and you want the court to consider that argument in full, you need to put all of the evidence that you wanted to put before the magistrate, you need to put that before this court.[20]
[16] Transcript, van Doorn v Masterton, Supreme Court of Western Australia, 30 January 2025, 5 (ts 30 January 2025).
[17] ts 30 January 2025, 6.
[18] ts 30 January 2025, 6 - 7.
[19] ts 30 January 2025, 7.
[20] ts 30 January 2025, 9.
Following some discussion about the time Mr van Doorn would require, Forrester J made an order that Mr van Doorn file and serve his affidavit by 14 March 2025.
At the directions hearing of 30 January 2025, Forrester J also observed that there was much overlap in the proposed grounds of appeal. Her Honour granted Mr van Doorn until 14 March 2025 to file his written outline of submissions.
Application to amend grounds of appeal
Taking account of Forrester J's observations regarding the overlapping grounds of appeal, Mr van Doorn filed a minute of proposed amended grounds of appeal dated 12 March 2025. The document reduced Mr van Doorn's appeal to a single ground: fundamental breaches of procedural fairness and natural justice including jurisdictional error and bias, resulting in a miscarriage of justice.[21]
[21] Appellant's minute of proposed amended grounds of appeal, 12 March 2025, [2.1].
Mr van Doorn filed a written outline of submissions on 14 March 2025. They were broadly directed to the amended ground of appeal. At the hearing of the appeal, Mr van Doorn confirmed that he wished to advance the case reflected in his outline of submissions dated 14 March 2025.[22]
[22] Transcript, van Doorn v Masterton, Supreme Court of Western Australia, 28 April 2025, 45 (ts 28 April 2025).
The outline of submissions lists provisions of various statutes, asserting that the learned magistrate had failed to comply with s 11(2) and s 13 of the Magistrates Court Act 2004 (WA) (Magistrates Court Act), breached s 144(1), s 144(3) and s 145 of the Criminal Procedure Act 2004 (WA) (Criminal Procedure Act), failed to meet the requirements of ch V of the Criminal Code Compilation Act 1913 (WA) (Criminal Code) and misapplied the Road Traffic Act 1974 (WA) (Road Traffic Act). The submissions also alleged contraventions of Magna Carta and the Australian Constitution.
On 14 March 2025, Mr van Doorn filed two affidavits in the appeal. One of these appears to have been the affidavit filed in accordance with the orders of Forrester J of 30 January 2025. The affidavit did not so much as attempt to provide the evidence that Forrester J explained would be necessary for Mr van Doorn's appeal. Rather, the affidavit repeated the essential complaints reflected in the reformulated ground of appeal and stated:[23]
I ask that the appeal be conducted on the face of the record, without the need for further evidence to be adduced.
[23] Second affidavit of Michiel Thomas van Doorn, 14 March 2025, [3.2].
The affidavit was not accompanied by an any application.
Application for an extension of time to consider the magistrate's prior employment
On 28 March 2025, Mr van Doorn filed an application accompanied by an affidavit in which he sought leave to adduce new evidence. The evidence related to the learned magistrate's prior employment as counsel for WA Police. The application also sought an adjournment of 21 days to obtain further information regarding the learned magistrate's prior employment and sought orders in respect of obtaining such information. The affidavit also appeared to seek orders for WA Police to provide employment records relating to the magistrate's prior role. The affidavit contended that the proposed evidence raised a constitutional issue regarding the appearance of judicial independence and the separation of powers. I advised at the hearing that I would rule on the application as part of these reasons. I do so below with consideration of Mr van Doorn's allegations of bias and apprehended bias.
Application for an extension of time to consider procedural requirements
On 31 March 2025, Mr van Doorn filed a further application seeking 21 days to amend and refile a variety of documents in support of his appeal. The application also sought orders directing the Registry of the court to conduct a one-hour meeting with Mr van Doorn to clarify various procedural matters. I raised the application with Mr van Doorn in the course of the hearing. Mr van Doorn described the application as 'pre-emptive' as he was concerned that there may be procedural requirements that he had failed to fulfil.[24] It became clear at the hearing that the application did not serve any material purpose. To the extent that it is necessary, I dismiss the application.
[24] ts 28 April 2025, 46.
Consideration of application to appeal
Mr van Doorn's appeal is brought under Part 2, division 2 of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act). As set out by the respondent in its outline of submissions:[25]
This appeal is brought pursuant to Part 2, division 2 of the Criminal Appeals Act 2004 (WA) (CA Act).[26] Permissible grounds of appeal are that the court made an error of law or fact, acted in excess of jurisdiction, or there has been a miscarriage of justice.[27]
Leave of the Court is required for each ground of appeal.[28] Leave must not be granted on a ground of appeal unless the ground has a reasonable prospect of succeeding.[29] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding.[30]
Often referred to as the proviso, if leave to appeal is granted on a particular ground of appeal and the ground of appeal upheld, the court may nonetheless dismiss the appeal if no substantial miscarriage of justice has occurred.[31]
[25] Respondent's outline of submissions, 4 April 2025, [3] - [5].
[26] CA Act, s 7(1).
[27] CA Act, s 8(1).
[28] CA Act, s 9(1).
[29] CA Act, s 9(2).
[30] Samuels v The State of Western Australia [2005] WASCA 193 [56].
[31] CA Act, s 14(2).
As noted, Mr van Doorn's appeal concerned allegations of a denial of procedural fairness and natural justice including jurisdictional error and bias, resulting in a miscarriage of justice. Put in various ways, the nub of the ground was an assertion of a miscarriage of justice because of the denial of the opportunity to put forward any defence. This was said to be procedurally unfair and unjust. As there was no opportunity to present a defence it was also an erroneous exercise of judicial power or a 'jurisdictional error'. The learned magistrate's conduct was also said to reflect actual or apprehended bias. These complaints reflect both the original grounds of appeal and the reformulated single ground of appeal. To the extent that Mr van Doorn alleged contraventions of the Magistrates Court Act, the Criminal Procedure Act, the Criminal Code, the Constitution and Magna Carta, the essential complaint amounted in substance to the same thing: the complete denial of the opportunity to present a defence to the charge, and the erroneous exercise of judicial power by reason of that denial, which also manifested bias or the apprehension of bias.
I am prepared to accept that the learned magistrate's remarks were objectively capable of being misunderstood in the manner asserted by Mr van Doorn. Although plainly unintended by the learned magistrate, it is in my view entirely possible that someone in Mr van Doorn's position may not have appreciated the distinction between giving oral evidence and tendering documentary evidence, and that when the learned magistrate called upon Mr van Doorn to make an election, her Honour meant evidence in all respects - both oral and documentary. It is quite possible that someone in Mr van Doorn's position would not have understood that the election not to give oral evidence was understood by the court in the circumstances as an election not to call any evidence at all, including the tendering of documentary evidence. On that basis, it would follow that Mr van Doorn was genuinely taken by surprise by the learned magistrate's ruling that he could no longer 'hand up material'. The word 'material' might also have a wider connotation than documentary evidence. The learned magistrate's refusal to accept any 'material' seems to me to be capable of being understood as having gone further than a refusal to accept admissible documentary evidence. I would add that, in any event, it is not invariably the case that documentary evidence cannot be tendered by an accused in closing submissions. In some instances, the interests of justice may warrant such a course.
Perhaps understandably, and with considerable intuition as to the inventive sophistry that was otherwise likely to follow and absorb valuable time in a busy court room, the learned magistrate was in my view regrettably hasty in shutting down Mr van Doorn's presentation.
I therefore proceed on the basis that the learned magistrate's remarks were capable of giving rise to a potential injustice. I say potential injustice, because as Forrester J made plain to Mr van Doorn, no assessment can be made of the injustice without evidence of the defence that Mr van Doorn asserts he would have advanced.
Mr van Doorn's defence
Notwithstanding Mr van Doorn's failure to provide the information contemplated by the orders of Forrester J in the affidavit he filed pursuant to those orders, at the hearing on 28 April 2025, I asked Mr van Doorn about the content of the defence that he had proposed to advance and that he claimed he was deprived of the opportunity to present. I shall come in due course to the specific answers provided by Mr van Doorn. It is first necessary to make a general observation regarding Mr van Doorn's response to that question.
Mr van Doorn asserted at the appeal hearing that he had not expected to have to deal with the defences that he had planned to present in the Magistrates Court.[32] He claimed that he understood that at the appeal hearing he would only be dealing with the 'process' and the injustice of being denied the opportunity of presenting his defence, rather than its content. In a similar vein, in submissions filed by Mr van Doorn on 7 June 2025 following the hearing, Mr van Doorn complained:[33]
When at the appeal hearing, the court nevertheless asked me to state my previously blocked defences, I was unprepared. I had not anticipated needing to reconstruct an eight-hour case from memory, without notes or exhibits, and under pressure.
[32] See for example ts 28 April 2025, 30, 37 and 44.
[33] 'Appellant's Response to Respondent Further Submissions', 7 June 2025, [1.5].
Mr van Doorn's protestations at the appeal hearing and in his subsequent submissions stand in stark contrast to the unambiguous and repeated remarks made to him by Forrester J. I doubt that his professed expectation about the appeal was the product an inability to understand the very clear remarks of Forrester J. Rather, it appears that despite Forrester J's clear explanation of what was required, Mr van Doorn proceeded on the basis of what he considered to be his own superior understanding of how the appeal should be conducted.
That attitude is confirmed by the written submissions filed by Mr van Doorn following the hearing. There, in the context of explaining why he was 'unprepared' at the appeal hearing to explain his 'blocked defences', Mr van Doorn repeated the assertion that he 'understood' the appeal 'to be limited to the court record'.[34] Given the clarity of the remarks of Forrester J, it is plain that if Mr van Doorn did in truth have that understanding, it was wholly unjustified.
[34] 'Appellant's Response to Respondent Further Submissions', 7 June 2025, [1.4] - [1.5].
Be that as it may, and, as noted, notwithstanding Mr van Doorn's failure to file the affidavit in the terms plainly contemplated by Forrester J's orders, at the hearing of 28 April 2025, Mr van Doorn was invited to explain to the court the matters he claimed he was deprived of presenting before the magistrate. Mr van Doorn gave the following answers, some of which he then supplemented in his further written submissions of 7 June 2025 despite not having been granted leave to do so.
First, Mr van Doorn said that one of his defences would have been that he was not driving. Mr van Doorn explained that he did not deny that he was the driver. Indeed he accepted that he was the driver. Rather, he contended that he was not 'driving' as that term is defined under the Road Traffic Act.
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.
The next argument which Mr van Doorn said he would have advanced is that a gust of wind could have sped the car up and the prosecution did not prove beyond reasonable doubt that this did not happen. Mr van Doorn accepted he could not have given evidence that this is what happened. However, he said he would have put into evidence 'weather reports' that showed there were gusty winds that night. Even if such a defence was open to him, as Mr van Doorn did not file the affidavit required by Forrester J's orders, it is not possible to know whether such evidence would have been in admissible form.
Mr van Doorn also contended that the prosecution had failed to prove he was driving a vehicle and that the learned magistrate had erroneously made that assumption and filled in that gap in the prosecution's case. I asked Mr van Doorn whether his defence would have included evidence as to the absence of a vehicle. He candidly accepted that he would not have done that, but maintained that it had nevertheless not been proved.
There is no basis to conclude that these defences could have been mounted with admissible evidence, less still that they enjoyed the slightest prospect of success. Further, these reasons refer, at [9] - [10], to concessions made by Mr van Doorn. These plainly establish matters which Mr van Doorn claimed he could have demonstrated were not proven. Mr van Doorn contended the concessions were merely procedural. I do not accept that; the concessions speak for themselves.
With regard to the defences identified by Mr van Doorn, there was nothing to suggest that such defences could have been supported by admissible evidence. Even if they were, there is no prospect that they would have led to an acquittal. Largely, they defy common sense.
Mr van Doorn also explained that the defence would have included a denial of procedural fairness because the camera was concealed and he did not receive certain data in relation to the camera. There is no merit in that defence. The fact that Mr van Doorn did not see or anticipate the camera is immaterial. As was evident in the course of proceedings in the Magistrates Court and as the learned magistrate explained, Mr van Doorn was provided with all the data to which he was legally entitled. At the hearing of 28 June 2024 before Magistrate Cullen, it was made clear that Mr van Doorn had made a formal application for disclosure that had been refused but that disclosure had nevertheless been provided.
In his oral submissions, quite apart from the denial of the opportunity to present his defence, Mr van Doorn submitted that the learned magistrate's reasons reflected error because they were inadequate and fell short of the requirements of s 31 of the Magistrates Court Act.
Section 31(1) of the Magistrates Court Act provides:
The Court's reasons for a judgment in a case —
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
In my assessment, the learned magistrate's reasons were not deficient. To the extent that the reasons may not have particularised and explained the relevant aspects of s 117 and s 117A of the Road Traffic (Administration) Act, this is dealt with below.
Actual or apprehended bias
I turn then to Mr van Doorn's contention that the learned magistrate's conduct manifested bias or apprehended bias.
The test for actual bias is well established. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.[36]
[36] Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507, [72].
The test for apprehended bias is also well established. The apprehension of bias principle is that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. While the fair-minded lay observer is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.[37]
[37] Charisteas v Charisteas[2021] HCA 29; 273 CLR 289, [11] - [12].
In my view, the conduct of the learned magistrate did not reflect apprehended bias, less still any actual bias. Further, the possibility that the learned magistrate may have previously been employed as a prosecutor for the police is unremarkable in the context of ordinary judicial background. It follows that I do not accept Mr van Doorn's contentions of bias or apprehended bias, and that I refuse the application at [37] for further evidence relating to the learned magistrate's previous employment and experience.
Absence of a certificate of evidence
In contrast to the defences considered above, there was one line of defence that merits substantive consideration. At the hearing, Mr van Doorn contended that one of the defences he would have raised if given the opportunity was the absence of a certificate under s 117A(2) of the Road Traffic (Administration) Act. Mr van Doorn submitted that the authority of Ireland v Jackson [2021] WASC 362 (Ireland) established that the absence of such a certificate was itself sufficient to sustain his appeal and have the matter remitted back to the Magistrates Court for a fresh trial.[38]
[38] ts 28 April 2025, 40.
Mr van Doorn did not raise this contention in the affidavit required by Forrester J's orders, nor in his written submissions on the appeal. Moreover, even accepting that Mr van Doorn was genuinely confused or mistaken as to the matters he could advance in his closing submissions, nothing the learned magistrate said to him could have led him reasonably to believe that he was not permitted to raise the absence of a certificate as a defence. The contention did not require any evidence or further materials; it was a purely legal argument based on the absence of a certificate. Mr van Doorn was not denied the opportunity to present that argument.
Be that as it may, as the matter was not raised by Mr van Doorn in his written materials. I permitted the respondent to file further submissions on the issue. I also gave leave to Mr van Doorn to file responsive submissions.
Section 117 and 117A are within div 2 of pt 6 of the Road Traffic (Administration) Act. Part 6 is entitled 'Prosecutions'. Division 2 bears the heading 'Evidentiary provisions'. I will now outline the relevant provisions as they existed at the time of the offending, 20 November 2023. Sections 117(4) to s 117(9) provided:
(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.
(5)In a prosecution for an offence under any written law evidence may be given of the use of distance measuring equipment by an authorised person on a road, of the distance between 2 identified points on the road as ascertained by the use of that equipment and of the ascertainment of the speed at which a vehicle was moving by the measurement of the time taken by that vehicle to travel that distance, and that evidence is prima facie evidence of the speed at which that vehicle was moving when it travelled that distance.
(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 (4), (5), (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 (4), (5), (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 —
(a)use distance measuring equipment; or
(b)use speed measuring equipment; or
(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.
Section 117(1) provides that 'authorised person' in relation to speed measuring and recording equipment includes a person certified by the Commissioner of Police as being competent to use the equipment.
Section 117(1) also provides that 'speed measuring and recording equipment' means apparatus of a type approved by the Minister under subsection (2)(c). Subsection 2(c) provides that the Minister may, from time to time, by notice published in the Gazette, approve of types of apparatus for the purposes of 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.
Section 117A(1) provides:
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.
Section 117A(2) then sets out the requirements of a certificate for the purposes of s 117A(1).
It was accepted by the respondent, as was plainly the case, that the prosecution did not produce a certificate under s 117A(2).
In Waite v Hennah [2021] WASCA 69, the Court of Appeal provided a helpful overview of the relevant provisions. The Court of Appeal observed at [45]:
'Speed measuring and recording equipment' is an apparatus approved as such by the relevant Minister pursuant to s 117(2)(c) for the purpose of not merely ascertaining the speed at which a vehicle is moving but also recording an image of the vehicle and various other matters. There are various evidentiary provisions which assist in a prosecution which apply to speed measuring equipment (s 117(4)), others which apply to speed measuring and recording equipment (s 117(6), (7A), (7B)) and others which apply to both speed measuring equipment and speed measuring and recording equipment (s 117(7), (8)).
The Court of Appeal went on to explain:
Section 117A is only relevant to evidence in relation to speed measuring and recording equipment. Section 117A applies to prosecutions mentioned in s 117(6). A prosecution mentioned in s 117(6) is one in which evidence is given of the use of speed measuring and recording equipment at a particular location. In the context of s 117A - and the use of speed measuring and recording equipment - provision is made for the terms of a 'certificate' by s 117A(2).
The Court of Appeal made observations regarding s 117(4) that are equally applicable to s 117(6), as follows at [85]:
The text of s 117(4) does not, in terms, provide for any shift in the legal onus or standard of proof. Rather, it provides a means by which the prosecution may meet its onus and standard. Reading and construing s 117(4) in that way is consistent with its purpose or object. Section 117(4) is an evidentiary provision which assists in a prosecution by providing a means for the prosecution to meet its onus and standard of proof.
As noted, Mr van Doorn placed reliance on the decision of Ireland. In that matter, after setting out the history of the statutory provisions, Allanson J explained [40] - [42]:
The 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).
Section 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.
Section 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.
Allanson J went on to explain at [45] - [46]:
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.
… 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.
In that matter, the prosecution called a single witness, a Mr Giumelli, a camera operator who worked for the police department. When asked if the photographs were accurate, Mr Giumelli said 'the manufacturer certifies that they're from the camera unit'. Allanson J observed that there was no other evidence as to how the photographs were recorded, retrieved or produced and the alleged driver himself, Mr Ireland, gave no evidence about his driving or speed.[39] Allanson J described the relevant evidence in the following terms: [40]
Mr 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.
[39] Ireland [23] - [24].
[40] Ireland [46].
On that basis, Allanson J was not satisfied that the image that was relied on in evidence was produced from the data retrieved from the equipment. For that and other reasons, the appeal succeeded.
The legislation was again considered by Fiannaca J in Sacchero v Rogers [2023] WASC 324 (Sacchero). His Honour explained the following regarding s 117(6) and the subsections that follow at [24] - [27]:
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. 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). 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. 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.
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.
(Citations omitted)
Fiannaca J in Sacchero also discussed the decision in Ireland. As Fiannaca J observed, the appeal in Ireland was allowed on the basis that the prosecution had not proven that the image that was relied on in evidence was produced from the data retrieved from the speed measuring and recording equipment.
In his discussion of Ireland, Fiannaca J explained that he did not consider Allanson J intended to convey 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'. Fiannaca J continued at [32]:[41]
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.
[41] Sacchero v Rogers [32] .
Turning to the evidence before the learned magistrate in this matter, the prosecution called Mr Kalter. He gave evidence in chief of the following:
(a)Mr Kalter was a camera operator with 'Jenoptik', a firm contracted by WA Police to operate fixed speed cameras;
(b)Mr Kalter produced a certificate which was accepted into evidence as Ex 1. The certificate stated that Mr Kalter was authorised by a delegate of the Commissioner of Police[42] to install, set up, test and retrieve data from the speed measuring and recording equipment: Jenoptik Robot GmbH TraffiStar S350. It further certified that Mr Kalter was 'competent to produce images from the data' from that speed measuring and recording equipment.
[42] The delegation itself was admitted into evidence as Exhibit 2.
(c)Mr Kalter explained that the equipment included a primary speed measure device which is the Jenoptik TraffiStar which is a laser device. In addition, there was a secondary radar device which is used to validate and make sure the laser is working correctly.
(d)Mr Kalter produced a copy of the Government Gazette of 1 September 2017 which was accepted into evidence as Exhibit 3, under which the Jenoptik Robot GmbH TraffiStar S350 was approved by the Minister for Police under s 117(2)(c) of the Road Traffic (Administration) Act.
(e)Mr Kalter attended the site of the camera on 16 October 2023 and tested and checked the system and equipment and the 80 km per hour speed sign at approximately 300 m before the camera. These matters were confirmed in a Site Maintenance Report authorised by Mr Kalter which was admitted into evidence as Exhibit 4.
(f)Mr Kalter attended again on 20 November 2023 and checked the same matters. These matters were confirmed in a further Site Maintenance Report authorised by Mr Kalter which was admitted into evidence as Exhibit 5.
(g)Mr Kalter also produced a document referred to as a deployment report for 20 November 2023, which Mr Kalter described as a system operational self-test. That document was admitted into evidence as Exhibit 6.
(h)Mr Kalter then produced to photographic images that were admitted into evidence as Exhibit 7. Mr Kalter gave the following evidence in respect of the photographic images in response to questions from the prosecuting sergeant, Mr Clements:[43]
[43] ts 3 September 2024, 15 - 16.
SERGEANT CLEMENTS: Now, the speed detection device produces some photographs, is that correct?
MR KALTER: Correct. The equipment recorded, on 20 November 2023 at 1.05 in the morning, a vehicle travelling southbound doing 99 k an hour in an 80 k speed zone, with the number plate 1GDD 099. I reviewed the pictures on the - in accordance with the Road Traffic Act section 117.
SERGEANT CLEMENTS: And so if you can just hold up the photos. So you've got a group of three photos to start. Just hold that one and first, with the group of three photos, so the court can see that. All right. So under the image titled Scene Image, and there's some information there at the top of the photograph?
MR KALTER: Correct.
SERGEANT CLEMENTS: Can you just explain what that information is?
MR KALTER: The first line, it says it's the laser, with the serial number 690- 00260129, which would be on the daily report as well. The location and the site numbers are Tonkin Highway, Chaffers Street, Morley, FC0016. The date, the time, the speed limit, and the actual speed of 99 k, where this vehicle was travelling. Its offence is speeding. And - -
SERGEANT CLEMENTS: So just in relation to that information you've just gone through there, so limit 80 kilometres per hour?
MR KALTER: Correct.
SERGEANT CLEMENTS: So that's the speed zone that it's - ?
MR KALTER: Correct.
SERGEANT CLEMENTS: positioned in. And speed 99 kilometres per hour, that's the speed?
MR KALTER: Of the vehicle amongst the traffic at that time, yes.
SERGEANT CLEMENTS: of the vehicle. All right. And direction receding does that mean it's going towards or away from the camera?
MR KALTER: Away from the camera.
SERGEANT CLEMENTS: Okay. All right. And did you have another - you had another photograph?
MR KALTER: Correct. This is -
SERGEANT CLEMENTS: Can you just hold that up?
MR KALTER: This is the same photograph, evidence photograph, with the vehicle in there, with all the same information. And on top, it's my system name, so it's not altered picture.
Mr van Doorn then cross-examined Mr Kalter. Through Mr van Doorn's questions, Mr Kalter confirmed that the charge is based on the information from the Jenoptik 350S, not the secondary radar device. The following exchange then took place:[44]
MR VAN DOORN: Okay. All right. So the data that the camera captures I understand the Jenoptik 350S produces a speed reading in kilometres per hour, in this case 99 ks an hour, correct?
MR KALTER: Correct.
MR VAN DOORN: But it doesn't actually measure speed, does it? It actually, I mean, it measures speed, but it collects different data. It collects, for want of a better word, timing information and direction of the beam. The actual raw data that's used to determine the speed, is that correct?
MR KALTER: I'm not a laser expert.
[44] ts 3 September 2024, 17.
The learned magistrate then ruled that Mr Kalter could not answer the question as he was not a laser expert. The following exchange then ensued:[45]
[45] ts 3 September 2024, 17 - 18.
MR VAN DOORN: So my question is, do you know exactly what the camera captures? What actual data is captured? What actual, for example, if I stand by the roadside with a ruler, I would capture a [sic] distance information. I could then calculate some numbers and make a speed. But what is it, I'm trying to distinguish between the data that the camera has captured -
HER HONOUR: What is your question, please, Mr van Doorn?
MR VAN DOORN: Do you know what the camera has captured?
MR KALTER: I'm not a software engineer. All the algorithms, that's not my department. I'm just here, what we do, we install, set up and test, and we can retrieve images from the data.
MR VAN DOORN: What happens to the data, in your knowledge, at the close of a session? At the end of a session, does the date, for example, get sent to Jenoptik for a qualification process prior to infringement prosecutions?
MR KALTER: The data will be here. It's going to be sent up and it's validated, and then it will be sent over to IMO, the Infringement Management Office.
MR VAN DOORN: What do you mean by the data gets validated?
MR KALTER: Data is validated, and then it has been sent over to IMO.
MR VAN DOORN: Can you elaborate on what is the meaning of validate?
MR KALTER: It's a valid incident. All valid incidents will be sent over to IMO.
MR VAN DOORN: Okay. And how is it determined whether an incident is valid?
MR KALTER: It's the laser. It's accurate. What's going on in the background and how is it to do with how the system is set up and software, that's not my department. I haven't set it up. But it's my understanding how it works.
MR VAN DOORN: Do you know if the data gets sent to Jenoptik for validation to make sure that the speed readings are correct and ready to prosecute? Do you have any information about that?
MR KALTER: I don't have information about that.
It is necessary to apply the principles explained in the cases discussed above to the evidence before the learned magistrate. In that regard and as noted, it was not disputed that there was no certificate under s 117A(2).
First, the statutory provisions do not limit the prosecution to proof by a certificate under s 117A(2). It remains open for the prosecution to adduce evidence, in accordance with s 117(6). Mr van Doorn's submission that the absence of a certificate of itself justified the setting aside of the conviction is not correct. The question is whether there was sufficient evidence to satisfy the requirements of s 117(6) and, insofar as the prosecution relied upon the photographic image, the matters in s 117(7B).
In my assessment, the oral evidence of Mr Kalter, the certificate at Exhibit 1, the Government Gazette at Exhibit 3 and the reports at Exhibits 4, 5 and 6 were sufficient for the learned magistrate to be satisfied of the matters in s 117(6)(a). As noted above, on the basis of Mr van Doorn's concessions, the learned magistrate was justified and indeed correct to find beyond reasonable doubt that Mr van Doorn was the driver of the vehicle at the relevant location. As the learned magistrate fairly noted, the only matter in issue was the speed at which the vehicle driven by Mr van Doorn was travelling. What therefore remained for the prosecution to prove was that the speed recorded on the photographic image was ascertained and recorded by the speed measuring and recording equipment, i.e., the Jenoptik 350S.
In my view, the learned magistrate was entitled to be satisfied of that beyond reasonable doubt. Indeed, I consider that in the circumstances, such an outcome was inevitable.
The certification in Exhibit 1 established that Mr Kalter was 'competent to produce images from the data' from the equipment. Mr Kalter gave evidence that the equipment recorded, on 20 November 2023 at 1:05 am, a vehicle travelling southbound doing 99 km an hour in an 80 km speed zone, with the number plate 1GDD 099, and that he reviewed the pictures 'in accordance with the Road Traffic Act section 117.' Mr Kalter pointed out that his system name appears at the top of the photographic image, which demonstrated that 'it's not [an] altered picture'.
In cross-examination, Mr van Doorn did not challenge the proposition that the photographic image came from the equipment. His questions were directed to the more technical aspect of precisely what data was measured and how that was then transformed into the photographic image. It was not necessary for the prosecution to prove those matters by technical expert evidence. They are matters covered by the statutory provisions. Indeed that is the very point of those provisions because it would otherwise be necessary for the State to bear the plainly impractical burden of bringing technical expert evidence for every speeding offence.
Mr Kalter's answers to Mr van Doorn's questions tended to confirm that the photographic image was ascertained and recorded and obtained from the speed measuring and recording equipment:[46]
(a)In response to Mr van Doorn's question: 'I understand the Jenoptik 350S produces a speed reading in kilometres per hour, in this case 99 ks an hour, correct?', Mr Kalter responded 'correct'.
(b)In response to Mr van Doorn's question: 'Do you know what the camera has captured?', Mr Kalter answered, 'I'm just here, what we do, we install, set up and test, and we can retrieve images from the data.'
[46] ts 3 September 2024, 17.
Moreover, the photographic image was consistent with all the other matters plainly established by Mr van Doorn's concessions and Mr Kalter's oral and documentary evidence. As the respondent submitted, it is not a reasonable hypothesis to suggest that in those circumstances the speed recorded in the photographic image was not recorded by and retrieved from the same equipment.
It may nevertheless be observed that the learned magistrate's reasons did not in any substantive way touch upon the analysis discussed above. Her Honour's reasons referred generally to s 117 but did not specifically address the requirements of s 117(6) and s 117(7B). In addition, the reasons referred to 'speed measuring equipment' rather than 'speed measuring and recording equipment' suggesting that her Honour may have intended to refer to s 117(4) rather than the applicable s 117(6). The respondent conceded that this reflected error on the part of the learned magistrate.
Section 31(1) of the Magistrates Court Act is outlined at [59] above. In Gartner v Brennan [2016] WASC 89, Pritchard J discussed the requirements of the reasons of a magistrate under s 31 of the Magistrates Court Act and explained at [58]:
The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached. The adequacy of a magistrate's reasons must be assessed by looking at the reasons as a whole, including not only findings expressly made but findings to be inferred from the findings expressly made, and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced).
It is not necessary for me to reach a concluded view as to whether the respondent's concession was correctly made and the learned magistrate so erred. That is because, on the evidence before the learned magistrate, it was open to her to conclude under the evidentiary provisions of s 117 that the charge had been made out beyond reasonable doubt. Indeed, in my view, such a conclusion was inevitable. In the circumstances, there can have been no miscarriage of justice even if the reasons articulated by the learned magistrate reflected some degree of error or inaccuracy. It would not be appropriate to speculate as to whether the learned magistrate had in mind precisely the correct subsection. Her Honour took a pragmatic and commonsense approach and adopted the conclusion that appeared to her Honour to be obvious, and that was indeed obvious and ultimately, legally correct. The learned magistrate's approach in my view cannot be criticized as having embodied any miscarriage of justice. On the contrary, the learned magistrate delivered swift justice in a manner that was appropriate and proportionate to the charge and the circumstances.
For the reasons explained above, I consider on the evidence before this court that there was no prospect that any of the defences Mr van Doorn claimed he would have advanced would have succeeded. It follows that a conviction was inevitable.
Mr van Doorn also submitted that he was not required to demonstrate that his defence might have succeeded. That is because the denial of his opportunity to present his defence rendered the proceeding so fundamentally flawed that the usual proviso of demonstrating a miscarriage of justice does not apply. He submitted that he is entitled to have the conviction set aside because at law there was really no trial at all.
Proviso - miscarriage of justice
The High Court in Wilde v R (1988) 164 CLR 365 (Wilde) explained that the proviso of having to show a miscarriage of justice does not apply when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings.
In my view, the conduct of the learned magistrate fell well short of a departure from the essential requirements of the law, so as to go to the root of the proceedings. The learned magistrate explained the process that would be undertaken at a trial in the Magistrates Court. There was some lack of clarity in that explanation that led Mr van Doorn, quite reasonably and without fault on his part, to have misunderstood the process, and in particular the process for him to adduce documentary evidence. There was therefore an element of potential unfairness in preventing him from seeking to tender his proposed documentary evidence. However, the unfairness was not acute. The learned magistrate's remarks set out at [8] above did explain that closing submissions were not an opportunity to adduce evidence and that any documents were to be tendered 'in the witness box'.
Perhaps more significantly, this matter needs to be assessed in its proper context. As the High Court observed in Wilde, there is no rigid formula to determine what constitutes such a fundamental error and no mechanical approach can be adopted. Each case must be determined upon its own circumstances.[47]
[47] Wilde v R [1988] HCA 6; 164 CLR 365, [11].
The notion of a fundamental departure from the requirements of justice must therefore be assessed contextually. This was a charge for a $200 speeding ticket to be dealt with in a busy list before a magistrate. No issue of life or liberty or serious consequence was at stake. Mr van Doorn was not vulnerable to any real prejudice. Indeed, Mr van Doorn said as much to the learned magistrate and repeated that in his most recent written submissions before this court. It is fair to say he sought to make a virtue of the absence of any prejudice to himself. His concern was, expressly, not the impact on himself. Rather, he repeatedly declared the grandiose objective of 'proving the speed enforcement system of WA is fundamentally unfair, illegal and serves no public interest'.[48]
[48] Appellant's Response to Respondent Further Submissions, 7 June 2025, [1.84].
Moreover, to the extent that this application may have raised legitimate issues of broader concern, the court gave Mr van Doorn every opportunity to advance those concerns through the very clear explanation, and indeed guidance, of Forrester J's remarks at the directions hearing of 30 January 2025 and her Honour's consequential orders for affidavit evidence. Mr van Doorn chose not to follow the guidance, or in substance, not to abide by the order. He elected not to adduce any affidavit evidence of the defences he would have advanced so as to give this court the opportunity of assessing the admissibility of such evidence and its probative value. To conclude in all those circumstances that he has been the victim of a fundamental miscarriage of justice would defy not only the principles of justice, but common sense.
In the circumstances I would refuse the application for leave to appeal and I would dismiss the appeal with the respondent's costs to be paid by Mr van Doorn. I will hear from the parties as to the basis upon which the costs ought to be assessed and/or fixed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GP
Associate to the Honourable Justice Solomon
25 JULY 2025
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