Waite v Hennah - [2019] WASC 468

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 costs of $205.30.
Mr Waite seeks leave to appeal on nine grounds. Mr Waite's grounds can be summarised as follows:[1]
[1] Appeal notice, filed 3 July 2019.
(a)in grounds 1 and 3, it is argued that:
(i)it was not open to her Honour to find him guilty of exceeding the speed limit (by between 30 and 40 km/h) because the prosecution did not provide him with a calibration certificate for the Raptor RP-1 radar (Raptor) used by the respondent, Senior Constable John Arthur Cameron Hennah, as required by s 117A(4) of the Road Traffic (Administration) Act 2008 (WA); and
(ii)the calibration certificate is required to prove the accuracy of the Raptor and without it the prosecution is unable to prove beyond reasonable doubt that the alleged speed (shown on the Raptor) is accurate;
(b)in ground 2, it is argued that her Honour erred in law, by in effect failing to ensure that it was proved beyond reasonable doubt that the Raptor recorded speed of his vehicle at 148 km/h;
(c)in grounds 4, 5, and 6, it is argued that her Honour erred in fact in not making a finding that the speed detected by the Raptor was accurate;
(d)in ground 7, it is argued that her Honour erred in law, and fact, in finding Senior Constable Hennah to be a reliable and credible witness;
(e)in ground 8 and in part of ground 2, Mr Waite argued that her Honour denied him natural justice and procedural fairness by failing to provide him with a fair trial, in that the magistrate:
(i)treated him with arrogance, rudeness and insensitivity;
(ii)failed to provide him with due assistance (as a self‑represented litigant) to tender the evidence he had prepared which included a statement of events and photographs; and
(iii)allowed the prosecution to tender evidence that was not provided to him (prior to the trial); and
(f)in ground 9, it is argued that her Honour erred in law by imposing a sentence that was manifestly excessive.
The appeal was listed for hearing before the court on 6 November 2019. However, shortly before the date for hearing Mr Waite requested that the court determine the appeal on the papers.[2]
[2] The respondent consented to the court determining the application for leave to appeal and the appeal on the papers.
Leave of the court is required for each ground of appeal. Leave to appeal must not be given on a ground unless the court is satisfied that it has a reasonable prospect of succeeding.[3]
[3] Criminal Appeals Act 2004 (WA) s 9(2).
I am of the opinion that leave to appeal on all grounds should be refused because I am not satisfied that any of the proposed grounds have reasonable prospects of success.

Background

Representation at the trial

The respondent was represented by a police prosecutor and Mr Waite appeared in person.

The issues in dispute at the trial

Prior to the trial commencing, the magistrate explained each of the elements of the offence to Mr Waite that the prosecution was required to prove beyond reasonable doubt in respect of the charge laid against him. These were that he:[4]
(a)was driving a vehicle on a road;
(b)was driving on a road that restricted the speed of vehicles to 110 km/h; and
(c)drove in excess of the speed zone, namely at 146 km/h.
[4] ts 3, 10 June 2019.
Before the prosecution opened its case Mr Waite conceded that he was driving a vehicle on a road that restricted the speed of vehicles to 110 km/h.[5] When Mr Waite gave evidence he conceded that he had driven a vehicle on a road in excess of 110 km/h but he did not concede that he had driven at a speed of 146 km/h.[6]
[5] ts 5, 10 June 2019.
[6] ts 61, 10 June 2019.
Consequently, the only issue in dispute was whether, at the material time, Mr Waite had driven a vehicle at a speed of 146 km/h. This issue raised two questions, namely, whether the Raptor had recorded the speed of the vehicle that Mr Waite was driving, and whether the speed recorded by the Raptor was accurate. These were questions that had to be answered affirmatively by the magistrate, and if each was answered affirmatively her Honour was required to be satisfied beyond reasonable doubt in respect of each.

The documentary, video and audio recordings tendered into evidence at the trial

Senior Constable Hennah and Senior Constable Green both gave evidence that on 22 September 2018 they were conducting a highway patrol on Albany Highway. The officers were conducting their patrol in an unmarked vehicle. At about 10.37 am, Senior Constable Hennah was driving the unmarked police vehicle in a southerly direction in a single lane section of Albany Highway, and Mr Waite was driving on Albany Highway towards the officers' vehicle in a northerly direction.
Immediately prior to the interception of Mr Waite, up until his vehicle was pulled over from the road for speeding, a dash cam video recorded the view of vehicles travelling on Albany Highway from the front view of the officers' vehicle.[7]
[7] Exhibit 2.
Audio recordings were also made by the officers when they spoke to Mr Waite after he stepped out of the vehicle he was driving.[8]
[8] Exhibit 1.
In opening, the prosecution referred to, and later tendered into evidence, without objection from Mr Waite,[9] a copy of the Road Traffic (Speed Measuring Equipment) Notice No 2 2012 made pursuant to s 98A(2) of the Road Traffic Act 1974 (WA). The notice was signed by the then Minister for Transport, Mr T Buswell, which stated:[10]
2.Appeal 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'.
[9] ts 21 ‑ 22, 10 June 2019.
[10] Exhibit 1.
During the course of Senior Constable Hennah's evidence the prosecution tendered into evidence (with the consent of Mr Waite):[11]
(a)a dash cam video depicting the view of Albany Highway from the officers' vehicle as they travelled south (prior to travelling towards Mr Waite's vehicle) and then a view of Mr Waite's vehicle (as it could be seen from the officers' vehicle) as he travelled towards and past the officers' vehicle, together with the view of the officers' vehicle as Senior Constable Hennah executed a U‑turn and intercepted Mr Waite's vehicle; and
(b)two audio files which recorded the conversation the officers had with Mr Waite after he stepped out of his vehicle, and up until he was given an infringement notice by Senior Constable Hennah for speeding, which included a record of what was said by the officers and Mr Waite when he viewed the reading on the Raptor inside the officers' vehicle.
[11] Exhibit 2; ts 25, 10 June 2019, pursuant to s 160(1) of the Road Traffic (Administration) Act a notice published under s 98A(2) of the Road Traffic Act that was in effect immediately before commencement day of the Road Traffic (Administration) Act is, on and from the commencement day, to be taken to be a notice published under s 117(2) of the Road Traffic (Administration) Act.
Mr Waite tendered into evidence (without objection from the prosecution) a copy of a statement made by Ms Rebekah Smith (Mr Waite's partner). In the statement, Ms Smith stated that the car Mr Waite was driving on the day in question is her car. Among other matters, Ms Smith also stated that Mr Waite is a very responsible driver and will only overtake if it is safe to do so and is necessary.[12]

The oral evidence

Senior Constable Hennah's evidence

[12] Exhibit 3.

Senior Constable Hennah gave the following evidence:[13]
[13] ts 20 - 47, 10 June 2019
(a)he was an authorised officer, had been employed by the police force for many years,[14] had carried out a lot of traffic duties, and had considerable experience in visually estimating the speed of vehicles on the road;
[14] The transcript of Senior Constable Hennah's evidence at ts 31 records that he said 13 years, but the transcript of the magistrate's reasons at ts 73 records that he had 30 years' experience as a police officer.
(b) at 6.40 am, on 22 September 2018, he tested the Raptor (for accuracy) before commencing to patrol southbound along Albany Highway;
(c)it was a long weekend. When they commenced the patrol the traffic was medium, there was no rain and visibility was excellent. The radio was on in the officers' vehicle and they were listening to music as they drove and tracked vehicles driving towards them in a northerly direction;
(d)at about 10.37 am, as he 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 that, in his judgement, appeared to be travelling substantially faster than the larger vehicle in the left‑hand lane. When this occurred:
(i)the Raptor locked on the closer vehicle (which was the Kia Carnival, in the lane closest to the police vehicle);
(ii) he activated the Raptor on the Kia Carnival and the Raptor emitted a high‑pitch tone which indicated that the target vehicle was travelling in excess of the speed of the police vehicle (which was at that time travelling at 97 km/h);
(iii)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);
(iv)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);
(v)the Raptor captured a speed of the Kia Carnival of 148 km/h; and
(vii)at the end of the patrol, he tested the Raptor at 3.40 pm and it was found to be correct (accurate);
(e)when the Kia Carnival passed his vehicle he executed a U-turn and intercepted the Kia Carnival;
(f)he spoke to Mr Waite and pointed out to him that he was speeding, and told him where they had tracked him speeding. Mr Waite argued and told him 'that he has to speed to overtake other vehicles because they speed up in those overtaking lane areas';[15]
(g)he showed Mr Waite the radar reading (recording the speed of the Kia Carnival) on the Raptor and informed Mr Waite that he would be issued with an infringement notice; and
(h)he took off 2 km/h from the Raptor reading and wrote out a ticket for driving in excess of a speed limit of 110 km/h, namely, for driving at 146 km/h.
[15] ts 21, 10 June 2019.
When cross-examined:
(a)it was put to Senior Constable Hennah that instead of locking on his 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;[16] and
(b)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. In response, Senior Constable Hennah said he did not know the answer. Mr Waite informed him that the answer was three seconds.[17]

Senior Constable Green's evidence

[16] ts 34, 10 June 2019.

[17] ts 46, 10 June 2019.

Senior Constable Green gave evidence that she was a passenger in the unmarked police vehicle being driven by Senior Constable Hennah on 22 September 2018.
Constable Green's evidence was that, at about 10.37 am, as they were approaching an overtaking lane zone, she could see four or five cars travelling towards their vehicle, there was a break and then three other cars travelled towards their vehicle, two of which were in the left‑hand lane. One of the approaching cars was a gold coloured Kia Carnival that was overtaking the two vehicles.
Senior Constable Green observed that the Kia Carnival appeared to be travelling well in excess of the speed limit; Senior Constable Hennah activated the radar, which returned a speed of 148 km/h. As a result, Senior Constable Hennah executed a U-turn and the emergency lights on the police vehicle were activated. They intercepted the Kia Carnival and spoke to Mr Waite when he alighted the vehicle.[18]
[18] ts 36 - 38, 10 June 2019.
When Senior Constable Green was cross-examined it was put to her that 'Black Eyed Peas' were playing in the police vehicle and blaring loudly in the background when Senior Constable Hennah activated the Raptor. In response, she said she did not recall whether music was playing on the radio in the background, but said that it may have been. However, she denied that the radio would have been blaring.[19]

Mr Waite's evidence

[19] ts 38, 10 June 2019.

Mr Waite 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/h (being slower than the speed limit) so he overtook that vehicle and when doing so he sped up to get around it.[20] He then went on to say that:[21]
(a)he did not deny that he was speeding when he engaged in the overtaking manoeuvre (in the overtaking lane), but he did so as it was necessary because the car he was overtaking had sped up. He 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;
(b)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); and
(c)when he spoke to the officers he told them he had sped up when he needed to get around a vehicle.
[20] ts 61, 10 June 2019.
[21] ts 61 - 62, 10 June 2019.
Immediately after Mr Waite had given his evidence he tendered into evidence the statement made by Ms Smith. The magistrate then asked Mr Waite whether he had any other documents or anything else he wished to rely upon. Mr Waite then sought to tender into evidence screenshots taken of the dash cam video which he said showed the positions of the vehicles. Her Honour informed Mr Waite that if he wished to do so (tender the documents) he could go back into the witness box and resume his evidence. Mr Waite declined and informed the magistrate that he was exhausted, he had had enough, and that he was 'done'.[22]
[22] ts 65 ‑ 66, 10 June 2019.
Her Honour then informed Mr Waite that if he wanted to rely upon the photographs then he needed to be recalled to give evidence about them. Mr Waite again declined.[23]
[23] ts 66, 10 June 2019.
The magistrate then asked Mr Waite if he would like a break, and to resume the hearing that afternoon. Mr Waite said no, and that he wished to proceed.[24]

Mr Waite's submissions at trial

[24] ts 66, 10 June 2019.

When asked by the magistrate what he would like to say as to why he should be found not guilty, Mr Waite said that he still had not obtained a copy of the calibration certificate as proof of the calibration of the Raptor. He then made a submission that such a certificate was required to be provided to him prior to trial.[25]
[25] ts 67, 10 June 2019.
Her Honour asked Mr Waite to identify the provision of the Road Traffic Act which states that the prosecution is obliged to disclose such a document prior to the trial of a charge. In response, Mr Waite stated that he was not sure of what the exact provision was but he had read it in the Road Traffic Act. The magistrate then informed Mr Waite that she could adjourn the matter until the afternoon to enable him to obtain that information, but Mr Waite declined and told the magistrate that he was not prepared to come back in the afternoon because he had children he needed to take home.[26]
[26] ts 68, 10 June 2019.
Mr Waite then attempted to make a submission which went to sentence. Her Honour interrupted him and told him that she first needed to decide if he was driving at the speed alleged by the prosecution and invited him to make further submissions as to this point. Mr Waite then made submissions to the effect that:[27]
(a)the video footage clearly shows that he was not going distinctly faster than the other cars (moving in the same direction and in the vicinity of his vehicle) in their overtaking manoeuvres. In particular, the video footage shows that there were three vehicles in the immediate vicinity that the Raptor could have locked on to;
(b)there will be multiple reasons for a Raptor to give an inaccurate reading. There is multipath signal, double bounce error and vehicle interference error. Consequently, it could not be said without a 'shadow of doubt' that his vehicle was moving at the alleged speed; and
(c)he was overtaking in the interests of road safety and not overtaking in the interest of breaking the law; it is in the interests of road safety to pass a car which was being an annoyance to him (by travelling at less than the speed limit).
[27] to 70, 10 June 2019.

The magistrate's findings

The magistrate made the following findings:[28]
[28] ts 71 - 76, 10 June 2019.
(1)Mr Waite is entitled to plead not guilty to the charge and is presumed innocent of the charge unless the prosecution establishes his guilt beyond reasonable doubt in respect of each element of the offence.
(2)Mr Waite does not have to prove anything. He, however, elected to call evidence. He was not obliged to give evidence, but given that he did, his evidence needs to be considered in the same way that the evidence of the other witnesses is considered. The court must also have regard to the admissions or statements that Mr Waite made out-of-court that were recorded by audio recordings, which Mr Waite did not object to and, in fact, wanted to have played to the court. The audio recordings were not the subject of cross-examination and Mr Waite's evidence was not inconsistent with what he said in those recordings.
(3)Senior Constable Hennah gave untested evidence that he was an authorised person to test and use the Raptor which he used as speed measuring equipment.
(4)Exhibit 1 establishes that the Raptor is authorised equipment for the purposes of the Road Traffic (Administration) Act.
(5)The issue is whether it was Mr Waite's vehicle that was captured by the speed measuring equipment. The prosecution relies on the evidence of the two police witnesses who say that their attention was alerted to Mr Waite's car because of the speed at which it was travelling. However, if that was all the prosecution was relying on, then the prosecution case would clearly fail.
(6)However, the prosecution also relies on the Raptor and the video footage of the incident. Mr Waite accepts 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 shows that Mr Waite was driving (and overtaking) in the right‑hand north bound lane overtaking another vehicle. The issue is whether that was the vehicle that was targeted (tracked) by the Raptor.
(7)Mr Waite raised an issue, in closing, about the calibration of the Raptor. He was given the opportunity to make some enquiries about that but declined to take up that opportunity. He wished for the matter to proceed. In any event, the officer (Senior Constable Hennah) gave evidence that the Raptor was calibrated on 11 May 2018, and that that certification was valid for a year. It (his evidence) was not tested any further, and so this evidence is accepted.
(8)Senior Constable Hennah gave evidence that the police vehicle was travelling at 97 km/h and that he tested his speed (the speed of police vehicle) on the Raptor and it was the same. The Raptor had emitted a high‑pitched steady tone which suggested that it was detecting speed. Senior Constable Hennah (also) gave evidence that Mr Waite's vehicle was closest to his and that was why it was the target for the Raptor.
(9)Both officers said that there was music playing (but not blaring) in the background and that appears to be consistent with the level of background noise in the video footage.
(10)Mr Waite cross-examined (Senior Constable Hennah) at length (and made a submission) about other vehicles in the vicinity being targeted by the Raptor, specifically the vehicle that he was overtaking, and another vehicle that was ahead of the vehicle that he overtook. This argument is rejected, but even if it was the case that another vehicle was the target of the Raptor, it is clear from the video footage that Mr Waite's vehicle was travelling faster than the other cars. This was also the evidence of both of the officers, whose evidence was consistent with the video footage.
(11)Senior Constable Hennah's evidence was that:
(a)although he observed Mr Waite's vehicle in front of the vehicle that he was overtaking for half a second, he was tracking Mr Waite's vehicle for two to three seconds before that; and
(b)if the Raptor was hitting the other vehicle that was being overtaken, it would have given him a different speed and a different result.
Senior Constable Hennah's evidence must be considered in the context of what he says about the radar having a high-pitched steady tone.
(12)It is clear from the video footage that (when Mr Waite alighted from his vehicle) he was shown the speed on the Raptor but at no stage in the course of the conversation that resulted between him and the officers did he say anything about, or take issue with, the speed (that was recorded as the speed of his vehicle on the Raptor). Senior Constable Green told him he was speeding at 148 km/h but he did not, at that stage, (when he was spoken to by the officers immediately after he alighted from his vehicle), state that he was not speeding at that level.
(13)It is significant that Mr Waite said to the officers when he was questioned 'how else was he supposed to go around' (the vehicle he was overtaking) and at no stage did he say anything about not being able to pull back into the lane without speeding.
(14)The video footage clearly suggests (and her Honour was satisfied) that Mr Waite was not required to speed to safely overtake. If he was required to speed (up) whilst overtaking he should have not been overtaking. It is apparent from the location of the car he was overtaking that if he had to speed (by exceeding the speed limit) to overtake he could have slowed down and moved his vehicle back behind that car.
(15)Mr Waite made a submission in closing that the other car (the vehicle that he overtook) was an annoyance and that he needed to protect his 'lawful interest' to get back into the other lane (which appears to arise out of a belief that people should travel at an appropriate speed at all times). This submission should be rejected, as a lawful excuse does not arise to allow a person to speed (exceed the speed limit) whilst overtaking unless there is some emergency, or duress, or another defence that is available at law.
(16)Mr Waite gave no evidence about what the speedometer of his vehicle was reading (during the overtaking manoeuvre) and provided no material (to the court) to suggest he was driving at a different speed (to the speed recorded by the Raptor).
(17)Finally, her Honour had regard to:
(a)s 117 of the Road Traffic (Administration) Act which provides that (the speed recorded on the Raptor) is prima facie evidence of the speed that a vehicle is travelling;
(b)Mr Waite's car was clearly travelling at a greater speed than the other cars in his vicinity; and
(c)the evidence of Senior Constable Hennah; and
found that the Raptor detected (and recorded the speed of) Mr Waite's vehicle. On that basis, her Honour was satisfied that Mr Waite was driving at the speed alleged in the prosecution notice and that the prosecution had proved its case beyond reasonable doubt.
After finding Mr Waite guilty of the charge, her Honour enquired of Mr Waite as to whether he had seen a copy of his traffic record. He responded 'yes'. Her Honour then stated that, in making her decision (to find Mr Waite guilty of the charge) she had had regard to the statement made by Ms Smith and observed that although Mr Waite may be of previous good character that fact did not, in itself, establish that he could not have been driving at the speed alleged by the prosecution on the day in question.
The prosecution informed the magistrate that they did not wish to make any submission as to penalty. The magistrate enquired of the prosecutor as to what the modified penalty was for the charge and the prosecutor informed her Honour that it was $800 and stated that the prosecution were seeking an order of costs of $205.30.
Mr Waite informed the magistrate that he was, at that time, unemployed, having been involved in a workplace incident in February. He had earlier made a submission that, as it was a double demerit point weekend, a conviction would have the effect that he would lose 12 demerit points, which would result in the suspension of his licence to drive a vehicle. Consequently, it was Mr Waite's submission he should only be fined $400 which would attract a loss of only six demerit points. He also made a submission that a licence suspension order should be made pursuant to the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) on grounds that suspension of his licence would seriously hinder the performance of his family or personal duties because he is a family man with children who needs to maintain his licence to perform his family duties and, accordingly, it is absolutely necessary that he retain his licence.
The magistrate informed Mr Waite that the prosecution were seeking costs because the charge was dealt with in court rather than by way of a payment of an infringement notice and the amount that they were seeking was a standard amount. Her Honour then asked Mr Waite if there was any submission that he wanted to put. Mr Waite declined, and the magistrate imposed a fine of $800 and ordered Mr Waite to pay $205.30 in costs.

Grounds 1, 2 and 3 of the appeal

Proposed grounds 1 and 3 and proposed ground 2 in part, rely upon the effect of s 117A and s 117 of the Road Traffic (Administration) Act.
In respect of each of these grounds, Mr Waite puts forward an argument that prior to the prosecution proceeding he should have been served with a copy of a calibration certificate for the Raptor, and in the absence of the provision of such a certificate the prosecution could not, at law, prove that the speed recorded by the Raptor was accurate.
Section 117A, however, has no application to this matter. Section 117A applies to 'speed measuring and recording equipment' but not to 'speed measuring equipment'.
Section 117A(1) 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.
Pursuant to s 117A(4) a certificate 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 or within a shorter period that is agreed by the accused (emphasis added).
An 'image' as described in s 117(7B) is an image of the vehicle on which is recorded the matters referred to in s 117(2)(c) namely, 'as ascertained and recorded by the speed measuring and recording equipment'. The measuring equipment used by Senior Constable Hennah, the Raptor, was not equipment to which s 117A applies as it is not equipment which produced an image of a vehicle.
The Raptor is, however, 'speed measuring equipment' to which s 117(4) of the Road Traffic (Administration) Act applies. Section 117(4) of the Road Traffic (Administration) Act 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.
The definitions in s 117(1) when read with s 117(2) clearly distinguish between 'speed measuring and recording equipment' and 'speed measuring equipment'. These terms are defined in s 117(1) for the purposes of s 117 and s 117A as follows:
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.
For the prosecution to invoke s 117(4) of the Road Traffic (Administration) Act the 'speed measuring equipment' must be used by an 'authorised person'. An authorised person is defined in s 117(1) of the Road Traffic (Administration) Act to mean a police officer, or a person certified by the Commissioner of Police as being competent to use the equipment.
Where speed measuring equipment is used to detect the speed of the vehicle there is no obligation to provide to an accused a calibration certificate. This obligation only arises where speed measuring and recording equipment is used. For the prosecution to adduce prima facie evidence of the speed of a vehicle where speed measuring equipment is used by an authorised officer, the prosecution is able to rely on the presumption in s 117(4) and (5) of the Road Traffic (Administration) Act by tendering into evidence a notice published in the Gazette. 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:[29]
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).
[29] Hands v Baker [2009] WASC 46; (2009) 52 MVR 156 [6]; applied in Maccione v Doughty [2019] WASC 375 [17] (Strk AJ) and Golestani v Watson [2019] WASC 387 [34] (Hall J); the effect of s 98A of the Road Traffic Act is the same as s 117(4) of the Road Traffic (Administration) Act.
In this matter, the prosecution tendered into evidence, without objection from Mr Waite (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 Mr Waite 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.
Consequently, grounds 1 and 3, and ground 2 (insofar as this ground relies upon s 117A and s 117), have no prospects of success.

Grounds 4 and 5

In ground 4, Mr Waite claims, in effect, that her Honour erred in fact by finding that the Raptor reading was accurate, in that:
(a)to obtain an accurate reading the minimal time the Raptor must be locked on to a target vehicle is three seconds; and
(b)it was established that there was only half a second lock on his (Mr Waite's) vehicle.
In ground 5, Mr Waite argues that her Honour erred by not taking into account any factors that could have interfered with the Raptor including operation error, target identification error, and multi path signal effect.
The grounds appear to complain that the magistrate did not make findings in relation to matters that were not before her, and in respect of which she was not asked to make a ruling.
As the respondent to the appeal points out in their written submissions, it may be that a failure to use a particular speed measuring device in accordance with prescribed practices is a potential basis upon which the evidentiary presumption in s 117(4) of the Road Traffic (Administration) Act may be rebutted.[30]
[30] Respondent's outline of submissions, filed 4 October 2019 [26]; Obst v Morris [2008] WASC 156 [64] (Johnson J]; Bond v Hodgson [2014] WASCA 200 [36(p)] (Buss JA).
In his written submissions in support of each of these grounds, Mr Waite refers to two documents which he did not seek to adduce into evidence at the trial. The first is a document titled 'AFP Practical Guide' (on radar speed measuring devices) in support of ground 4, and the second is a document titled 'Kustom Signals Raptor RP-1 Manual Rev 7. (8.1)' in support of ground 5.[31]
[31] Appellant's submissions, filed 6 August 2019 [20], [24].
Whilst Mr Waite did ask Senior Constable Hennah what the Raptor operator's manual states is the required time to lock on to a vehicle to record an accurate speed, when Senior Constable Hennah said that he did not know the answer to the question, Mr Waite said it was three seconds. At that point, the magistrate intervened and said to Mr Waite that if he was going to rely on that (this contention) he needed to provide some material to that effect. Mr Waite then asked whether he could request a copy of the Raptor manual and the prosecutor responded that they were not relying on that (the Raptor manual) as evidence but that the document was freely available on the Internet. The magistrate then informed Mr Waite that he should have obtained that document as the matter had been listed for trial.[32] Despite this, Mr Waite did not seek to put either document before the magistrate. Yet, he now appears to rely on material that is apparently contained within each of the documents to argue that the speed detected by the Raptor should not be relied upon.
[32] ts 45 ‑ 47, 10 June 2019.
Although the court has power to admit additional evidence in an appeal, Mr Waite has made no application to this court to admit additional evidence.
In any event, it appears from the matters that Mr Waite put to Senior Constable Hennah in cross-examination that the documents had been reviewed by Mr Waite prior to the trial before the magistrate. In these circumstances, the documents would be regarded as new evidence and not additional evidence.
The principles the court is required to apply when considering whether to admit new evidence in a criminal appeal were summarised by Pritchard J in CD and EF v Chief Executive Officer, Department for Child Protection and Family Support:[33]
Under the CA Act, an appeal court must decide an appeal on the evidence and material that were before the lower court. However, that requirement does not affect the power of the appeal court to admit additional evidence. Under the CA Act, the Court has a discretion to permit evidence, other than that which was adduced at the trial, to be relied upon.
In Cramphorn v Bailey, Mazza JA observed that:
'The discretion ... is wide and is designed to serve the demands of justice. It is confined only by the subject matter of the legislation and by the requirement that it must be exercised judicially. However, because Parliament conferred an appellate jurisdiction on this court, it is highly unlikely that it intended to abolish the distinction between original and appellate jurisdictions.'
The exercise of the statutory discretion to admit new evidence will be informed (although not necessarily determined) by the principles concerning new and fresh evidence. In the context of a criminal trial, where an appellant seeks to rely on new evidence - that is, evidence which was available at the time of the trial, or could, with reasonable diligence, have been discovered - no miscarriage of justice will arise simply because the new evidence was not adduced. Rather, new evidence will only give rise to a miscarriage of justice if the appellate court is either satisfied that the accused is innocent or concludes that the accused should not have been convicted, and it is not sufficient that the new evidence reveals only a likelihood that the court below would have returned a verdict of not guilty. An appellant thus faces a high hurdle in overturning a finding of guilt based on new evidence.
[33] CD and EF v Chief Executive Officer, Department for Child Protection and Family Support [2017] WASC 126 [117] ‑ [119].

In circumstances where the documents were not put before the court at first instance, and in the absence of the prosecution being able to test the veracity of the assumptions that Mr Waite now seeks to draw from the documents, even if an application to adduce this evidence was made to this court it would be difficult for this court to be satisfied, in the absence of any testing of the assumptions at first instance, that Mr Waite should not have been convicted of the offence.
In his written submissions, in support of these grounds of appeal, Mr Waite contends that Senior Constable Hennah:[34]
(a)admitted that only half a second elapsed between when Mr Waite's vehicle was in front of the white van and when it passed the police vehicle, which is not enough time to get an accurate reading; and
(b)was not reliable in his visual estimates. On the initial speeding infringement it stated that the distance to target was 50 m, after cross-examination it was established it could not have been more than 25 m.
[34] Appellant's submissions, filed 6 August 2019 [21] - [22].
By regard to these contentions, Mr Waite makes a submission that this is not long enough for the Raptor to obtain a three second accurate reading.[35]
[35] Appellant's outline of submissions, filed 6 August 2019 [22].
Even assuming that to obtain an accurate reading it is necessary for the Raptor to be locked on to a vehicle for at least three seconds, it was not Senior Constable Hennah's evidence that the Raptor locked on to Mr Waite's vehicle for only half a second at a distance of less than 25 m from the police vehicle.
Senior Constable Hennah's evidence was that:
(a)at the time the Raptor locked on Mr Waite's vehicle, it was about 50 m away from the police vehicle. He rejected the contention put by Mr Waite in cross-examination that his estimation in the traffic infringement notice was out by 25 m;[36]
(b)he was tracking Mr Waite's vehicle for a considerable amount of time before Mr Waite overtook the other vehicle. He was also tracking the larger white vehicle;[37]
(c)he tracked Mr Waite's vehicle visually and with the Raptor for two to three seconds and part of this time was that it took about one second for Mr Waite's vehicle to pass the (larger) white vehicle and that Mr Waite's vehicle was in front of the other vehicle for about a second;[38] and
(d)the time that elapsed from when Mr Waite's vehicle was in front of the larger white vehicle until his vehicle passed the police vehicle was half a second to a second.[39]
[36] ts 43 ‑ 45, 10 June 2019.
[37] ts 47, 50, 10 June 2019.
[38] ts 47 ‑ 48, 51, 10 June 2019.
[39] ts 54, 10 June 2019.
Mr Waite claims that his vehicle was sandwiched between a blue vehicle in front of the police car on the right and the large white vehicle on the left. Having viewed the video evidence, it is clear that Mr Waite is referring to a small blue vehicle that is driving southbound along Albany Highway in front of the police vehicle. The small blue vehicle is some distance in front of the police vehicle.
Mr Waite claims that his vehicle was in the middle of the blue vehicle and the larger white vehicle that was travelling in the same direction as his vehicle and in these circumstances there is a strong possibility that there was a multipath signal effect (where the radar could bounce off the target, strike another vehicle and bounce off the target a second time before returning to the radar unit) giving an inaccurate reading.
This contention must be rejected. Firstly, there was no evidence before the magistrate as to how incorrect speed readings generated in this way could arise. In any event, the video evidence before the court does not support the submissions made by Mr Waite. Each of the exhibits tendered at the trial are before the court. Having viewed the video footage on a number of occasions, which shows Mr Waite's vehicle and the white vehicle approaching the police vehicle, it is clear that Mr Waite's vehicle:[40]
(a)is in the right-hand lane closest to the double white lines;
(b)can just be seen at 01.40 moving up behind the larger white vehicle that is in the left‑hand lane;
(c)at 01.42 is level with the larger white vehicle; and
(d)at 01.43 has passed the larger white vehicle and has gone from view of the police vehicle just before 01.44.
[40] Exhibit 2.
This video footage is clearly consistent with the evidence given by Senior Constable Hennah, and is inconsistent with the submissions made by Mr Waite. It is also notable that at the time Mr Waite's vehicle becomes clearly visible on the video at 1.41, and almost level with the larger white vehicle in the left‑hand lane (heading northbound), it is not sandwiched between the larger white vehicle and the blue vehicle. At that point in time the blue vehicle is well to the left of the single lane (heading southbound) in front of the police vehicle.
For these reasons, grounds 4 and 5 have no prospects of success.

Ground 6

In ground 6, Mr Waite argues that it can be clearly seen in the video footage that his car is not going distinctly faster than all the other vehicles before it that Senior Constable Hennah stated were not speeding. However, a careful viewing of the video does not lead to this conclusion.
The video shows Mr Waite's vehicle to be moving much faster than the vehicles that he overtook. Consequently, ground 6 has no prospects of success.

Ground 7

In ground 7, Mr Waite contends that Senior Constable Hennah's evidence is unreliable, and in accepting his evidence the magistrate erred in law and in fact.
In the particulars to ground 7, Mr Waite claims that Senior Constable Hennah:
(a)gave inconsistent evidence and changed his story throughout cross-examination on multiple issues;
(b)avoided and bluntly lied about the behaviour of the blue vehicle in front of him when the truth could clearly be seen in the video image; and
(c)was confident in his training, yet failed in risk assessments and put other road users at risk when commencing the U-turn and speeding to intercept Mr Waite's vehicle.
Mr Waite also claims that it was obvious that Senior Constable Hennah was unfamiliar with the knowledge of how to properly operate the Raptor.
For the reasons that I have expressed in respect of grounds 4 and 5, it is clear that the contentions that Mr Waite seeks to make about Senior Constable Hennah's evidence of the observations that he made when tracking Mr Waite's vehicle are not made out on the evidence. When the transcript of all of the evidence is read carefully, together with a review of the video and audio evidence, it is clearly apparent that Senior Constable Hennah's evidence was not inconsistent. Nor did he change his evidence in any material respect. At most, Senior Constable Hennah qualified, in a minor way, some of the statements that he initially made, when providing more detailed explanations of his observations.
The matters raised in [68(b)] (about the movement of the blue vehicle) and [68(c)] (the manoeuvre undertaken by Senior Constable Hennah to intercept Mr Waite's vehicle) are not relevant to the issue the magistrate was required to determine, which was whether Mr Waite was driving in excess of the speed limit. The magistrate properly observed, in this regard, that she was not required to make any finding as to what other cars were doing on the road.[41] Nor was her Honour required to make any findings as to whether the police officers had put other road users at risk by speeding to intercept Mr Waite's vehicle in determining whether Mr Waite was driving in excess of the speed limit.[42]
[41] ts 71, 10 June 2019.
[42] In any event, pursuant to reg 280 of the Road Traffic Code the provisions of the Code do not apply to the driver of an emergency vehicle, defined in reg 3(1) to include a vehicle driven by a police officer that has been used for official duties by police officers if, in the circumstances, the driver is taking reasonable care, and it is reasonable that the provision should not apply in the vehicle is moving and in the case of a motor vehicle it is displaying a blue or red flashing light or sounding an alarm.
As to the operation of the Raptor, Senior Constable Hennah, as a police officer, is an authorised person as defined in s 117(1) and (4) of the Road Traffic (Administration) Act to use the Raptor.
Pursuant to s 117(4) of the Road Traffic (Administration) Act, when the Gazette notice was tendered into evidence, the onus was on Mr Waite to adduce evidence as to why the speed detected by the Raptor should not be accepted by the court. In circumstances where Mr Waite did not seek to provide to the court copies of any relevant provisions of the operator manual for the Raptor, there was no evidence before the magistrate upon which it could be found that Senior Constable Hennah did not operate the Raptor properly.
For these reasons, ground 7 has no prospects of success.

Grounds 2 and 8

Whilst it is not obvious from the way in which ground 2 is drafted, it is clear from the written submissions filed by Mr Waite that he contends the magistrate did not provide him with a fair hearing. This issue is also raised in ground 8 of the appeal.
In ground 8, Mr Waite also contends that the magistrate was biased. Bias by a judicial officer during proceedings may amount to an error of law on the basis of denial of procedural fairness.
The requirement of a court to accord natural justice includes an obligation to accord procedural fairness. The principles of procedural fairness require that a party be given an opportunity to present their case and be heard (the hearing rule).
The requirements of procedural fairness are not fixed or immutable.[43] Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances.[44]
[43] Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [156] (Hayne, Crennan, Kiefel & Bell JJ); Defendi v Szigligeti [2019] WASCA 115 [48].
[44] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ) [48] (McHugh & Gummow JJ); Preston v Minister for Immigration and Multicultural and Indigenous Affairs (No2 ) [2004] FCA 107 [28] (French J); Slaveski v Rotstein & Associates Pty Ltd [2012] VSCA 291 [30] (Maxwell P; Warren CJ agreeing); Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 [51] (Newnes JA; Pullin & Murphy JJA agreeing); Defendi v Szigligeti [2019] WASCA 115 [48] (Murphy, Mitchell & Beech JJA).
The relevant legal principles concerning procedural fairness in criminal matters were recently considered by Jenkins J in Sprlyan v Wyborn:[45]
Procedural fairness requires that an accused person in a criminal trial must be given a reasonable opportunity to appear and present his or her case. What amounts to a reasonable opportunity to present a case depends on the circumstances of the case, including the nature of the jurisdiction, the subject matter, and the statutory provisions governing the power or jurisdiction being exercised.
As a general rule a person will not be afforded procedural fairness if he or she is not given a reasonable opportunity to make relevant submissions, give evidence, and call witnesses in support. However, the opportunity that must be afforded will always be qualified by the requirement that the material and argument sought to be presented must be sufficiently relevant and significant to warrant being received.
The assessment is one of 'practical injustice'. For example, a court may refuse to grant relief based upon a suggested denial of procedural fairness if it may safely be concluded that the completion of the submissions that were cut off would have made no difference to the outcome.
[45] Sprlyan v Wyborn [2019] WASC 227 [160] - [162].
In Gamage v The State of Western Australia, Steytler P summarised the test to be applied when it is alleged that a decision of a judge has been, or might be, actuated by bias:[46]
In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 47, Mason CJ and McHugh J said that the proper test 'is whether fair‑minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case'. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11], Gleeson CJ, and Gaudron, McHugh, Gummow and Hayne JJ said that 'the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide'. It is important to bear in mind that this fair‑minded lay observer is one who should be taken to have informed himself or herself 'on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson [53] (Kirby J); Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 87.
[46] Gamage v The State of Western Australia [2008] WASCA 49 [54] (Wheeler & Pullin JJA agreeing); applied in Sprlyan v Wyborn [2019] WASC 227 [194] (Jenkins J).
In Mr Waite's written submissions, filed in this court, one of his main complaints appears to be that the magistrate did not accept into evidence screenshots of the video (which he describes as photographs in his written submissions) and a statement of events.[47]
[47] Appellant's submissions, filed 6 August 2019 [33].
Firstly, in respect of the screenshots, it is not open in this appeal to complain that the magistrate did not accept the screenshots into evidence when her Honour afforded Mr Waite the opportunity of returning to the witness box to reopen his case and give evidence about the screenshots (which would, in turn, have entitled the prosecutor to cross‑examine Mr Waite about how those screenshots were created, and what those screenshots showed). In circumstances where Mr Waite declined the opportunity to do so, having been offered the opportunity, no breach of procedural fairness can arise, and it is not open to him to now make such a complaint in an appeal against the decision of the magistrate to convict.
Throughout the trial the magistrate explained the proceedings to Mr Waite at every stage and guided him consistently. She acted with patience and afforded Mr Waite every opportunity to ask questions of her about procedure. She assisted him to clarify his questions to the witnesses in cross-examination so that they were more coherent.
Her Honour provided Mr Waite with two opportunities to take advantage of an adjournment so that he could undertake research or make enquiries about some of the issues that he wished to raise. The offers to adjourn were declined by Mr Waite.
The magistrate had regard to the video footage from which the screenshots were taken and engaged with Mr Waite when he gave evidence. She did not permit him to read from a statement (which presumably is the written submission that he now complains he was unable to tender) which was appropriate. In a criminal trial, the rules of evidence must be strictly observed. An accused and witnesses, when present in court, should not give their evidence‑in‑chief simply by reading from a pre-prepared statement.
A thorough and careful reading of the transcript reveals that the magistrate did not treat Mr Waite with arrogance, rudeness or insensitivity as he now contends. To the contrary, the magistrate acted with respect, courtesy and patience at all times.
Mr Waite alleges, in ground 8, that the magistrate allowed the prosecution to tender evidence that was not provided to him (which appears to be a copy of the Gazette notice made by the Minister in 2012 to approve the Raptor as speed measuring equipment for the purpose of invoking the averment in s 117(4) of the Road Traffic (Administration) Act). When the notice was sought to be tendered into evidence by the prosecutor, the magistrate asked Mr Waite whether he was happy (with the tender into evidence of the notice) and whether he had seen a copy of the notice, to which Mr Waite replied 'that's fine, yes'.[48]
[48] ts 21, 10 June 2019.
Where no complaint was made about the tender of the Gazette notice, which is a public document, it is not open in this appeal to raise an objection to the tender of the notice. Justice Hall importantly observed, in this regard, in Able Lott Holdings Pty Ltd v City of Fremantle:[49]
Appellate courts must be on guard against attempts to raise points on appeal that were not taken at the trial, for whatever reason. Sometimes points are not taken for tactical reasons or oversight. What cannot be permitted is for litigants to hold back matters to be raised on appeal in the event of an adverse outcome. Nor can they be permitted to agitate new issues that could readily have been raised at the trial, other than in exceptional circumstances.
[49] Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431 [38].
It is clear from a reading of the transcript that her Honour was conscious of her obligation to ensure a fair trial according to law, and to conduct the trial in accordance with due process, fairly and impartially. Consequently, there is no merit in Mr Waite's allegation that he did not receive a fair trial. He was afforded considerable latitude in conducting his defence. The magistrate respected Mr Waite's position as a self‑represented litigant throughout the trial.
For these reasons, grounds 2 and 8 have no prospects of success.

Ground 9 ‑ allegedly excessive sentence

Manifest excess is a type of implied error. In determining whether a sentence is manifestly excessive the court must view the offence in light of the maximum sentence available, the standards of sentencing customarily imposed, the seriousness of the conduct relative to offences of that type, and the offender's personal circumstances.[50]
[50] Stickells v The State of Western Australia [2018] WASCA 160 [36] (Mazza & Beech JJA).
For the following reasons, I am of the opinion that the sentence for the offence imposed was not manifestly excessive.
The maximum penalty for an offence under the Road Traffic Code for a first offence is 64 penalty units, and for a subsequent offence is 96 penalty units.[51] A penalty unit is equivalent to $50.[52]
[51] Road Traffic Code reg 9(2).
[52] Road Traffic (Administration) Act s 7(b).
Mr Waite's criminal history indicates that he has had no prior convictions for exceeding the speed limit by between 30 and 40km/h. The maximum penalty for the offence was therefore a fine of $3,200 for a first offence. The fine imposed was equivalent to the modified penalty payable on the issue of an infringement for an offence pursuant to reg 11(3) of the Road Traffic Code, being 16 penalty units, or $800.[53]
[53] Road Traffic Code reg 17(1)(d).
The fine imposed on Mr Waite was, therefore, 25% of the maximum sentence, which was well within the discretionary range for offences of this type.
The magistrate did not expressly state where she found Mr Waite's conduct fell on a scale of seriousness of offences of this type.
The offence of speeding was for a relatively short duration, with no aggravating features, and no injuries or accidents were caused. On the other hand, the offence occurred on a highway where the speed limit was 110 km/h, there were other cars on the road, and the speeding was merely for the purpose of overtaking another car.
The respondent concedes that there was nothing in the offending conduct in this matter which aggravated the offence, or suggested that it should be said to be towards the upper end of the scale.
The prosecution informed the magistrate that Mr Waite has a criminal history which relevantly includes a number of driving-related offences. However, he has no other convictions for speeding other than for the offence.

Mr Waite made a submission as to mitigation in respect of penalty at the end of the trial largely related to his need for a driver's licence.
It is apparent that the primary concern raised by Mr Waite, in this ground, is that because the conviction related to a double demerit point weekend it would result in the suspension of his driver's licence following the accrual of 12 demerit points imposed in relation to the offence.
In his written submissions to the court, Mr Waite states that:[54]
(a)he is a family man with three children under six years of age and needs to maintain a licence to perform family responsibilities; and
(b)he was involved in a workplace accident and needs to travel to Albany for regular medical appointments regarding his injuries, and it would be detrimental to his health and well-being if he could not attend these appointments.
[54] Appellant's submissions, filed 6 August 2019, page 10.
For these reasons, Mr Waite claims that her Honour erred in law in imposing a conviction that was excessive in that she disregarded s 27A(1)(a) or (b) of the Fines, Penalties and Infringement Notices Enforcement Act.
However, the magistrate has no power to make a suspension order pursuant to s 27A(1)(a) or (b) of the Fines, Penalties and Infringement Notices Enforcement Act. An application for a suspension order pursuant to s 27A must be made to the Registrar of the Fines Enforcement Registry.
Section 27A(1) provides:
27A.Registrar may suspend enforcement in certain cases of hardship
(1)If an infringement notice has been registered, the alleged offender may request the Registrar ‑
(a)not to make a licence suspension order; or
(b) to cancel a licence suspension order that has been made
in respect of the alleged offender on the grounds that the licence suspension order would or does deprive the alleged offender of ‑
(c)the means of obtaining urgent medical treatment for an illness, disease or disability known to be suffered by the alleged offender or a member of his or her family; or
(d)the principal means of obtaining income with which to pay the modified penalty and enforcement fees,
or on the grounds that the licence suspension order would or does seriously hinder the alleged offender in performing family or personal responsibilities.
The magistrate made no order on 10 June 2019 as to disqualification of Mr Waite's motor vehicle driver's licence or the imposition of any demerit points.
In any event, any demerit point action or disqualification that may follow conviction is action imposed by the Chief Executive Officer of the Department of Transport and not the magistrate,[55] and is not an order made as a result of the conviction. In any event, disqualification after receiving an excess demerit points notice can be avoided by making an election under s 51 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) (unless prevented by s 51(2) from doing so). Therefore, the loss of demerit points is not appealable in these proceedings.
[55] Pursuant to the scheme created by pt 4 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) (RTAD Act) and pt 5 of the Road Traffic (Authorisation to Drive) Regulations 2014 (WA) (RTAD Regulations), demerit point action is taken by the CEO following a conviction (RTAD Act, s 44(1), (3)). Pursuant to RTAD Act s 41 and RTAD Regulations reg 65(3), Road Traffic Code offences are punishable by demerit point action according to the number of points assigned in the Road Traffic Code. The penalty for speeding between 30 ‑ 40 km/h over the speed limit outside a holiday period is 6 demerit points and a modified penalty of 16 penalty units: Road Traffic Code reg 11(3), reg 17.

Conclusion

Leave to appeal on each ground should be refused and the appeal dismissed. I will hear the parties further as to the orders that should be made, including orders as to the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith
20 DECEMBER 2019