Waite v Hennah
[2021] WASCA 69
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WAITE -v- HENNAH [2021] WASCA 69
CORAM: MAZZA JA
BEECH JA
VAUGHAN JA
HEARD: ON THE PAPERS
DELIVERED : 5 MAY 2021
FILE NO/S: CACR 10 of 2020
BETWEEN: TIMOTHY WAITE
Appellant
AND
JOHN HENNAH
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: SMITH J
File Number : SJA 1081 of 2019
Catchwords:
Criminal law - Appeal against conviction - Whether respondent was required to comply with s 117A(4) of the Road Traffic (Administration) Act 2008 (WA) - Proper construction of s 117(4) of the Road Traffic (Administration) Act 2008 (WA) - Whether primary judge erred in law by not applying the correct legal onus and standard of proof having regard to s 117(4) of the Road Traffic (Administration) Act 2008 (WA)
Legislation:
Road Traffic (Administration) Act 2008 (WA), s 117(4), s 117A(4)
Result:
Leave to appeal refused on grounds 1 and 2
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | Not applicable |
| Respondent | : | Not applicable |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Cazzol v Fuss (1988) 6 MVR 350
Chief Executive Officer of Customs v El Hajie [2005] HCA 35; (2005) 224 CLR 159
Chief Executive Offıcer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161
Davis v Armstrong (1993) 17 MVR 190
Ex parte The Minister of Justice; Re R v Jacobson & Levy [1931] AD 466
Farkas v Thomason [2020] WASC 67
Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574
Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10; (2015) 254 CLR 489
Hands v Baker [2009] WASC 46; (2009) 52 MVR 156
Illich v Woodburn [2004] WASCA 148; (2004) 41 MVR 65
IMC Aviation Solutions Pty Ltd v Altain Khuder LLC [2011] VSCA 248; (2011) 38 VR 303
Maccione v Doughty [2019] WASC 375
Melbourne Corporation v Barry [1922] HCA 56; (1922) 31 CLR 174
Mohammadi v Bethune [2018] WASCA 98
R v Hush; Ex parte Devanny [1932] HCA 64; (1932) 48 CLR 487
R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381
Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; (1994) 181 CLR 96
Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89
Rumsley v Taylor (1997) 26 MVR 563, 564
Salvation Army (Vic) Property Trust v Fern Tree Gully Corporation [1952] HCA 4; (1952) 85 CLR 159
Waite v Hennah [2019] WASC 468
Williams v Dunn's Assignee [1908] HCA 27; (1908) 6 CLR 425
JUDGMENT OF THE COURT:
Overview
On 10 June 2019, after trial in the Magistrates Court at Albany, the appellant was convicted of an offence that, on 22 September 2018 at Bannister, he drove a vehicle in excess of the speed limit (namely 146 km per hour within a speed zone of 110 km per hour) contrary to reg 11(3) of the Road Traffic Code 2000 (WA). The appellant was fined $800 and ordered to pay costs. A subsequent application for leave to appeal against the conviction and the sentence was dismissed by a judge in the General Division.[1]
[1] Waite v Hennah [2019] WASC 468 (primary reasons).
The appellant now appeals against the decision of the primary judge. On appeal to this court the appellant's complaint is limited to the conviction. Broadly speaking, the appeal raises two issues:
1.Whether, by reason of s 117A(4) of the Road Traffic (Administration) Act 2008 (WA), the respondent was required to provide the appellant with a copy of a 'calibration certificate', a copy of a 'certificate' from the Gazette to establish that certain speed measuring equipment was approved as such and a copy of a 'relevant image' at least 28 days before the day on which the prosecution proceedings began.
2.Whether, so far as the vehicle the appellant was driving was found to be moving at a speed in excess of the speed limit, there was a misapplication of the legal onus and standard of proof (the primary judge having followed and applied the reasoning derived from the decision in Davis v Armstrong).[2]
[2] Davis v Armstrong (1993) 17 MVR 190.
For the reasons that follow the appeal should be dismissed.
The first issue is without merit. Section 117A had no application to the proceedings. The second issue raises a question of general importance. In following the line of cases commencing with Davis v Armstrong and applying the reasoning in that line of cases to s 117(4) of the Road Traffic (Administration) Act, the primary judge erred in law by not applying the correct legal onus and standard of proof. Section 117(4) provides for evidence of a stipulated character to be 'prima facie evidence of the speed at which' the relevant vehicle was travelling. In Davis v Armstrong, Murray J said that this provision had the effect that the onus of proof shifted to an accused to prove otherwise on the balance of probabilities. Davis v Armstrong should no longer be followed insofar as it so held. While in the absence of any other evidence s 117(4) operates to render evidence within its ambit sufficient to discharge the prosecution's onus of proof, wherever there is any other relevant evidence (whether adduced by the prosecution or the defence) it is for the prosecution to prove each element of the offence beyond reasonable doubt.
However, the magistrate was correct in her approach to the legal onus and standard of proof. Accordingly, the error on the part of the primary judge is insufficient to sustain the upholding of the relevant ground of appeal.
The decision in the Magistrates Court
The appellant made no complaint in relation to the primary judge's account of the proceedings in the Magistrates Court and the magistrate's decision. Accordingly, what follows substantially reproduces what was said by the primary judge. It is supplemented, where necessary, from the trial transcript.
The issue at trial in the Magistrates Court was confined. The appellant conceded that he had been driving a vehicle on a road where the speed limit was 110 km per hour. The appellant also conceded that he had been driving at more than 110 km per hour. However, the appellant disputed that he had been driving at a speed of 146 km per hour.
Accordingly, the issue in dispute at trial was whether, at the material time, the appellant was driving the relevant vehicle at a speed of 146 km per hour. Strictly speaking, given the appellant's acceptance that he was driving at more than 110 km per hour, that issue went to the question of penalty rather than guilt (see reg 11(3) of the Road Traffic Code).
The evidence at trial
The prosecution's case was that, on 22 September 2018, two police officers were conducting a highway patrol on Albany Highway. The appellant was driving on Albany Highway at that time. The police officers detected the appellant - who was driving towards them - as travelling at 148 km per hour. The speed of the car the appellant was driving was measured by means of approved speed measuring equipment known as a 'Raptor RP-1' (Raptor).
The two police officers, Senior Constable Hennah and Senior Constable Green, both gave evidence that at about 10.37 am on 22 September 2018 Senior Constable Hennah was driving an unmarked police vehicle in a southerly direction in a single lane section of Albany Highway. The appellant was driving on Albany Highway towards the officers' vehicle in a northerly direction. Immediately prior to the interception of the appellant, up until his vehicle was pulled over from the road, a dash cam video recorded the view of vehicles travelling on Albany Highway from the front view of the officers' vehicle. Audio recordings were also made by the officers when they spoke to the appellant after he stepped out of his vehicle.
The prosecutor tendered into evidence, without objection, as Exhibit 1 a copy of the Road Traffic (Speed Measuring Equipment) Notice No 2 2012 (WA) made pursuant to s 98A(2) of the Road Traffic Act 1974 (WA).[3] The notice, signed by the then Minister for Transport, approved the Raptor as a type of radar apparatus for ascertaining the speed at which a vehicle is moving.
[3] Exhibit 1 is apparently what is referred to by the appellant as the 'Gazette' or the relevant 'certificate'.
Section 98A(2) of the Road Traffic Act was the statutory predecessor to the present-day s 117(2) of the Road Traffic (Administration) Act. By s 160 of the Road Traffic (Administration) Act a notice published under s 98A(2) of the Road Traffic Act that was in effect immediately before the relevant commencement date (being 27 April 2015)[4] is, on and from the commencement date, taken to be a notice published under s 117(2) of the Road Traffic (Administration) Act. Accordingly, the notice as evidenced by Exhibit 1 is deemed to be a notice pursuant to s 117(2) of the Road Traffic (Administration) Act.
[4] Gazette 17 April 2015 p 1371. See: Road Traffic (Administration) Act s 147 (definition of 'commencement day') and Road Traffic Legislation Amendment Act 2012 (WA) s 2(d).
During the course of Senior Constable Hennah's evidence, the prosecutor tendered into evidence:
1.A dash cam video depicting: a view of Albany Highway from the officers' vehicle as they travelled south (prior to travelling towards the appellant's vehicle); a view of the appellant's vehicle (as it could be seen from the officers' vehicle) as he travelled towards and past the officers' vehicle; and a view of the officers' vehicle as Senior Constable Hennah executed a U‑turn and intercepted the appellant's vehicle.
2.Two audio files which recorded the conversation the officers had with the appellant after he stepped out of his vehicle up until he was given an infringement notice (this included a record of what was said by the officers and the appellant when the appellant viewed the reading on the Raptor inside the officers' vehicle).
Senior Constable Hennah gave evidence that he was an authorised person to test and use a speed measuring device, having been employed by the police force for many years, and that he had carried out a lot of traffic duties and had considerable experience in visually estimating the speed of vehicles on the road. Senior Constable Hennah said that at 6.40 am on 22 September 2018 he tested the Raptor for accuracy before commencing to patrol southbound along Albany Highway. At about 10.37 am, as Senior Constable Hennah was driving south with Senior Constable Green, he saw a large vehicle travelling north in the left‑hand lane and a gold coloured Kia Carnival vehicle travelling north in the right-hand overtaking lane. In Senior Constable Hennah's judgement, the Kia Carnival appeared to be travelling substantially faster than the larger vehicle in the left‑hand lane.
Senior Constable Hennah stated that when this occurred:
1.The Raptor locked on the closer vehicle (which was the Kia Carnival, in the lane closest to the police vehicle).
2.He activated the Raptor on the Kia Carnival and the Raptor emitted a high-pitch tone which indicated that the target vehicle (ie the Kia Carnival) was travelling in excess of the speed of the police vehicle (which was at that time travelling at 97 km per hour).
3.He kept tracking the Kia Carnival prior to it overtaking the larger vehicle and until it passed the larger vehicle and his vehicle (the police vehicle).
4.He tracked the Kia Carnival for probably two to three seconds in total. Part of this time was that it took about one second for the Kia Carnival to pass the larger vehicle and his vehicle (being about half a second to overtake the larger vehicle).
5.The Raptor captured a speed of the Kia Carnival of 148 km per hour.
6.The speed limit for the area was 110 km per hour. His patrol speed at the time on the Raptor was 97 km per hour. Senior Constable Hennah checked this as against the electronic speed as shown in the police vehicle. The two speeds correlated demonstrating that the Raptor was working correctly with the vehicle.
When the Kia Carnival passed Senior Constable Hennah's vehicle he executed a U-turn and intercepted the Kia Carnival. Senior Constable Hennah spoke to the appellant, pointed out to the appellant that he was speeding, and told him where the two police officers had tracked him speeding. The appellant argued and told Senior Constable Hennah 'that he has to speed to overtake other vehicles because they speed up in those overtaking lane areas'. Senior Constable Hennah showed the appellant the radar reading (recording the speed of the Kia Carnival) on the Raptor and informed the appellant that he would be issued with an infringement notice. Senior Constable Hennah took off 2 km per hour from the Raptor reading and wrote out a ticket for driving in excess of a speed limit of 110 km per hour, namely, for driving at 146 km per hour.
Senior Constable Hennah stated that he tested the Raptor at 3.40 pm at the end of the patrol. The Raptor was found to be accurate in the sense that it was 'tested to be correct'. Senior Constable Hennah also said that the appellant asked him, during their conversation, to provide the calibration date for the Raptor. Senior Constable Hennah's evidence was that the calibration date was 11 May 2018 and that the calibration was current for a year.
When cross-examined:
1.It was put to Senior Constable Hennah that instead of locking on the appellant's vehicle (the Kia Carnival) the Raptor could have been tracking vehicles that were travelling south on Albany Highway (in front of the police vehicle). Senior Constable Hennah said in response that that could not have occurred because the Raptor cannot track the speed of following vehicles and only tracks the speed of vehicles that are approaching.
2.Senior Constable Hennah was asked what the Raptor operator's manual stated was the required time to lock on to a vehicle to obtain an accurate speed. Senior Constable Hennah said he did not know the answer. The appellant informed him that the answer was three seconds.
Senior Constable Green's evidence was largely confirmatory of Senior Constable Hennah's evidence.
The appellant gave evidence that he was travelling north towards Perth (on Albany Highway) when a car in front of him was travelling at 80 or 90 km per hour (being slower than the speed limit) so he overtook that vehicle and when doing so he sped up to get around it.
The appellant went on to say that:
1.He did not deny that he was speeding when he engaged in the overtaking manoeuvre. However, the appellant did so as it was necessary because the car he was overtaking had sped up. The appellant said he sped up to protect his 'lawful interest' to be able to get back on his side of the road as required on every overtaking lane.
2.He completed the overtaking manoeuvre and when the overtaking lane ended he kept a safe distance between himself and the car in front of him when he noticed a patrol vehicle come up behind him and so he pulled his vehicle over to the side of the road.
3.When he spoke to the officers he told them he had sped up when he needed to get around a vehicle.
In cross-examination the appellant agreed that he had travelled over the 110 km per hour speed limit saying that: 'I had to'.[5] However, when asked whether he had taken particular notice of the speed he was doing at the time the appellant responded:
I was watching what I was doing. Given the fact that it's an intense situation, you got cars on your right, you've got a car on your left, there's - I'm not looking at my (indistinct), I'm looking - I'm alert on the - yes'.[6]
[5] ts 62.
[6] ts 63.
Accordingly, while accepting that he was travelling at more than 110 km per hour, the appellant was unable to state what speed he was travelling at based on the speedometer in the vehicle he was driving.
The appellant tendered into evidence a copy of a statement made by his partner, Rebekah Smith. Ms Smith stated that the vehicle the appellant was driving was her car. Among other things, Ms Smith also stated that the appellant is a very responsible driver and will only overtake if it is safe to do so and is necessary.
The magistrate's decision
The magistrate gave oral reasons for her decision. Her Honour identified that the question for determination was whether the appellant was travelling at the speed alleged by the prosecution. Her Honour was at pains to emphasise the onus and standard of proof. The magistrate stated that the appellant was presumed to be innocent of the charge. It was for the prosecution to establish the appellant's guilt beyond reasonable doubt based on the evidence that it adduced. Her Honour stated that: (1) the prosecution had to prove each element of the offence beyond reasonable doubt; (2) the appellant did not have to prove anything; but (3) there was a prima facie evidence provision in the Road Traffic (Administration) Act.
The magistrate quoted the terms of s 117(4) of the Road Traffic (Administration) Act. This provides:
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.
As well as referring to the material evidence, the magistrate made findings that:
1.Senior Constable Hennah gave untested (by which her Honour evidently meant unchallenged) evidence that he was an authorised person to test and use the Raptor which he used as speed measuring equipment.
2.Exhibit 1 established that the Raptor was authorised equipment (ie speed measuring equipment) for the purposes of the Road Traffic (Administration) Act.
3.Senior Constable Hennah gave untested (again, meaning unchallenged) evidence, which her Honour accepted, that the Raptor was calibrated on 11 May 2018 and the certification was valid for a year.
4.The appellant accepted that he was driving a vehicle on the road and that the vehicle that Senior Constable Hennah referred to was his vehicle. The video footage showed that the appellant was driving in the right‑hand north bound lane and overtaking another vehicle.
The magistrate observed that if the prosecution's case solely relied on the evidence of the police officers to the effect that their attention was alerted to the appellant's vehicle because of the speed at which it was travelling, then the case would 'clearly fail'. Her Honour stated, however, that the prosecution also relied on the reading on the Raptor and the video footage of the incident. The material issue in this respect was whether it was the appellant's vehicle that was targeted and tracked by the Raptor.
The magistrate rejected the appellant's argument that it was not his vehicle that was targeted by the Raptor - thereby, at that point, implicitly accepting Senior Constable Hennah's evidence that the Raptor did target and track the appellant's vehicle. Later the magistrate expressly found that she was satisfied that the Raptor detected and recorded the speed of the appellant's vehicle (relying on the police officers' evidence and the video footage as demonstrating that the appellant's vehicle was travelling at a greater speed than the other cars in its vicinity). However, her Honour found that, even if another vehicle was the target of the Raptor, then the appellant's vehicle was travelling faster than the other cars, the implication of which was that the appellant was going faster than the speed shown on the Raptor. The magistrate found that it was clear from the video footage that the appellant's vehicle was going faster than the other vehicles. That was also the evidence of both police officers (whose evidence was consistent with the video footage).
Her Honour made specific mention of four matters. First, the appellant did not take issue with the speed as recorded by the Raptor in the audio recording between the appellant and the police officers. When it was said to the appellant that he was speeding at 148 km per hour the appellant did not, at that stage, say that he was not speeding at that level. Second, the appellant accepted that he was speeding. Third, the appellant gave no evidence about what the speedometer on his vehicle was reading (the appellant's evidence in this respect being as reproduced at [22] above). Fourth, the appellant provided no material to the court to suggest that he was driving at a different speed to the speed recorded by the Raptor.
The magistrate made findings that:
1.Based on the video footage, the appellant was not required to speed to safely overtake - if the appellant was required to speed up while overtaking, he should not have been overtaking.
2.There was no relevant 'lawful interest' that the appellant had to protect that justified his speeding: the appellant did not advance, by way of a defence, some lawful excuse in the nature of emergency, duress or some other defence available at law.
Taking into account s 117(4) of the Road Traffic (Administration) Act, and the prima facie evidence of the Raptor reading, the magistrate accepted that the appellant was driving at the speed as alleged in the prosecution notice. Accordingly, her Honour found that the prosecution had proved its case beyond reasonable doubt.
The appeal before Smith J
The appellant was self‑represented at the appeal before the primary judge. He requested that the primary judge determine the appeal on the papers. The primary judge did so. The primary judge refused leave to appeal on each ground of appeal and dismissed the appeal.
The appellant sought leave to appeal on nine proposed grounds of appeal. As will be seen, there are only three grounds of appeal advanced on the appeal in this court. Having been unsuccessful before the primary judge, on the intermediate appeal, the appellant has proceeded in a more confined manner in this court.
In the circumstances, it is not necessary to address all the matters raised before and dealt with by the primary judge. Instead, it is convenient to address the relevant impugned findings and reasoning of the primary judge when dealing with the specific arguments raised on appeal in this court.
The grounds of appeal
The appellant's grounds of appeal to this court are as follows:
Ground 1: Her Honour erred in law when misinterpreting s 117A(4) of the Road Traffic (Administration) Act 2008 and the term speed measuring and recording equipment. It was a requirement of the respondent to provide the appellant [with] a copy of the calibration certificate at least 28 days before the day on which the proceedings begin [sic] [Reasons [37]].
Ground 2: Her Honour erred in law accepting the Magistrate's decision allowing the Gazette as evidence when s 117A(4) clearly states that the certificate (Gazette) is not admissible in evidence in a prosecution unless a copy of the certificate and a copy of the relevant image is given to the accused at least 28 days before the day on which the proceedings begin [sic] [Reasons [39]].
Ground 3: Her Honour erred in law when not applying that the appellant is presumed innocent of the charge unless the respondent establishes his guilt beyond reasonable doubt. The appellant has the right to expect that the radar equipment is proved to be accurate and is operated correctly [Reasons [53]].
Leave to appeal has been granted on ground 3. The question of leave to appeal on grounds 1 and 2 was referred to the appeal hearing. There was in fact no appeal hearing. Immediately before the appeal hearing the appellant requested that the court determine the appeal on the papers. An order was made to the effect that the appeal be determined on the papers.
The respondent contends that grounds 1 and 3 do not comply with s 16(2) of the Criminal Appeals Act 2004 (WA) on the basis that those grounds challenge the magistrate's findings rather than those of the primary judge. That suggestion may be put aside. The appellant is complaining of errors on the part of the primary judge. That is self‑evident with grounds 1 and 2; the grounds themselves direct attention to the relevant parts of the primary reasons. The appellant's submissions in support of ground 3 tend to obscure rather than to assist in identifying the alleged error. Properly understood, however, the gravamen of ground 3 is that the primary judge erred in law in failing to find an error by the magistrate of the kind asserted by the appellant. In that respect, ground 3 echoes ground 2 in the intermediate appeal before the primary judge.
The respondent opposes leave to appeal on grounds 1 and 2. On ground 3 the respondent's position is more nuanced. The respondent concedes that the primary judge erred in law in relying on a line of reasoning that commenced with a decision of Murray J in Davis v Armstrong. However, the respondent does not concede that there was any such error by the magistrate and says, in any case, that there has been no substantial miscarriage of justice. The respondent thus contends that ground 3 should be dismissed.
Grounds 1 and 2: The alleged non-compliance with the requirements of s 117A(4) of the Road Traffic (Administration) Act 2008 (WA)
Proposed grounds 1 and 2 rely on s 117A(4) of the Road Traffic (Administration) Act. It is convenient to deal with the two grounds together.
The appellant contends, in substance, that s 117A(4) has the effect that 28 days prior to the commencement of any prosecution he should have been provided with:
1.A copy of a 'calibration certificate' in relation to the Raptor (ground 1).
2.A copy of a 'certificate' (referring to Exhibit 1) and a copy of 'the relevant image' (ground 2).
The appellant's argument relies on the Raptor being found to be 'speed measuring and recording equipment' within the meaning and for the purposes of s 117 and s 117A of the Road Traffic (Administration) Act.
The appellant contends that the Raptor is speed measuring and recording equipment - as opposed to speed measuring equipment - as the Raptor may be used to produce a recorded image.
The statutory framework
Section 117 and 117A are within div 2 of pt 6 of the Road Traffic (Administration) Act. Part 6 is entitled 'Prosecutions'. Division 2 has the heading: 'Evidentiary provisions'. Section 117 relevantly provides:
117. Certain measuring equipment
(1)In this section and section 117A:
…
authorised person:
(a)in relation to distance measuring equipment, means … :
(b)in relation to speed measuring equipment, means:
(i) a police officer; or
(ii)a person certified by the Commissioner of Police as being competent to use the equipment; and
(c)in relation to speed measuring and recording equipment, means:
(i) a police officer; or
(ii)a person certified by the Commissioner of Police as being competent to install, set up, test or retrieve data from, the equipment or produce images from the data;
…
speed measuring and recording equipment means apparatus of a type approved by the Minister under subsection (2)(c);
speed measuring equipment means apparatus of a type approved by the Minister under subsection (2)(a).
(2)The Minister may, from time to time, by notice published in the Gazette, approve of types of apparatus for the purposes of:
(a)ascertaining the speed at which a vehicle is moving; or
…
(c)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.
(3)The Minister may, by notice published in the Gazette, revoke an approval under subsection (2).
(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)…
(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) or (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) or (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)…; 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.
Accordingly, there is a clear distinction between 'speed measuring equipment' and 'speed measuring and recording equipment'. 'Speed measuring equipment' is an apparatus approved as such by the relevant Minister pursuant to s 117(2)(a) for the purpose of ascertaining the speed at which a vehicle is moving. '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 evidentiary provision in s 117(4) of the Road Traffic (Administration) Act is not conditional on the provision of any certificate or image. It requires only that evidence be given of the use of some speed measuring equipment by an 'authorised person' (which includes a police officer): (1) in relation to 'a' vehicle - necessitating that the vehicle be identified; and (2) of the speed at which the identified vehicle was moving as ascertained by the use of that speed measuring equipment. Section 117(7) is an evidentiary provision which assists in proving that apparatus used by an authorised person was speed measuring equipment.
Section 117A of the Road Traffic (Administration) Act relevantly provides:
117A. Evidentiary provisions for images recorded by speed measuring and recording equipment
(1)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.
(2)For the purposes of subsection (1), the certificate is a certificate purporting to be signed by the Commissioner of Police, certifying that:
(a)the equipment, specified in the certificate, was speed measuring and recording equipment; and
(b)the equipment was installed or set up by an authorised person, named in the certificate, in accordance with the approved procedure on a day specified in the certificate; and
(c)the equipment was tested by an authorised person, named in the certificate, in accordance with the approved procedure on a day, specified in the certificate, that was within the prescribed number of days (for that type of equipment) before the day on which the alleged offence was committed; and
(d)on the specified day referred to in paragraph (c) and on the day on which the alleged offence was committed, the equipment was accurate and operating properly; and
(e)data relating to the vehicle and its speed, and the time and place at which its speed was ascertained and the data recorded, was retrieved from the equipment by an authorised person, named in the certificate, in accordance with the approved procedure; and
(f)the data referred to in paragraph (e) was used to produce the image by an authorised person, named in the certificate, in accordance with the approved procedure.
(3)The certificate is prima facie evidence of the matters in it.
(4)A certificate under subsection (2) is not admissible in evidence in a prosecution mentioned in section 117(6) unless a copy of the certificate and a copy of the relevant image are given to the accused at least 28 days before the day on which the proceedings begin or within a shorter period that is agreed by the accused.
(5)If a copy of the image and the certificate have been given as required by subsection (4), the accused cannot challenge or call into question a matter certified in the certificate unless:
(a)notice in writing of the accused’s intention is given to the prosecutor at least 14 days before the proceedings begin; or
(b)the court, in the interests of justice, gives the accused leave to so do.
(6)A notice under subsection (5)(a) must specify the matter that is to be challenged or called into question.
(7)In a prosecution mentioned in section 117(6), it is to be presumed, in the absence of evidence to the contrary, that a certificate under subsection (2) purporting to have been signed by the Commissioner of Police was so signed, without proof of the signature of the person purporting to have signed it or proof that the purported signatory was the Commissioner.
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). Such a certificate has characteristics that might be thought to correspond with the concept of a 'calibration certificate' as referred to by the appellant. In accordance with s 117A(4), for such a certificate to be admissible a copy of the certificate and a copy of the relevant image must be given to the accused at least 28 days before the day on which the prosecution proceedings were commenced.
The reasoning and conclusion of the primary judge
The primary judge found, in substance, that s 117A of the Road Traffic (Administration) Act had no application to the proceedings. Section 117A applied to 'speed measuring and recording equipment' but not to 'speed recording equipment'. The Raptor was the latter rather than the former.[7]
Disposition of ground 1 and 2
[7] Primary reasons [37], [40] - [41].
The appellant's argument in support of grounds 1 and 2 assumes that the Raptor must constitute 'speed measuring and recording equipment' for the purposes of s 117 and s 117A of the Road Traffic (Administration) Act if the Raptor can be used to produce an image of and hence record a vehicle.
It is not necessary to examine the factual basis for the appellant's assumption. Whether the Raptor is 'speed measuring and recording equipment' within the meaning and for the purposes of s 117 and s 117A does not depend on its image taking and recording abilities. Rather, as a matter of statutory construction, by s 117(1) an apparatus of a type approved by the Minister under s 117(2)(a) is 'speed measuring equipment' whereas an apparatus of a type approved by the Minister under s 117(2)(c) is 'speed measuring and recording equipment'. Thus whether the Raptor is speed measuring equipment or speed measuring and recording equipment wholly depends on whether it was approved as one or the other by the Minister.
The Raptor was approved as speed measuring equipment. That is clear from the terms of the gazetted approval. The Road Traffic (Speed Measuring Equipment) Notice No 2 provides:
2.Approval of radar apparatus for ascertaining speed
I approve as a type of radar apparatus for ascertaining the speed at which a vehicle is moving apparatuses that bear the names 'KUSTOM SIGNALS, INC.' and 'Raptor RP-1'.[8]
[8] Exhibit 1.
Accordingly, the approval invokes the words in s 117(2)(a) (an apparatus for 'ascertaining the speed at which a vehicle is moving') rather than the words in s 117(2)(c) (an apparatus for 'ascertaining the speed at which a vehicle is moving, recording an image of the vehicle and recording' the matters in s 117(2)(c)(i) - (iv)). It is an approval of the Raptor as 'speed measuring equipment' rather than 'speed measuring and recording equipment'.
The nature of the approval is confirmed by the provenance of the Road Traffic (Speed Measuring Equipment) Notice No 2. As mentioned, it was an approval pursuant to s 98A(2) of the Road Traffic Act. Section 98A(2) provided only for speed measuring equipment - approved types of apparatus for the speed at which a vehicle is moving - rather than speed measuring and recording equipment.
The obligation under s 117A(4) only arises in relation to speed measuring and recording equipment. The Raptor was not speed measuring and recording equipment. Accordingly, the obligation under s 117A(4) did not apply in relation to the Raptor. In terms of grounds 1 and 2 there was no obligation to provide the appellant, at least 28 days before the prosecution began, with a s 117A(4) certificate and copy of the relevant image. Section 117A(4) did not apply to the matter. Nor was there an obligation to provide a copy of the Road Traffic (Speed Measuring Equipment) Notice No 2 - this not being an obligation under s 117A(4) in any event.
The primary judge was correct to find that the Raptor was speed measuring equipment and that s 117A of the Road Traffic (Administration) Act had no application.
Proposed grounds 1 and 2 are wholly misconceived. Neither ground has a reasonable prospect of succeeding. Leave to appeal on proposed grounds 1 and 2 should be refused.
Ground 3: The alleged failure to apply the correct onus and standard of proof
The appellant's submissions
The respondent identified five strands in the appellant's submissions in support of ground 3. The appellant submitted that:
1.A calibration certificate was required to prove the accuracy of his alleged speed.
2.The presumption of innocence was not applied - it was for the respondent to prove the appellant's guilt beyond reasonable doubt.
3.The magistrate was biased against the appellant.
4.The magistrate and the primary judge erred by dismissing the possible inferences raised by the appellant that displaced the prima facie evidence.
5.The magistrate failed to take into account the appellant's own evidence as to the speed at which he was travelling.
The latter three submissions go beyond the scope of ground 3. Ground 3, in substance, raises whether the primary judge erred in law by not applying - and failing to find that the magistrate did not apply - the correct onus and standard of proof. In that regard ground 3 also asserts that there is a necessity for the respondent to prove that any radar equipment is proved to be accurate and is operated correctly. The submissions at [58.3] - [58.5] above go to other matters. This court considers whether there was error in the primary court by reference to grounds of appeal, not submissions. The submissions at [58.3] - [58.5] above may be put aside as exceeding the scope of ground 3. In any event, for the reasons given by the primary judge, there is no merit in submissions [58.3] and [58.4]. As to [58.5], in this appeal the appellant claims for the first time that he submitted to the magistrate that he was not travelling above 130 km per hour. However, as explained by the respondent in his written submissions, the appellant did not give that evidence in an admissible form at his trial.
Otherwise, in support of ground 3, the appellant contended that the prosecution had to prove the alleged speed at which his vehicle was travelling beyond reasonable doubt. He said that this could not be done without a calibration certificate. According to the appellant, a calibration certificate was required to prove the accuracy of the Raptor so as to ensure that the alleged speed of the vehicle was accurate.
The appellant referred to Davis v Armstrong and authorities which had considered that decision. He submitted that, in the Magistrates Court, it was 'evident that the burden did not lay on the prosecution rather the burden lay on the appellant'. The appellant said that this was not considered by the primary judge in the intermediate appeal. In particular, neither the magistrate nor the primary judge took note of the possible inferences that the appellant raised.
The appellant contended that, taking into account all the evidence and in particular that submitted by the appellant, there must have been a reasonable doubt.
The reasoning and conclusion of the primary judge
The primary judge held that, where speed measuring equipment is used to detect the speed of a vehicle, there is no obligation to provide a calibration certificate. Her Honour stated that the prosecution is able to rely on the presumption in s 117(4) of the Road Traffic (Administration) Act by tendering into evidence a notice published in the Gazette.[9]
[9] Primary reasons [44].
The primary judge stated:
Once the notice is tendered into evidence there is prima facie evidence before the court that the speed reading recorded by the speed measuring equipment specified in the notice was the speed at which the vehicle in question was moving at the time that equipment was used.
In Hands v Baker, Blaxell J explained the effect of the presumption (as it was then) in s 98A of the Road Traffic Act:
Once such evidence has been given, the burden passes to the defendant to displace the prima facie effect of the same. This onus is discharged if there is evidence which establishes on the balance of probabilities, that the speed of the vehicle that the defendant was driving, did not exceed the limit at the relevant time (Davis v Armstrong (1993) 17 MVR 190).
In this matter, the prosecution tendered into evidence, without objection from [the appellant] (as exhibit 1) the Gazette notice (as prescribed in s 117(2)) approving the Raptor for the purposes of ascertaining the speed at which a vehicle is moving. Once the notice was tendered into evidence, the burden of proof shifted to [the appellant] to prove, on the balance of probabilities, that the speed of the vehicle that he was driving did not exceed the speed limit of 110 km/h.[10]
[10] Primary reasons [44] - [46].
Accordingly, the primary judge considered that there was a shifting onus. On the primary judge's view, once the criteria in s 117(4) were satisfied, the prima facie evidence provision had the effect that the burden of proof moved to the appellant. It became necessary for the appellant to prove, on the balance of probabilities, that the speed of the vehicle he was driving did not exceed the relevant speed limit. The primary judge reached this conclusion based on Hands v Baker[11] which in turn relied on the decision of Murray J in Davis v Armstrong.
The line of authority commencing with Davis v Armstrong
[11] Hands v Baker [2009] WASC 46; (2009) 52 MVR 156.
Davis v Armstrong concerned s 98A(3) of the Road Traffic Act. Section 98A(3) has since been repealed. Section 117(4) of the Road Traffic (Administration) Act is in similar terms as the former s 98A(3) - the operative words of the prima facie evidence provision being in the same terms in the two statutory provisions.[12] At issue in Davis v Armstrong was a conviction for exceeding the speed limit. The offender was recorded by a police officer using a radar speed measuring device as travelling at 108 km per hour in a 90 km per hour zone. The offender applied for leave to appeal against the conviction on the ground that the device had not been properly tested after use.
[12] Section 98A(3) referring to the evidence being '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'.
Having referred to the terms of s 98A(3), Murray J stated:
The use of the term 'prima facie evidence' in that context, is a reference to evidence which will prove the fact in issue in the absence of further evidence from the other side. Such evidence not being forthcoming, the prima facie proof becomes conclusive proof and, in the context of a prosecution such as this, enables the complainant to discharge the onus lying upon him to establish beyond a reasonable doubt that the speed of the applicant's vehicle on the occasion in question, did indeed exceed the 90 km per hour speed limit …
Section 98A(5) [the equivalent of s 117(9) of the Road Traffic (Administration) Act] preserved the applicant's capacity to introduce 'competent evidence' bearing on the question of his guilt of the offence of speeding with which he had been charged, and so it would work in the following way. It was competent for the prosecution to proceed upon the basis of the evidence given under s 98A(3) that the speed measuring equipment in question was used by [the relevant police officer] in relation to the applicant's vehicle and of the reading of speed which it gave. To be admissible, in my opinion, that evidence did not require to be supported by any evidence as to the accuracy of the machine. That evidence established the speed of the vehicle at a prima facie level. If it remained unchallenged, at the end of the day it became evidence capable of establishing the speed of the applicant's vehicle beyond a reasonable doubt and that would be the inevitable conclusion in those circumstances.
The burden then fell upon the applicant to adduce evidence capable of displacing the prima facie effect of the prosecution evidence: Madgen v Ashe. In other words the onus was thrown upon the applicant to prove on the balance of probabilities that his speed did not exceed the limit at the relevant time. He could do that by displacing the prima facie evidentiary effect of the speed measuring device by throwing doubt on its accuracy by establishing that it had not been properly tested, or that the circumstances were such that it might not have operated accurately exclusively with respect to the applicant's vehicle, or he could seek to displace the prima facie evidentiary effect of the speed measuring equipment by persuading the court of trial to accept evidence, either his evidence or that of other witnesses, to the effect that he was not exceeding the speed limit: Cazzol v Fuss.[13] (citations omitted) (emphasis added)
[13] Davis v Armstrong (192).
The offender in Davis v Armstrong did not attempt that exercise. He left unchallenged the capacity of the machine to establish accurately the speed of his vehicle in the circumstances of its use on the occasion in question. There being no challenge to the prima facie evidence provided by the speed measuring equipment, having regard to the accuracy and operation of the machine, Murray J considered it was open to the magistrate to conclude that the offender's evidence was insufficiently cogent to cast doubt on the prima facie evidence provided by the speed measuring equipment.
There is a difficulty with the analysis in Davis v Armstrong. Murray J referred to Cazzol v Fuss[14] in support of the proposition that, the prima facie evidence provision becoming operative, an onus fell on the accused to prove on the balance of probabilities that his speed did not exceed the speed limit. Cazzol v Fuss is a South Australian decision. The relevant South Australian legislation was in materially different terms to s 98A(3) of the Road Traffic Act (and s 117(4) of the Road Traffic (Administration) Act). The South Australian legislation provided, in substance, that certain certified documents as to speed shall 'in the absence of proof to the contrary' be proof of the facts certified. This was construed as providing for the onus of proof to switch to the accused - the accused having the task to prove on the balance of probabilities that he or she had not in fact exceeded the speed limit.[15]
[14] Cazzol v Fuss (1988) 6 MVR 350.
[15] Cazzol v Fuss (351 - 352).
The difference in statutory language has the result, in our view, that Cazzol v Fuss provides no assistance in construing the effect of s 98A(3) of the Road Traffic Act and its statutory successor in s 117(4) of the Road Traffic (Administration) Act.
Nevertheless, over the years numerous first instance decisions have followed and applied this aspect of Davis v Armstrong.[16]
Disposition of ground 3
[16] See eg: Rumsley v Taylor (1997) 26 MVR 563, 564; Illich v Woodburn [2004] WASCA 148; (2004) 41 MVR 65 [17] - [19]; Hands v Baker [6]; Maccione v Doughty [2019] WASC 375 [76] - [77], [92]; Farkas v Thomason [2020] WASC 67 [61] - [62], [65].
Ground 3 may be addressed in three parts. First, it is convenient to consider the appellant's suggestion that the Raptor had to be proved to be accurate and to have been operated correctly. Second, whether the primary judge erred in law by not applying the correct onus and standard of proof. Finally, whether the primary judge erred in failing to find that the magistrate erred in law by not applying the correct onus and standard of proof.
The accuracy and operation of the speed measuring equipment
The appellant's submissions have been recounted at [58.1] and [60] above. In substance, as in ground 1, the appellant contended that a calibration certificate was required to prove the accuracy of the speed recorded by the Raptor.
There is no such requirement.
Section 117A of the Road Traffic (Administration) Act was not engaged. Section 117(4) has no requirement that a calibration certificate be produced. The requirements for the operation of s 117(4)'s 'prima facie evidence' provision have been discussed at [46] above. Those requirements were met in the present case. Exhibit 1 established that a Raptor was speed measuring equipment for the purposes of s 117. There was, in terms of s 117(7), evidence by Senior Constable Hennah (being, as a police officer, an 'authorised person') that the apparatus he was using was a Raptor.[17] Senior Constable Hennah also gave evidence of his use of the Raptor, in relation to the vehicle the appellant was driving, and of the speed at which the appellant's vehicle was moving as ascertained by the use of the Raptor. Senior Constable Hennah 'activated the Raptor radar on that vehicle and captured a speed of 148 km per hour'.[18]
[17] ts 20.
[18] ts 20.
In the circumstances, s 117(4) has the effect that there was 'prima facie evidence' that the appellant's vehicle was moving at a speed of 148 km per hour at the time of the use of the Raptor.
Whilst irrelevant to the operation of s 117(4), there was also evidence as to the accuracy of the Raptor. Senior Constable Hennah gave unchallenged evidence that the Raptor had a calibration date of 11 May 2018 (ie a little over four months before the alleged offence) and that the calibration was current for a year.[19] Moreover, the Raptor was tested and found to be accurate both before and after the police officers' patrol on 22 September 2018.[20] Senior Constable Hennah also gave evidence that he checked his patrol speed at about the time of measuring the speed of the appellant's vehicle to ensure, as was the case, that the Raptor was working correctly.[21]
Did the primary judge apply the correct onus and standard of proof?
[19] ts 25.
[20] ts 20, 26.
[21] ts 20, 22.
The primary judge, quite understandably given its widespread acceptance at first instance, followed and applied Davis v Armstrong. The question on appeal in this court is whether Davis v Armstrong was correctly decided so far as it provides for a shifting legal onus of proof (see in particular the italicised portion of Murray J's reasons as reproduced at [67] above). In our view, as explained below, that aspect of Davis v Armstrong was incorrectly decided. It follows, in our respectful opinion, that the primary judge was in error insofar as she held that, the qualifying conditions in s 117(4) being satisfied, the onus of proof shifted to the appellant to prove, on the balance of probabilities, that the speed of the vehicle that he was driving did not exceed the speed limit of 110 km per hour.
At issue is the meaning to be given to s 117(4) of the Road Traffic (Administration) Act insofar as it provides that the authorised person's evidence of the speed at which a vehicle was moving as ascertained by the use of speed measuring equipment:
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. (emphasis added)
A prima facie evidence provision ought, ordinarily, to be distinguished from a provision to the effect that a fact is taken to be established unless the contrary is proved. A prima facie evidence provision has a lesser effect. The author of Cross on Evidence identifies two senses in which the term 'prima facie evidence' is used, namely:[22]
1.Prima facie proof of an issue the burden of proof of which is upon the party giving that evidence and where, in the absence of further evidence,[23] the prima facie proof becomes conclusive proof and the party giving it discharges his or her onus.
2.Where a party's evidence in support of an issue is sufficiently weighty to entitle but not to oblige a trier of fact to decide the issue in that party's favour.
[22] J D Heydon Cross on Evidence (LexisNexis: Online) [1600] - [1605].
[23] The passage in Cross on Evidence refers to 'in the absence of further evidence from the other side' (emphasis added). We have omitted the italicised words deliberately. We acknowledge that Cross on Evidence is reproducing what was stated by Stratford JA in the South African case of Ex parte The Minister of Justice; Re R v Jacobson & Levy [1931] AD 466, 478 - 479. However, in principle it should not matter who has adduced the additional evidence if the additional evidence is such as to displace the proof effected by the prima facie evidence.
The author of Cross on Evidence observes that, when used in a statute, the term 'prima facie evidence' usually bears the meaning in [80.1] above.[24] As so read and construed, a statutory provision providing for particular evidence to have the status of 'prima facie evidence' effects no alteration in the legal onus and standard of proof.[25]
[24] J D Heydon Cross on Evidence (LexisNexis: Online) [1605] fn 4. That statement has received judicial acceptance. See eg: IMC Aviation Solutions Pty Ltd v Altain Khuder LLC [2011] VSCA 248; (2011) 38 VR 303 [46] (Warren CJ); Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 [189] - [190] (McColl JA).
[25] See eg the averment cases of: (1) Chief Executive Offıcer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161 [142]; and (2) Chief Executive Officer of Customs v El Hajie [2005] HCA 35; (2005) 224 CLR 159 [33], [40], [50].
An example is provided by R v Hush; Ex parte Devanny.[26] This was an averment case. The defendant was charged with an offence that he was the publisher of a newspaper which solicited monetary contributions for an unlawful association (the Communist Party of Australia). To establish that the solicitation alleged was made on behalf of the unlawful association, averments were relied on as constituting prima facie proof. The relevant legislation provided that the averments of the prosecutor in the information or indictment 'shall be prima facie evidence of the matter or matters averred'. As well as the averments, the newspaper containing the alleged solicitation was put in evidence.
[26] R v Hush; Ex parte Devanny [1932] HCA 64; (1932) 48 CLR 487.
It was held that the averments and evidence did not establish the offence charged. For present purposes, in identifying the proper construction and operation of the prima facie evidence provision in that case, it suffices to refer to what was said by Dixon J (as his Honour then was):
[T]his provision, which occurs in a carefully drawn section, does not place upon the accused the onus of disproving the facts upon which his guilt depends but, while leaving the prosecutor the onus, initial and final, of establishing the ingredients of the offence beyond reasonable doubt, provides, in effect, that the allegations of the prosecutor shall be sufficient in law to discharge that onus. The averment that the contributions were solicited for the association called the Communist Party must be considered with the text and context of the solicitation itself and with the other material in the case. When it is so considered, so much uncertainty is raised that, in my opinion, a tribunal of fact ought not to be satisfied beyond reasonable doubt that the contributions were solicited for the Communist Party.[27]
[27] R v Hush; Ex parte Devanny (507 - 508).
The meaning and effect of s 117(4) of the Road Traffic (Administration) Act is a question of statutory construction applying the familiar criteria of text, context and purpose. The relevant principles of statutory construction are well established.[28] It is necessary to consider the text, context and purpose of s 117(4) and determine the construction that, according to the established rules of interpretation, serves the relevant statutory purpose. In so doing, a construction that would promote the purpose or object underlying s 117(4) is to be preferred to a construction that would not promote that purpose or object.[29]
[28] See eg Mohammadi v Bethune [2018] WASCA 98 [31] - [36].
[29] Interpretation Act 1984 (WA) s 18.
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.
Two further factors militate against s 117(4) being construed as having any wider operation by providing for a shift in the onus of proof to the accused as was held in Davis v Armstrong. First, it is inconsistent with the aspect of the principle of legality that statutory provisions are not to be construed as abrogating important general law rights in the absence of clear words or a necessary implication to that effect. Ordinarily, absent such statutory alteration, the burden of proving guilt rests on the prosecution from first to last. Second, s 117(4) must be compared with other provisions of the Road Traffic (Administration) Act which do impose a legal onus on an accused. For example, by s 109(1) and s 118 certain matters are to be taken to be proved 'in the absence of proof to the contrary'. When s 117(4) is read and construed in the context of those provisions it ought not be understood in the terms as formulated by the primary judge based on the line of reasoning grounded on Davis v Armstrong.
Accordingly, on its proper construction, the 'prima facie evidence' pursuant to s 117(4) is evidence that is sufficient in law on its own to discharge the prosecution's legal onus of proof beyond reasonable doubt of the fact in issue being the speed at which the vehicle was moving at the relevant time. However, if there is evidence (whether advanced in the prosecution or defence cases) that is inconsistent with the fact to be proved by the prima facie evidence - namely the speed at which the vehicle was moving - the trier of fact must determine on the whole of the evidence whether that fact is proved beyond reasonable doubt. The trier of fact may do so taking into account the prima facie proof effected by the prosecution adducing evidence that satisfies the prima facie evidence provision in s 117(4). It will be a matter for the trier of fact to say, on the whole of the evidence, whether the speed of the accused's vehicle is established beyond reasonable doubt. The trier of fact may, but need not, treat the prima facie proof of the speed at which the vehicle was travelling as establishing that degree of proof.
The practical effect of the provision will be that the accused may have to adduce evidence - either elicited in cross-examination or given directly by the accused or a witness called on his or her behalf. Otherwise, there being no inconsistent evidence, the prima facie evidence adduced by the prosecution becomes conclusive proof. But at all times the legal burden of proof remains with the prosecution.
Such inconsistent evidence may be of the type referred to by Murray J in Davis v Armstrong. For example, it may be evidence that:
1.The speed measuring equipment had not been properly tested.
2.The speed measuring equipment was not correctly calibrated.
3.The speed measuring equipment was not working correctly.
4.The speed measuring equipment had not been operated correctly.
5.The vehicle was not moving at the speed as ascertained by the use of the speed measuring equipment (for example there might be some other available evidence as to the vehicle's speed).
These possibilities are not exhaustive. Section 117(4) does not restrict the nature of the evidence which might be adduced in order to raise reasonable doubt as to the speed at which the accused's vehicle was moving. In a particular case other evidence may suffice to raise reasonable doubt as to the speed at which the accused's vehicle was moving at the time of the use of the speed measuring equipment in relation to the vehicle.
In reaching a conclusion on the proper construction of s 117(4) of the Road Traffic (Administration) Act we have taken into account the circumstance that, following Davis v Armstrong, s 98A(3) of the Road Traffic Act was repealed and in effect re-enacted by s 117(4).
There is a rule of statutory construction known as the 're‑enactment presumption'.[30] In substance, where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already judicially attributed to them.[31] There are three reasons why, in the present case, we would not apply the re-enactment presumption.
[30] See eg Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10; (2015) 254 CLR 489 [15].
[31] Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; (1994) 181 CLR 96, 106.
First, the re-enactment presumption should not lead the court to perpetuate a construction of a statutory provision which it considers to be erroneous.[32] The re-enactment presumption ought not be permitted to prevail over an interpretation otherwise appearing to be correct.[33]
[32] Salvation Army (Vic) Property Trust v Fern Tree Gully Corporation [1952] HCA 4; (1952) 85 CLR 159, 174.
[33] Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574, 594.
Second, re-enactment of words in circumstances not involving a reconsideration of their meaning will seldom, if ever, constitute a Parliamentary approval of a judicial interpretation of those words. So, for example, the re-enactment presumption does not automatically apply to provisions re-enacted in consolidating Acts.[34] The Road Traffic (Administration) Act was introduced to consolidate all administrative type provisions and enforcement powers contained within the existing Road Traffic Act. As the Explanatory Memorandum to the Bill that became the Road Traffic (Administration) Act stated, the Act contains a large number of provisions that have simply been transferred from the current Road Traffic Act.[35] Accordingly, this is an example of the Parliament doing no more than turning its mind to how the law should be arranged - the re-enactment was concerned with the form of the law rather than reconsideration and approval of the prior judicial consideration of s 98A(3) of the Road Traffic Act.
[34] Williams v Dunn's Assignee [1908] HCA 27; (1908) 6 CLR 425, 441; Melbourne Corporation v Barry [1922] HCA 56; (1922) 31 CLR 174, 186 - 188; R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381, 388; Flaherty v Girgis (594).
[35] Explanatory Memorandum to the Road Traffic (Administration) Bill 2007 (WA) p 1.
Third, if applied in the present context, the re-enactment presumption would be inconsistent with the aspect of the principle of legality we have referred to at [86] above.
In terms of the relevant onus and standard of proof, s 117(4) of the Road Traffic (Administration) Act should not be construed and applied in the manner articulated in Davis v Armstrong in relation to s 98A(3) of the Road Traffic Act. Rather, for the reasons we have given, s 117(4) is to be construed and applied in the manner we have described at [85] ‑ [90] above. Importantly, contrary to what was stated by the primary judge, at no time did any onus of proof shift to the appellant to prove anything on the balance of probabilities. The appellant has, in this respect, identified error in the approach of the primary judge in the intermediate appeal.
However, this alone does not mean that the appellant must succeed in his appeal. In terms of ground 3 the further question arises as to whether the primary judge was in error by failing to find that the magistrate erred in law by misapplying the correct onus and standard of proof. This depends on whether there was such an error by the magistrate. We turn then to consider whether there was such an error in law on the part of the magistrate.
Did the magistrate apply the correct onus and standard of proof?
The magistrate's decision has been summarised at [25] - [32] above.
The magistrate referred to and relied on s 117(4) of the Road Traffic (Administration) Act. It was open to her Honour to do so. For the reasons given in [75] above the requirements for the operation of s 117(4)'s 'prima facie evidence' provision were met. However, having referred to and relied on s 117(4), the magistrate did not approach the question of the speed at which the appellant's vehicle was travelling from the perspective that it was for the appellant to prove, on the balance of probabilities, that the speed of the vehicle did not exceed the speed limit. At no time was the magistrate referred to Davis v Armstrong or any of the cases that have followed the reasoning and approach in Davis v Armstrong. Nor did the magistrate herself refer to that line of authority.
To the contrary, while cognisant of the terms of s 117(4), the magistrate approached her task in a manner that was consistent with the construction of s 117(4) that we have reached. Her Honour identified that the central issue was whether the vehicle being driven by the appellant was travelling at the speed as alleged by the prosecution. The magistrate directed herself:
[The appellant's] presumed innocent of the charge unless the prosecution establishes his guilt beyond reasonable doubt, based on the evidence that it provides.
The prosecution has to prove each element of the offence beyond reasonable doubt …
[The appellant] does not have to prove anything. There is [a] prima facie [evidence] provision in the Road Traffic (Administration) Act, which I will come to in a moment, but [the appellant] does not have to prove anything. I need to always turn to the evidence that the prosecution has relied on to establish whether he is guilty or not.[36]
[36] ts 72.
Reading the transcript of the magistrate's decision fairly and as a whole, in assessing the evidence, her Honour approached the question of the legal onus and standard of proof in accordance with her direction. At no time did the magistrate suggest that any legal onus of proof shifted to the appellant. Rather, her Honour referred to the evidence and made various findings.[37] The magistrate stated, correctly, that the appellant gave no evidence about what the speedometer in his vehicle was reading. Her Honour concluded that the appellant provided no material to suggest that he was travelling at a different speed to the 148 km per hour established by the Raptor reading. Accordingly, taking into account s 117(4), the magistrate accepted that the vehicle the appellant was driving was moving at a speed of 148 km per hour. Her Honour found that the prosecution had proved its case beyond reasonable doubt.[38]
[37] ts 72 - 76.
[38] ts 76.
The magistrate did not err in law by misapplying the legal onus and standard of proof. To the contrary, by having regard to the general principles applicable to the proof of a criminal offence, and paying close attention to the terms of s 117(4) of the Road Traffic (Administration) Act, the magistrate approached her task as the trier of fact correctly and in accordance with the proper construction of s 117(4). It follows that, while there was an error in the approach of the primary judge due to her Honour's adherence to the reasoning in Davis v Armstrong, the primary judge did not err by failing to find that the magistrate erred in law by misapplying the correct onus and standard of proof. There was no such misapplication of the onus and standard of proof by the magistrate.
In the circumstances, ground 3 fails. The magistrate did not approach her task on the basis that the burden of proof lay on the appellant. The magistrate, consistently with the proper construction of s 117(4), approached the factual issue of the speed at which the appellant was driving on the basis that the legal onus of proof remained with the prosecution and it was for the prosecution to prove that fact beyond reasonable doubt. The primary judge did not err in law in failing to find an error by the magistrate of the kind asserted by the appellant.
Conclusion and orders
Leave to appeal on grounds 1 and 2 should be refused. Leave to appeal on ground 3 has already been granted. However, ground 3 should be dismissed. It follows that the appeal must be dismissed. We would order that:
1.Leave to appeal on grounds 1 and 2 is refused.
2.The appeal is dismissed.
The parties should be heard on any question concerning costs. Insofar as costs are concerned, while the appeal has been dismissed, the respondent should take into account the general importance of the question of statutory construction raised by ground 3. While the appellant has not been successful in his appeal, the point raised by ground 3 is likely to be of significance in other prosecutions for this kind of offence.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Research Associate to the Honourable Justice Vaughan
5 MAY 2021
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