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Waite v Hennah

Waite v Hennah

Case [2019] WASC 468 20 December 2019

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   WAITE -v- HENNAH [2019] WASC 468
CORAM:   SMITH J
HEARD:   ON THE PAPERS
DELIVERED          :   20 DECEMBER 2019
FILE NO/S:   SJA 1081 of 2019
BETWEEN:   TIMOTHY JOHN WAITE
Appellant
AND
JOHN HENNAH
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE R JOHNSTON
File Number            :   NG 162 of 2019

Catchwords:

Criminal law - Appeal against conviction and sentence - Whether magistrate erred in law and fact - Where convicted and sentenced for speeding - Where alleged that speed measuring equipment not proved to be accurate - Whether appellant was required to be provided with certificate pursuant to s 117A of the Road Traffic (Administration) Act 2008 (WA) ‑ Whether sufficient evidence to determine accuracy of speed measuring equipment

Criminal law - Procedural fairness - Whether appellant received fair hearing

Criminal law - Sentencing - Whether sentence imposed by magistrate manifestly excessive

Legislation:

Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 27A
Road Traffic (Administration) Act 2008 (WA), s 7(b), s 117, s 117A, s 160(1)
Road Traffic Act 1974 (WA), s 98A
Road Traffic Code 2000 (WA), reg 3(1), reg 11(3),

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	No appearance
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	State Solicitor for Western Australia

Case(s) referred to in decision(s):

Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431
Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Bond v Hodgson [2014] WASCA 200
CD and EF v Chief Executive Officer, Department for Child Protection and Family Support [2017] WASC 126
Defendi v Szigligeti [2019] WASCA 115
Gamage v The State of Western Australia [2008] WASCA 49
Golestani v Watson [2019] WASC 387
Hands v Baker [2009] WASC 46; (2009) 52 MVR 156
Maccione v Doughty [2019] WASC 375
Obst v Morris [2008] WASC 156
Preston v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 107
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116
Slaveski v Rotstein & Associates Pty Ltd [2012] VSCA 291
Sprlyan v Wyborn [2019] WASC 227
Stickells v The State of Western Australia [2018] WASCA 160

SMITH J:

The appeal and the result

The appellant, Mr Timothy John Waite, seeks leave to appeal against conviction and sentence for one charge, that on 22 September 2018, at Bannister, he drove a vehicle in excess of the speed limit, namely, 146 km/h within a speed zone of 110 km/h, contrary to reg 11(3) of the Road Traffic Code 2000 (WA).
Mr Waite was convicted of the offence following a trial on 10 June 2019, before her Honour Magistrate Johnston, at the Albany Magistrates Court. After the conviction was entered, Mr Waite was fined $800 and ordered to pay…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Waite v Hennah

Details

AGLC: Waite v Hennah [2019] WASC 468
Case: [2019] WASC 468
Decision Date: 20 DECEMBER 2019

CaseChat Overview and Summary

The case of Waite v Hennah involved an appeal against a conviction and sentence in the Magistrates Court of Western Australia. The appellant, Waite, was convicted of speeding and sought to appeal on the grounds that the magistrate erred in law and fact. The primary issue was whether the magistrate erred in accepting the evidence of the speed measuring equipment without requiring a certificate of accuracy as required by section 117A of the Road Traffic (Administration) Act 2008 (WA). The appellant argued that the lack of such a certificate rendered the evidence insufficient to prove the accuracy of the speed measuring equipment. Additionally, the appellant contended that they did not receive a fair hearing due to procedural errors and that the sentence imposed by the magistrate was manifestly excessive.

The court examined whether the magistrate erred by not requiring a certificate of accuracy for the speed measuring equipment. The court considered the statutory requirements and concluded that the absence of a certificate did not necessarily render the evidence inadmissible if there was sufficient proof of accuracy. The court found that the evidence provided was adequate to support the magistrate's finding on the accuracy of the equipment. Regarding the procedural fairness argument, the court found that the appellant's rights were not compromised and that the hearing was conducted fairly. Lastly, the court assessed the sentencing and concluded that the sentence was within the appropriate range and not manifestly excessive.

As a result of the court's findings, the appeal was dismissed. The court upheld the conviction and the sentence as imposed by the magistrate. The court found no legal or factual errors that warranted interference with the original decision. The final orders were that the appeal be dismissed and that the conviction and sentence remain as determined by the Magistrates Court.

Orders