Waugh v Hodgson
[2015] WASC 354
•25 SEPTEMBER 2015
WAUGH -v- HODGSON [2015] WASC 354
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 354 | |
| Case No: | SJA:1043/2015 | 16 SEPTEMBER 2015 | |
| Coram: | BEECH J | 25/09/15 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused on all grounds Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GAVIN BRUCE WAUGH PAUL RICHARD HODGSON |
Catchwords: | Criminal law and procedure Road traffic Speeding Whether reg 11(3) of the Road Traffic Code 2000 (WA) valid Whether prosecution must prove speed caused risk to safety |
Legislation: | Road Traffic Code 2000 (WA), reg 11 |
Case References: | Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 Carr v The State of Western Australia [2007] HCA 47; (2007) 232 CLR 138 Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 350 CLR 503 K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 McEldowney v Ford [1971] AC 632 Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 The Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471 Vanstone v Clark [2005] FCAFC 189; (2005) 147 FCR 299 Victims Compensation Fund Corporation v Brown [2003] HCA 54 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
PAUL RICHARD HODGSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M RIDLEY
File No : PE 95981 of 2014
Catchwords:
Criminal law and procedure - Road traffic - Speeding - Whether reg 11(3) of the Road Traffic Code 2000 (WA) valid - Whether prosecution must prove speed caused risk to safety
Legislation:
Road Traffic Code 2000 (WA), reg 11
Result:
Leave to appeal refused on all grounds
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr C M Beetham
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Carr v The State of Western Australia [2007] HCA 47; (2007) 232 CLR 138
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 350 CLR 503
K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501
Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573
McEldowney v Ford [1971] AC 632
Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529
R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681
The Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471
Vanstone v Clark [2005] FCAFC 189; (2005) 147 FCR 299
Victims Compensation Fund Corporation v Brown [2003] HCA 54
- BEECH J:
Introduction
1 On 6 May 2015, Mr Waugh was convicted in the Magistrates Court of driving a car in excess of the speed limit by driving at 83 km per hour in a 70 km per hour zone. He was fined $150. He appeals against his conviction.
2 For the reasons that follow, none of Mr Waugh's grounds of appeal have any reasonable prospects of success. Leave to appeal must be refused, and the appeal taken to be dismissed.
3 It is necessary to say something about the course of the trial, in order to understand Mr Waugh's grounds of appeal.
4 Before doing so, I will outline the relevant legislative provisions.
Legislation
5 Mr Waugh was convicted of an offence against reg 11(3) of the Road Traffic Code 2000 (WA).
6 Regulation 11 is in the following terms:
(1) A person shall not drive a vehicle at a speed exceeding the default speed limit for that vehicle.
Points and modified penalty: see regulation 17 .
(2) A person shall not drive a vehicle in a built-up area, at a speed exceeding 50 km/h, except within a speed zone in which a higher speed is permitted.
Points and modified penalty: see regulation 17 .
(3) A person shall not drive a vehicle in a speed zone, at a speed exceeding, in kilometres per hour, that indicated by the numerals on the speed limit sign, at the beginning of the speed zone.
Points and modified penalty: see regulation 17 .
(4) A person shall not drive a vehicle in a shared zone, at a speed exceeding 10 km/h.
Points and modified penalty: see regulation 17 .
(5) A person shall not drive a vehicle in a speed limited area, at a speed exceeding, in kilometres per hour, that indicated by the numerals on the 'area speed limit' sign erected on a road leading into that area.
Points and modified penalty: see regulation 17 .
(6) A person shall not drive a vehicle in a school zone -
(a) at a speed exceeding, in kilometres per hour, that indicated by the numerals on; and
(b) during the school zone periods indicated on,
the 'school zone' sign at the beginning of the school zone.
Points and modified penalty: see regulation 17 .
(7) A person shall not drive a vehicle in a pedestrian mall at a speed exceeding 10 km/h.
Points and modified penalty: see regulation 17 .
7 It was and is not in doubt that Mr Waugh drove his vehicle in a speed zone with a stipulated maximum speed of 70 km per hour.
8 Mr Waugh's case at trial and on appeal contends that reg 11(3) is not authorised under the Road Traffic Act 1974 (WA) and so is invalid. Section 111 of the Act provides:
Regulations etc.
(1) The Governor may make regulations for any purpose for which regulations are contemplated or required by this Act and may make all such other regulations as may, in his opinion, be necessary or convenient for giving full effect to the provisions of, and for the due administration of, this Act, for the equipment and use of vehicles and for the regulation of traffic, generally.
(2) Without limiting the generality of subsection (1), the Governor may make regulations -
(a) empowering an authority therein named to -
(i) prohibit, and to authorise and regulate, processions; or
(ii) restrict or prohibit the use of such roads, for such periods, as it may specify; or
(iii) erect, establish or display traffic or road signs, road markings, traffic control signals and similar devices; or
(iiia) authorise any person or body or class of person or body to erect, establish or display traffic or road signs, road markings, traffic control signals and similar devices, or any class or type thereof, in accordance with the instrument of authorisation;
(aa) regulating or prohibiting stock on roads;
(b) relating to the duties, obligations, conduct and behaviour of persons in charge, drivers and passengers of vehicles or of any class of vehicle;
(c) requiring the drivers and passengers of -
(i) motor vehicles; and
(ii) 2-wheeled or 3-wheeled vehicles that are designed to be propelled through a mechanism operated solely by human power; and
(iii) 2-wheeled or 3-wheeled vehicles that are power assisted pedal cycles,
to wear prescribed items of equipment, whether or not the items are items required to be fitted to the vehicles;
[(d)-(g) deleted]
(h) regulating or prohibiting the parking or standing of vehicles;
[(i) deleted]
(j) prescribing matters for or in respect of which fees shall be charged or charges shall be made and prescribing the amounts of such fees or charges;
(k) imposing penalties not exceeding a fine of 64 PU for a first offence, and not exceeding a fine of 96 PU for any subsequent offence, against any regulation made under this section;
[(l), (m) deleted]
(n) defining the previous offences that shall be taken into account in determining whether an offence is a first or subsequent offence for the purpose of the regulations.
[(2a), (2b) deleted]
(2c) The regulations may make it an offence to contravene a condition imposed by or under the regulations, but this subsection does not limit the other consequences that the regulations may attach to a contravention.
(3) The regulations may in respect of any fee or charge (whether prescribed by the Act or by the regulations) provide for -
(a) exemptions from the requirement to pay the fee or charge; or
(b) the fee or charge to be reduced or refunded (in whole or in part); or
(c) the payment of the fee or charge to be deferred.
(4) The regulations may provide that the exemption, reduction, refund or deferral -
(a) only applies in specified circumstances or in respect of specified classes of persons or vehicles; or
(b) is at the discretion of the CEO or a specified person; or
(c) applies subject to specified requirements being satisfied; or
(d) applies subject to conditions -
(i) specified in the regulations; or
(ii) imposed by the CEO or a specified person and specified in a licence or permit.
The trial
9 The charge against Mr Waugh was listed for trial on 21 April 2015. That morning, the magistrate had the matter called without taking a plea from Mr Waugh or formally commencing the trial. Mr Waugh was self-represented. The magistrate made enquiries of Mr Waugh and of the prosecutor in order to ascertain whether the trial of the charge against Mr Waugh could proceed that day.
10 The prosecutor stated that the prosecution had not arranged for witnesses to attend because Mr Waugh had said earlier that he did not dispute that he was the driver of the car or the location in question, and that the evidence of the camera operator was conceded.1
11 Mr Waugh handed to the magistrate a written outline headed 'Why regulation 11(3) is invalid'.2 Mr Waugh said that the magistrate could ignore the first two pages of that document.3
12 The magistrate asked Mr Waugh to confirm that he admitted that he was the driver of the car and that the location was Leach Highway, Shelley as alleged. Mr Waugh said that he admitted those matters.4 When asked to confirm that he did not dispute the speed of 83 km per hour in a 70 km per hour zone, Mr Waugh said that he had no way of disputing it because he had no measuring equipment of his own, but the fact was that he was driving in a safe manner and at a safe speed at the time.5
13 The magistrate adjourned the matter to 2.15 pm to enable her to consider Mr Waugh's written outline to determine whether the matter could be heard that day.6
14 When the matter resumed in the afternoon, the magistrate observed that the matters raised on pages 3 to 5 of Mr Waugh's outline were not really relevant.7 Some of those matters were complaints about the infringement notice and the statement of material facts. The magistrate pointed out that neither the infringement notice or the statement of material facts had any status in the context of the trial, which proceeded on the prosecution notice and the evidence led.
15 The magistrate then summarised the document Mr Waugh had handed up from page 6 onwards. The magistrate said in essence that Mr Waugh had three contentions:
(1) nothing in the Act authorises the making of a regulation specifically setting a maximum speed;
(2) there is no capacity to enforce the regulations because they are technically incompetent, either because they provide no definition of speed or because they give a flawed definition of speed in that the designated speed limits are not subject to identifiable standards and therefore are not open to challenge;
(3) if safety is the primary objective of the regulation controlling speed then the police must prove that the manner of driving was unsafe, and that could not be done in this case.8
16 Mr Waugh agreed with the magistrate's summary. When her Honour asked whether she had missed any points, Mr Waugh replied 'No. I don't think so'.9
17 A little later, the charge was put to Mr Waugh. He entered a plea of not guilty.10
18 Mr Waugh formally admitted that he drove the vehicle in question on Leach Highway in Shelley on 21 January 2014 and that the numerals on the restricted sign at the beginning of the speed zone indicated a speed of 70 km per hour.11 Mr Waugh indicated that he was content for the certification designating Mr Tony Negriski as an authorised person under s 98A of the Act to be tendered. The statement of Mr Allen Singh, a senior constable, was tendered. That statement indicated that the photographic evidence showed a speed of 84 km per hour in a 70 km per hour zone.12 Mr Waugh then made submissions to the magistrate as to why he should not be found guilty of the offence. Mr Waugh did not give evidence.13
19 The magistrate reserved her decision.
The magistrate's reasons
20 The magistrate gave her reasons on 6 May 2015.
21 The magistrate set out the charge against Mr Waugh, and identified the four elements of the offence:
(1) the accused was driving;
(2) the thing being driven was a vehicle;
(3) the place of driving was in a speed zone as defined in reg 3 of the Road Traffic Code; and
(4) the speed of the vehicle driven by the accused exceeded the speed indicated by the numerals on the speed limit sign at the commencement of the speed zone.14
22 The magistrate recorded Mr Waugh's formal admissions under s 32 of the Evidence Act 1906 (WA) that on 21 January 2014, he was driving the vehicle in question on Leach Highway in Shelley in a 70 km per hour zone.15
23 The magistrate accepted the prosecution's evidence that the speed of the vehicle was 84 km per hour.16
24 The magistrate was satisfied that the elements of the offence had been proved beyond reasonable doubt.17
25 The magistrate referred to Mr Waugh's written submissions which, she said, when condensed, raised three issues:
(1) Regulation 11(3) of the Road Traffic Code has no force and effect unless it is made under the Act, and the provisions in the Act for making regulations do not authorise a regulation specifying a maximum speed.
(2) If reg 11(3) is made pursuant to the Act then there is no capacity to enforce it, as it is technically incompetent because designated speed limits are not subject to identifiable standards and therefore not open to challenge.
(3) The primary objective of the regulations which control speed is safety and therefore the prosecution must prove the manner of driving was unsafe in all the circumstances.18
26 The magistrate concluded that reg 11(3) was authorised by s 111 of the Act. Section 111(1) authorises the making of regulations for, among other things, 'the regulation of traffic, generally'. The magistrate concluded that the regulation of traffic includes the application of a standard to the speed at which vehicles can travel on public roads.19
27 Further, s 111(2)(b) authorises the making of regulations relating to the duties, obligations, conduct and behaviour of drivers of vehicles. The magistrate held that this authorises a regulation specifying a maximum speed at which a driver may travel in a vehicle.20
28 The magistrate rejected Mr Waugh's argument that designated speed limits were not subject to identifiable standards. The magistrate summarised the argument as being that:
(1) in order to be enforceable, traffic control signs must be consistent in their application, which is not the case with an arbitrary maximum speed that is assigned indiscriminately; and
(2) given the laws of physics, vehicles of different size and mass cannot justifiably be made subject to a single, arbitrarily-determined maximum speed in the name of safety.21
29 The magistrate rejected Mr Waugh's claim that public statements by the Commissioner of Police and the Minister for Police revealed that vehicle speed was regulated in order to achieve the purpose of road safety. The magistrate found that such statements were not relevant to the interpretation of legislation, including delegated legislation.22
30 The magistrate found that the Act and the Road Traffic Code imposed an identifiable standard applicable to all road users and easily understood by all road users.23
31 Finally, the magistrate rejected Mr Waugh's contention that it is implicit in reg 11(3), read in the context of the Act as a whole, that the prosecution must demonstrate that the safety of road users was put at risk by the driving in question. The magistrate found, in effect, that:
(1) nothing in reg 11(3) requires proof of anything more than the express elements stated in the regulation; and
(2) proof of danger to individual members of the public is not necessary.24
32 The magistrate concluded that she was satisfied beyond reasonable doubt that the elements of the offence were proven and that the regulation was valid and enforceable.25
General observations
33 In this appeal Mr Waugh seeks, in effect, to reagitate the arguments he put to the magistrate. He complains that the magistrate misunderstood his arguments and that those arguments should have been accepted.
34 In my view, the magistrate was right to reject Mr Waugh's arguments, for the reasons that she gave.
35 Mr Waugh's complaints largely reflect a dissatisfaction with policy choices made by the legislature and the executive, including in making the Road Traffic Code. Mr Waugh considers that the stipulation of a single maximum speed applicable to all vehicles, regardless of mass, road and weather conditions and other factors, is unjustifiable, not conducive to the advancement of public safety, and must be seen as nothing more than revenue raising. In my view, the text of the Road Traffic Code makes it plain that the choice has been made to stipulate a maximum speed applicable to all vehicles on certain roads. It is not the court's function to review that policy choice.
36 The task of this court is, and the task of the magistrate was, to construe the regulation, determine whether it is within power, and, if it is, to apply it as construed to the facts as found. When that is done, in my opinion the conclusion is clear. Mr Waugh was rightly convicted of the speeding offence with which he was charged.
37 In essence, Mr Waugh could only succeed on this appeal if he could show that reg 11(3):
(1) was not authorised by the Act; or
(2) required proof of something more than the express elements it contains.
Mr Waugh cannot show either of these things, and so his appeal has no reasonable prospects of success.
38 Many of Mr Waugh's grounds overlap. His grounds are expansively expressed, in effect containing his submissions in support. There is substantial repetition in the material he has filed, and in his oral submissions.
39 I turn to deal with the grounds individually.
Ground 1
40 Ground 1 asserts that the magistrate incorrectly summarised the contents of Mr Waugh's written submissions and consequently distorted and conflated the issues, preventing a competent assessment and leading to error.
41 For a number of reasons, I do not accept that contention.
42 First, the magistrate specifically put to Mr Waugh, for his comment, her summary of Mr Waugh's contentions in his written submissions. Mr Waugh agreed with the magistrate's summary and said that he did not think she had missed any points.26
43 Secondly, and in any event, the magistrate was, in my opinion, correct to reject Mr Waugh's contentions, for the reasons that she gave.
44 Mr Waugh's grounds assert errors by the magistrate in finding that the regulation was validly made, and in construing the regulation. (See, for example, ground 1(a) and 1(c)). Before assessing the validity of the regulation, the court must first construe it.27 Consequently, it is convenient to begin by construing reg 11(3).
45 In short, in my view reg 11(3) means what it says. There is no warrant for reading reg 11(3) as if it were qualified in any way, including by a need to prove a risk to safety arising from the speed at which a vehicle was travelling.
46 Mr Waugh submits that reg 11(3) must be read as being somehow qualified by considerations of safety and risk to others. In oral submissions, he acknowledged the difficulty of formulating with any precision the words he sought to imply in reg 11(3).28 That in itself presents an obstacle to the implication sought by Mr Waugh.
47 Mr Waugh contends that, given the language of the provisions of the Act, especially s 59 to s 62, reg 11(3) should be construed as requiring the prosecution to demonstrate that the speed at which the car was travelling was, in the circumstances, unsafe.29 In oral submissions, Mr Waugh proposed that reg 11(3) be read as impliedly containing additional words along the lines 'so as to be reckless, dangerous or careless driving, or so as to cause harm'.30 In my view, the magistrate was correct to reject these contentions, for the reasons which she gave. The language of reg 11(3), read in its context, is clear and unambiguous; a person who drives at a speed above the speed applicable to the speed zone thereby, and without more, commits an offence.
48 Sections 59 to 62 do not control the proper construction of reg 11. Contrary to Mr Waugh's submissions,31 reg 11 is not intended merely to elucidate s 59 to s 62 of the Act. Each subsection of reg 11 is intended to create a separate offence, independent of the others, and independent of the offences created by the provisions of the Act.
49 Regulation 18 makes it clear that compliance with the speed limit does not preclude a conclusion that a driver drove at a speed that was, having regard to all the circumstances, careless, reckless or dangerous. As a matter of proper construction the converse is also true. Driving above the speed limit is a distinct offence (under reg 11(3)) and need not entail careless, dangerous or reckless driving. It would make no sense to read a qualification into reg 11(3) that would mean an offence is committed under reg 11(3) only when an offence is also committed under one of s 59 to s 62 of the Act.
50 The elements of an offence under reg 11(3) were correctly identified by the magistrate.
51 In support of ground 1, Mr Waugh contends that the purpose and intent of reg 11(3) is clear, and is revealed by what was said by the Minister on 24 November 1999 in the second reading speech of the Road Traffic Amendment Bill 1999. Mr Waugh quotes the Minister's statement that the message from that legislation is that 'speeding drivers will be caught for putting at risk not only their own lives and the lives of any passengers, but also the lives of other road users'. Mr Waugh submits that unless reg 11(3) includes the additional test of risk to others, enforcement of it would be for the purpose of revenue raising, which is contrary to Parliament's intention.32
52 For a number of reasons, I do not accept these submissions. They attempt to ascribe an overarching purpose to laws prescribing a maximum speed and then use that purpose, in effect, to rewrite the terms of the written law.
53 Statutory construction is a 'text based activity'.33 In Commissioner of Taxation v Consolidated Media Holdings Ltd,34 French CJ, Hayne, Crennan, Bell and Gageler JJ emphasised the centrality of the text in statutory construction:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' [Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue (2009) 239 CLR 27 at 46 [47]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
54 A legislative purpose, discerned from the text and extrinsic materials, assists in choosing between constructions that are open on the language of the statute; it cannot sustain a construction that is not reasonably available as a meaning of the language of the text.35
55 The application of the rules of construction involves the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to rules of construction.36
56 Mr Waugh's argument seeks to impute a purpose, at a high level of generality, to all of the provisions of the Act and the Road Traffic Code. Stated at such high levels of generality, a legislative purpose will often be of little use in construing specific parts of the language of a particular provision.37
57 Further, it is not correct to assert, as Mr Waugh does, that the sole purpose of the Act is safety. The Act has wider purposes. The long title of the Act states that it is an Act 'to make provision in relation to the driving and use of vehicles, the regulation of traffic and for incidental and other purposes'. Thus, one of the purposes of the Act is the regulation of traffic. The breadth of that purpose is not to be constrained by constructing an overarching purpose of safety and then requiring regulation of traffic to advance that purpose.
58 Insofar as Mr Waugh invites attention to statements made in Parliament to assist in the construction of the Act, it must be remembered that extrinsic materials cannot be substituted for the text of the legislation.38 The words of the statute, not non-statutory words seeking to explain them, are of paramount significance.39 Moreover, in this case the Minister's second reading speech related to the Road Traffic Amendment Bill 1999, not to reg 11 of the Road Traffic Code. Consequently, it does not assist in any way in discerning the proper construction of reg 11.
59 By ground 1(b), Mr Waugh contends that:
(a) the purpose of the Act in regulating traffic is to ensure public safety, and thus to avoid the risk of harm;
(b) consequently, a regulation may validly be made under the Act only if the regulation seeks to ensure public safety and to avoid the risk of harm;
(c) as a matter of fundamental physics, speed alone does not determine the risk to safety created by a moving object. For example, account must also be taken of the mass of the object. Broadly speaking, harm is caused by the rapid transfer of the kinetic energy of the vehicle to an object with which it collides, and the reactive force consequently applied to the vehicle. The extent of kinetic energy is affected by the mass of the vehicle, including its passengers. The risks of collision are also affected by other factors including the road, weather and traffic conditions, and the distance between vehicles;
(d) if, as the magistrate considered, in the context of reg 11(3) speed is considered in isolation, reg 11(3) must be seen as having a purpose of revenue raising, not of advancing public safety and, consequently, it is not authorised by the Act.
I do not accept these contentions.
60 As I have already pointed out, the purposes of the Act are not limited to safety. One of the purposes of the Act is the regulation of traffic.
61 Section 111(1) provides a broad power to make regulations for, among other things, 'the regulation of traffic, generally'. The breadth of the language of that provision presents a challenge to Mr Waugh's contention that reg 11(3) is beyond power. I agree with the magistrate that this language encompasses a regulation stipulating a standard for the speed of travel on public roads. In my view, the broad power conferred by s 111(1) would authorise a range of different techniques for prescribing maximum speeds. In my view, any of the following techniques would be within the power conferred by s 111(1):
(a) the stipulation of a maximum speed, applicable to stipulated roads, and applicable to all vehicles travelling on that road;
(b) the stipulation of specific speeds applicable to various classes of vehicle;
(c) the stipulation of maximum speeds at certain times of the day or night.
62 The validity of a provision utilising one of these techniques would not be dependent upon proof that the provision was the best available means of advancing road safety. Any such provision would be within the broad power to make regulations for the regulation of traffic generally.
63 In fact, the Road Traffic Code uses a mixture of the techniques listed above. They can be seen in the different subsections of reg 11.
64 Mr Waugh points to s 60(1a) and s 60(1b) of the Act in support of his contentions. Those subsections provide as follows:
(1a) A person who drives a motor vehicle at a speed of 155 km/h or more commits an offence.
(1b) A person who drives a motor vehicle at a speed exceeding the speed limit set under this Act for that vehicle or the place where the driving occurs by 45 km/h or more commits an offence.
65 Mr Waugh submits that these subsections reveal an intention that driving at a speed that does not contravene them is not an offence. I do not accept that submission. Nothing in these sub-sections supports a conclusion that they are intended to be an exhaustive statement of speeding offences. Moreover, the language of s 60(1b) ('the speed limit set under this Act for … the place where the driving occurs') reflects an intention that speed limits are to be set under the Act, including by regulations made under the Act.
66 Mr Waugh contends40 that the designated speed limits are not subject to identifiable standards and therefore not open to challenge because it is impossible to determine in court whether a particular speed is safe or not safe. In my view, the legislative scheme does not require the court to determine whether a particular speed is or is not safe. Rather, the regulation making power in s 111(1) enables a regulation to be made that stipulates a particular maximum speed, generally applicable to all vehicles. That is what reg 11(3) has done.
67 Mr Waugh's written and oral submissions refer to the absence of evidence to demonstrate that regulating speed as a stand-alone matter is conducive to increased road safety. Mr Waugh's prosecution for speeding did not provide an occasion or forum for leading evidence on that topic. The validity of legislation and regulations does not depend upon proof by evidence that they advance one of their purposes. In any event, as I have said, the purposes of the Act extend beyond road safety, and include the purpose of regulating traffic.
68 For these reasons, in my opinion, ground 1 has no reasonable prospects of success. I would refuse leave to appeal on ground 1.
Ground 2
69 Ground 2 complains of the magistrate's observation that 'the regulation of the speed of vehicles clearly operates for the safety of road users'. Mr Waugh contends that there was no evidence to support that observation and he did not have an opportunity to dispute it, and show its inaccuracy.
70 This ground focuses on one sentence of the magistrate's reasons, in isolation. The observation must be read in its context; the learned magistrate's reasons must be read as a whole. When that is done, it is apparent that the magistrate did not err in rejecting Mr Waugh's contentions.
71 The magistrate made the observation the subject of this ground in the context of considering Mr Waugh's contention that, properly construed, reg 11(3) should be read as requiring the court to be satisfied that the safety of road users was at risk. Her Honour referred to Mr Waugh's erroneous extrapolation from public statements made by the Commissioner of Police and the Minister for Police of the purpose and intent of the Act and the Road Traffic Code. That was the context for her Honour's observation about the apparent purpose of that legislation.
72 For the reasons already given, in my view the magistrate was plainly correct in rejecting Mr Waugh's contention that reg 11(3) was to be construed as requiring proof that the speed of the vehicle put the safety of road users at risk. I would not grant leave to appeal on ground 2.
Ground 3
73 Ground 3 complains that the magistrate erred by not appreciating that the prescription of speed in reg 11(3) as a stand-alone factor was inconsistent with the parliamentary purpose of providing for the safety of road users. For the reasons given in relation to ground 1, ground 3 is without merit. I would refuse leave in respect of ground 3.
Ground 4
74 Ground 4 complains that the magistrate failed to consider the 'technical' definition of 'speed'. In my view, there was no occasion for the magistrate to go beyond the ordinary meaning of the word 'speed', namely rate of movement, in applying reg 11(3) to the offence with which Mr Waugh was charged.
75 In this respect, I repeat what I have already said as to the proper construction of reg 11(3).
76 In support of ground 4, Mr Waugh further contends that the approach taken by the magistrate was contrary to what is and has for more than 50 years been taught in Western Australian high schools. Nothing in Mr Waugh's written or oral submissions persuades me that this is so. In any event, even it if were established, it would not provide a ground to overturn the magistrate's decision.
77 Ground 4 has no reasonable prospects of succeeding. I would refuse leave in relation to ground 4.
Ground 5
78 Ground 5 asserts that the magistrate erred in reversing the 'authoritative structure of law' by giving reg 11(3) priority over the provisions of the Act.
79 The learned magistrate made no such error. Her Honour construed the provisions of the Act and the provisions of the Road Traffic Code, in particular reg 11(3), as a whole. She did not perceive those provisions to be in conflict, and so no question of priority as between the Road Traffic Code and the Act arose. Rather, her Honour construed the Act as authorising reg 11. Further, her Honour construed reg 11 as providing for offences independent of the various offences created by the provisions of the Act. As I have explained, I respectfully agree with all of what the magistrate said in these respects.
80 Ground 5 has no reasonable prospects of succeeding and I would refuse leave in respect of it.
Ground 6
81 Ground 6 complains that the magistrate failed to perform what is said to be the court's role of ensuring that enforcement of regulations is both 'technically competent' and 'compliant with the parliamentary purpose' revealed in parliamentary debate. The parliamentary debates relied on by Mr Waugh were responses by the Minister to questions. What is said by a Minister in that context provides no assistance whatsoever to the proper construction of legislation or regulations made under it. Otherwise, I repeat what I have said in relation to ground 1.
82 I would refuse leave to appeal in respect of ground 6.
Ground 7
83 Ground 7 complains of the magistrate's finding that reg 11(3) is within the regulation making power conferred by s 111(1) to make regulations for the regulation of traffic generally. For the reasons I have already given, I agree with the magistrate's conclusion.
84 There is no merit in ground 7. I would refuse leave to appeal in respect of it.
Ground 8
85 Ground 8 complains that the magistrate wrongly excluded evidence from being given relating to the points raised in paragraphs 1 to 5 of section 3 of Mr Waugh's written submissions before the magistrate.
86 The magistrate did not err in her approach to this section of Mr Waugh's written submissions. This section reflects basic misconceptions about the notion of the common law and about the role and subject matter of evidence and submissions. Among other things, in these submissions Mr Waugh asserted that newspaper articles revealed a significant degree of road rage caused by the use of speed cameras, and a significant degree of public opposition to the use of speed cameras.
87 The magistrate politely and correctly explained to Mr Waugh why these matters were irrelevant.41
88 I would refuse leave in respect of ground 8.
Ground 9
89 Ground 9 complains that the magistrate failed to consider that the respondent's evidence demonstrated Mr Waugh's compliance with s 59 to s 62 of the Act.
90 This ground is misconceived. Mr Waugh was charged with an offence against reg 11(3) of the Road Traffic Code, not an offence against any of s 59 to s 62 of the Act. As I have already explained, reg 11(3) creates an independent offence.
91 I would refuse leave in respect of ground 9.
Ground 10
92 Ground 10 complains that the magistrate wrongly stopped Mr Waugh giving evidence to demonstrate the 'unlawful issuance of the infringement notices', said to be intimately connected to the prosecution of the State's case against him.
93 The learned magistrate did not err in this respect. To the contrary, she carefully and correctly explained the position to Mr Waugh.42 Once Mr Waugh failed to pay in accordance with the infringement notice, the infringement notice was overtaken by the prosecution notice. Thereafter, the infringement notice was immaterial.
94 I would refuse leave in respect of ground 10.
Ground 11
95 Ground 11 complains that the magistrate failed to consider the fact that the respondent did not challenge Mr Waugh's defence arguments. Mr Waugh's written and oral submissions to the magistrate were founded upon a profound misunderstanding of the legal framework in which the magistrate's decision was required to be made. In these circumstances, it is not surprising that, at the trial, the prosecutor did not respond directly and in detail to the numerous and lengthy assertions made by Mr Waugh. Rather, the prosecutor simply pointed out in submissions, correctly, that the evidence established all elements of the offence with which Mr Waugh was charged.
96 I would refuse leave in respect of ground 11.
Ground 12
97 Ground 12 is in the following terms:
The magistrate failed to require the respondent to provide evidence to the appellant that the substance of the prosecution was technically competent and that it complied with purpose and intent of the Law despite that the respondent had agreed to do so at the hearing of October 29 2014 and that the court had confirmed that undertaking but the respondent had subsequently refused. By so failing the magistrate prevented disclosure of unlawful or improper prosecution and hence the occurrence of just trial.
98 This ground is largely incomprehensible. Insofar as I am able to give it any meaning, the ground is without merit. Review of the transcript of the trial reveals that nothing the subject of ground 12 was the subject of complaint by Mr Waugh. In any event, it was not incumbent on the prosecutor to provide evidence that 'the substance of the prosecution was technically competent'. The task of the prosecutor was to adduce evidence to establish the elements of the offence. As the magistrate correctly found, the prosecutor discharged that task.
99 I would refuse leave in respect of ground 12.
Ground 13
100 Ground 13 complains that the magistrate wrongly failed to adjourn the trial after it became clear to her that she did not have sufficient knowledge to competently adjudicate the technicalities of the case.
101 There is no merit in this ground. The magistrate correctly identified the questions for her decision and, in my respectful opinion, correctly answered all of them. In any event, it is not open to a judicial officer to adjourn a proceeding on the ground that the judicial officer does not have sufficient knowledge to competently adjudicate the case.
102 I would refuse leave in respect of ground 13.
Conclusion
103 For these reasons, all of the proposed grounds of appeal are without merit. I would refuse leave to appeal in respect of each of them. Consequently, the appeal must be taken to be dismissed.
1 ts 4, 21 April 2015.
2 ts 6, 21 April 2015.
3 ts 6, see also ts 8, 21 April 2015.
4 ts 8, 21 April 2015.
5 ts 8, 21 April 2015.
6 ts 11, 21 April 2015.
7 ts 11 - 14, 21 April 2015.
8 ts 14 - 16, 21 April 2015.
9 ts 16, 21 April 2015.
10 ts 20, 21 April 2015.
11 ts 20 - 21, 21 April 2015.
12 ts 21, 21 April 2015.
13 ts 23, 21 April 2015.
14 Reasons [2].
15 Reasons [3].
16 Reasons [7].
17 Reasons [8].
18 Reasons [9].
19 Reasons [15].
20 Reasons [17].
21 Reasons [19] - [20].
22 Reasons [23].
23 Reasons [24].
24 Reasons [26] - [29].
25 Reasons [30].
26 ts 14 - 16, 21 April 2015.
27McEldowney v Ford [1971] AC 632, 658 (Lord Diplock); Vanstone v Clark [2005] FCAFC 189; (2005) 147 FCR 299 [103] (Weinberg J).
28 Appeal ts 9.
29 Ground 1(c).
30 Appeal ts 12 - 13.
31 Appeal ts 13.
32 Ground of appeal 1(a).
33Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [4] (French CJ) [47] (Hayne, Heydon, Crennan & Kiefel JJ).
34Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 350 CLR 503 [30].
35Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 113 (McHugh J); R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 [3] - [32] (Spigelman CJ); The Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471 [167] (Martin CJ).
36Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 [44] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
37 See, for example Victims Compensation Fund Corporation v Brown [2003] HCA 54 [33] (Heydon J, McHugh ACJ, Gummow, Kirby & Hayne JJ agreeing); Carr v The State of Western Australia [2007] HCA 47; (2007) 232 CLR 138 [5] - [6] (Gleeson CJ).
38K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 [53] (French CJ).
39Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 [22] (Gleeson CJ, Gummow, Hayne & Heydon JJ), [82] - [84] (Kirby J).
40 Ground 1(b)(iv).
41 ts 12 - 13, 21 April 2015.
42 ts 13 - 14, 21 April 2015.