Wheaton v Wilson
[2018] TASFC 1
•22 March 2018
[2018] TASFC 1
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Wheaton v Wilson [2018] TASFC 1
PARTIES: WHEATON, Anthony John Jon
v
WILSON, Annette
McKENNA, Peter
FILE NO: 2147/2017
JUDGMENT
APPEALED FROM: Wheaton v Wilson [2017] TASSC 40
DELIVERED ON: 22 March 2018
DELIVERED AT: Hobart
HEARING DATE: 9 March 2018
JUDGMENT OF: Blow CJ, Estcourt and Geason JJ
CATCHWORDS:
Traffic Law – Offences – Evidence – Proof of speed – Evidence of result of operation of radar speed analysing device.
Leonard v Weatherburn A65/1981; Leonard v Newell [1983] Tas R 78; Visser v Miller [1986] Tas R 103, followed.
Aust Dig Traffic Law [1213]
REPRESENTATION:
Counsel:
Appellant: In person
Respondents: S Nicholson, L Pennington
Solicitors:
Respondents: Director of Public Prosecutions
Judgment Number: [2018] TASFC 1
Number of paragraphs: 28
Serial No 1/2018
File No 2147/2017
ANTHONY JOHN JON WHEATON
v ANNETTE WILSON and PETER McKENNA
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
ESTCOURT J
GEASON J
22 March 2018
Order of the Court (9 March 2018)
Appeal dismissed.
Serial No 1/2018
File No 2147/2017
ANTHONY JOHN JON WHEATON
v ANNETTE WILSON and PETER McKENNA
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
22 March 2018
During 2014 the appellant, Mr Wheaton, was charged with two counts of speeding. On 16 May 2016 a magistrate conducted hearings and found both complaints proved. Mr Wheaton sought a review of the magistrate's determinations. On 7 July 2017 Pearce J determined that motion to review, and quashed one speeding conviction but not the other: Wheaton v Wilson [2017] TASSC 40. Mr Wheaton appealed to the Full Court. On 9 March 2018 this Court heard his appeal and dismissed it, saying that reasons for the dismissal would be published at a later date.
I joined in the making of the order dismissing the appeal for the same reasons as those now stated by Estcourt J.
File No 2147/2017
ANTHONY JOHN JON WHEATON v
ANNETTE WILSON AND PETER McKENNA
REASONS FOR JUDGMENT FULL COURT
ESTCOURT J
22 March 2018
Background
The appellant, Anthony John (Jon) Wheaton, has appealed against the order of Pearce J of 7 July 2017 (Wheaton v Wilson [2017] TASSC 40) refusing the appellant's motion to review his conviction and sentence by a magistrate on a charge of speeding contained in complaint number 54147/15.
The appellant's three grounds of appeal can be summarised as ground 1, an assertion that the learned primary judge erred in declining to grant the appellant an adjournment of the hearing of the motion to review to allow the appellant to seek further evidence in the form of operator manuals for speed detection devices; ground 2, an assertion that his Honour should have upheld the motion for the same reason that he did so in respect of another speeding conviction quashed by him on the same motion; and ground 3, an assertion that his Honour should have called for additional evidence as to the accuracy of the particular speed detection device used by police to record the appellant's speed.
For the reasons that follow I am of the view that there is no merit in any of the grounds.
It is convenient to deal with the second ground first, as, if the appellant is able to establish that the learned primary judge erred in reaching the view that it could not be said that no magistrate acting reasonably could have been satisfied of the appellant's guilt beyond reasonable doubt on the basis of the evidence presented by the prosecution, then it is unnecessary for me to go on and consider the appellant's complaints that he should have been granted an adjournment or that the primary judge should have sought additional evidence.
The speeding charges
The appellant appeared before a magistrate, Mr A McKee, in consecutive hearings on 16 May 2016 on two charges of exceeding the speed limit contrary to the Road Rules 2009, r 20. The charges were brought on separate complaints. One complaint alleged that on 17 September 2014 the applicant drove at 71 km/h in a school zone on Wilmot Road in Forth to which, by operation of r 23, a speed limit of 40 km/h applied. The other complaint alleged that on 29 December 2014 the applicant drove at 84 km/h on a length of road to which, by operation of r 21(1), a speed limit of 70 km/h applied. The learned magistrate found the appellant guilty on both complaints.
The appellant sought to review his convictions on both complaints. There was only one motion to review before the learned primary judge, but it challenged both convictions. In substance, the appellant contended on the hearing of the motion that the learned magistrate should not have accepted the evidence of speed determined by use of a radar speed analyser.
The learned primary judge first set out the evidence that was before the magistrate as to the 29 December 2014 charge at [3]-[6] as follows:
"[3] The complaint alleging speeding on 29 December 2014 was heard first. There was only one prosecution witness, Constable Daniel Adams. On that day he was working with another police officer, Constable McKenna, performing static speed checks on Don Road. They were in a vehicle parked facing west on Don Road at the top of the Forth Hill, measuring the speed of traffic travelling east down the hill. A 70 kph speed limit sign at the top of the hill about 600 metres from where he was parked applied to that length of road. A radar speed analyser was fitted to the police vehicle which, when operated, visually displayed a measured speed. The device has a remote control which may be used to lock the display of the measured speed, but a dual display such that it may also show the continuing speed of the car. Constable Adams observed a car come down the hill. Constable Adams saw the radar speed analyser display the speed of the car as 88 kph. Constable Adams said that he saw Constable McKenna use the remote control to lock the speed displayed on the device, which, when locked, was 84 kph. He said that there were no other cars on the road at that time and that the variable display on the device showed a further speed of 81 kph as the car approached.
[4] Constable Adams left the police vehicle, pulled the car over and approached the driver, who was the applicant. The applicant asked to see the display on the radar speed measuring device. However, by the time Constable Adams and the applicant returned to the police vehicle, Constable McKenna had done something which resulted in the locked speed no longer being displayed. Constable Adams told the learned magistrate that he cautioned the applicant and asked why he was speeding, to which he replied that he was slowing down and thought that the speed zone did not change until further down the hill.
[5] Constable McKenna did not give evidence. Constable Adams gave evidence that at the time of the hearing Constable McKenna had left the police force in Tasmania and was living in Western Australia. The applicant did not give or adduce evidence.
[6] Before the learned magistrate the applicant did not dispute that he was the driver. He did not dispute the applicable speed limit. He did not contend that the speed measuring device could not be relied on or that it had not been operated correctly. His contention was that the magistrate could not be satisfied beyond reasonable doubt of the evidence of Constable Adams about what the radar speed analyser displayed. The magistrate rejected the applicant's argument. He accepted the evidence of Constable Adams and found the complaint proved."
The learned primary judge then set out at [7]-[9], the evidence that was before the magistrate as to the 17 September 2014 charge as follows:
"[7] The magistrate then heard the complaint alleging speeding on 17 September 2014. Again, there was only one prosecution witness. Sergeant Shane Flude gave evidence that at 9.05am on that day he conducted speed checks in the school zone on Wilmot Road at Forth. Before doing so he checked the northern and southern ends of the zone to check that the 40 kph school zone speed limit signs were in place and 'illuminated and flashing correctly'. He explained that the flashing of each illuminated sign could be seen from both sides. He parked his vehicle north of the school, facing south, from where he could see that both signs were 'working'. He saw a car travelling north towards him through the school zone and estimated its speed at 70 kph. He then used a radar speed detection device fitted to the dash of the police vehicle to measure the speed of the car at 71 kph. He waved the car over. The applicant was the driver. Sergeant Flude said that he could not remember whether the applicant asked to see the device or whether he showed it to him.
[8] On this occasion the applicant gave evidence. He said that he travelled past the school zone from the south and noticed that although the first sign he passed was flashing front and rear, a 'clear indication that it's a school zone', but when he passed the second sign it was 'out of sync and not working with either of the back illumination to the white light or the flashing amber light'. He said that 'I believe I was travelling at 60 in a 60 kilometre zone because the 40 kilometres per hour sign had switched off or was not operating'. He maintained that it was later than 9.05am, perhaps later that 9.10am. When cross-examined he positively asserted that he was travelling at 60 kph. He asserted that Sergeant Flude had drawn his attention to the speed sign and it was 'not flashing'. He said that 'the sign wasn't working when he apprehended me. I would have slowed down' and 'It was a 60 zone because the sign was either not working or had switched off'.
[9] The learned magistrate preferred the evidence of Sergeant Flude. He accepted Sergeant Flude's evidence that the school zone signs were operating and 'a school zone was applicable'. Before the magistrate there was no evidence that the school zone sign only applied or had effect during limited times in accordance with the Road Rules, r 318(1). Before the magistrate there was a conflict between the evidence of Sergeant Flude and the applicant about whether the school zone sign the applicant drove past was illuminated. However the significance or otherwise of illumination of the sign was not explored or explained. I can see nothing in the Road Rules which makes the effectiveness of the sign conditional on it being illuminated, and there was no evidence of an indication on the sign to that effect. There is no ground of the motion challenging the magistrate's finding that a speed limit of 40 kph applied to the length of road on which the applicant was driving at the relevant time, and no error in that finding is apparent. His Honour found, based on Sergeant Flude's estimate of the speed and the result of the radar speed detection device that the applicant was travelling at 71 kph."
Grounds 1–4 of the notice to review
His Honour then summarised grounds 1-4 of the appellant's grounds of review at [10] as follows:
"[10] These four grounds are conveniently dealt with together. Ground 1 concerns only the 29 December 2014 offence. It contends that there was 'no hard evidence' that an offence had been committed other than the 'say so' of Constable Adams. Ground 2 concerns only the 17 September 2014 offence. In a similar way it contends that there was 'no hard evidence' that an offence had been committed other than the 'say so' of Sergeant Flude. Grounds 3 and 4 apply to both findings. In substance, these two grounds contend that the learned magistrate erred by finding the complaint proved when, in each case, there was no 'irrefutable evidence' of the speed the applicant was travelling in the nature of a photograph or print out of the result of the speed measurement. The submissions made by the applicant in support of grounds 1 and 2 raise the same issue."
His Honour then compendiously stated the legal principles relevant to the grounds of review at [11]:
"[11] The principles to be applied to determination of a motion to review alleging error of this nature are well established. The Justices Act 1959, s 107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did: Wood v Smith [1991] TASSC 12; Phillips v Arnold [2009] TASSC 43, 19 Tas R 21. It is not for this appellate court to determine what evidence should be accepted and what weight should be given to it: Richardson v Shipp [1970] Tas SR 105 at 117. If there was evidence, which if accepted by the learned magistrate, justified the decision to which he came, this Court will not intervene. It is not open to a judge conducting a review under s107 to weigh the evidence and reach his or her own conclusions: Nilsson v McDonald [2009] TASSC 66, 19 Tas R 173 per Blow J (as he then was), with whom Crawford CJ agreed, at [59], citing Richardson v Shipp and Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12 per Cox CJ at [7]."
At [12]-[14] the learned primary judge disposed of grounds 1–4 in relation to each of the two complaints:
"[12] There was evidence from Constable Adams in one case, and Sergeant Flude in the other, that the radar speed detection device was operated, and that the device displayed the resulting speed measurement. The applicant contends that the evidence of the police about what they did and saw should not have been accepted by the magistrate, and that the magistrate could only have been satisfied of the speed of the applicant's vehicle if there had been something like a 'print out' or photograph of the speed shown on the radar detection device. In the case of the 29 December 2014 offence, the applicant placed emphasis on the evidence that he asked Constable Adams to show him the instrument display on the device, but the display no longer appeared because of something Constable McKenna did, and no evidence was adduced from Constable McKenna.
[13] There is no merit in any of these grounds. Each of the learned magistrate's decisions must be considered separately. However, in each case, the applicant has not established that the decision to accept the evidence of the prosecution witness about the result displayed by the radar speed analyser is not one to which the magistrate, as a reasonable man, should have come. The law imposed no obligation on either police officer to show the applicant the speed display on the device. Both gave evidence of what the display showed and thus the speed the device measured. The learned magistrate was able to hear and observe the prosecution witnesses, and in one hearing, the evidence of the applicant. He enjoyed an advantage in the assessment of the credibility and reliability of each witness I do not share. My review of all of the evidence leads me to conclude that it was reasonably open to the magistrate to be satisfied beyond reasonable doubt of the truth of the evidence given by each witness about the result of the speed measurement. He was entitled to accept the evidence of the police witnesses. Once the magistrate accepted the truth of the evidence given by each officer about that issue, no further evidence, or in the applicant's words no further 'hard' or 'irrefutable' evidence, was necessary.
[14] Grounds 1 to 4 of the motion fail."
Conclusion as to grounds 1–4 of the notice to review
In my view the learned primary judge's reasoning to that result is unimpeachable. The threshold for success on a motion such as was before his Honour, is a high one indeed. It simply cannot, in my view, be said that no magistrate acting reasonably could have been satisfied beyond reasonable doubt of the truth of the evidence of the police officers. Indeed, in my view it would have been perverse for the learned magistrate to have reached any other view.
Ground 5 of the notice to review
The learned primary judge then turned to ground 5 of the motion before him which was in the following terms:
"[The magistrate] ought to have properly satisfied himself as to the accuracy of the devices used by both Officers McKenna and Flug [sic] with further Testing Certification of the common Device said to have been utilised in both Matters at a Testing Date subsequent and following the alleged Offences, as the 'Alleged Offences' occurred some eight (8) and eleven (11) months following the last prior testing date of 29 January 2014."
Although that ground only referred to the question of testing, his Honour treated it as putting in issue, for each finding of guilt, the general question of the probative effect of the evidence of the operation of the speed detection device. He then observed that the resolution of the motion depended on whether it was reasonably open to the magistrate to determine the speed of the applicant's vehicle by operation of the radar speed analyser.
His Honour expanded that question at [17]–[22] in the following terms:
"[17] Proof of a speed limit offence by use of a radar device is evidence of a fact in issue given by a scientific or measuring instrument. A series of Tasmanian cases has decided that evidence of the result of the operation of a speed analysing device is to be considered in accordance with the three principles advanced in Professor Wigmore's work, The Science of Judicial Proof, 3rd ed, at 220 and following: Leonard v Newell [1983] Tas R 78 per Green CJ, referring to Leonard v Weatherburn A65/1981; Philpott v Boon [1968] Tas SR 97; Visser v Miller [1986] Tas R 103. The three propositions are:
'AThe type of apparatus purporting to be constructed on scientific principles must be accepted as dependable for the proposed purpose by the profession concerned in that branch of science or its related art. This can be evidenced by qualified expert testimony; or, if notorious, it will be judicially noticed by the judge without evidence.
BThe particular apparatus used by the witness must be one constructed according to an accepted type and must be in good condition for accurate work. This may be evidenced by a qualified expert.
CThe witness using the apparatus as the source of his testimony must be one qualified for its use by training and experience (§220).'
[18] There are some mechanical or scientific instruments which are in such common use and which by general experience are known to be trustworthy such as to make their results acceptable in courts as substantially accurate without endorsement by expert evidence. However, a radar speed analyser has not, to date, been accepted as such a device: Leonard v Weatherburn at 9, Leonard v Newell at 82 and Visser v Miller at 109. In Leonard v Newell Green CJ added that it would 'not be open to a court to take judicial notice of the nature of the device, how it works, or how it should be used'. However, proof of the first two of the Wigmore propositions is facilitated by legislation. The Vehicle and Traffic Act 1999, s 45, empowers the Governor to make regulations for the purposes of that Act. By s 42A, regulations may provide for the use of devices in the detection of traffic offences, including the use of speed measuring devices in the detection of speeding offences. The Vehicle and Traffic (Offence Detection Device) Regulations 2012, reg 6, provides:
'Radar speed analysers or laser speed analysers may be used to detect speeding offences.'
[19] Regulations 8, 9 and 10, as they applied at the time of the hearing, provided:
'8 Testing requirement: devices used for detection of speeding offences
(1) A device must not be used for the purpose of detecting a speeding offence unless —
(a) it has been tested for accuracy by a tester within the 12 months immediately preceding the date of operation; and
(b) if it has been repaired, altered or adjusted since it was last used for that purpose, it has been retested by a tester; and
(c) it is sealed in such a manner as to prevent interference with its speed-computing circuitry without breaking the seal.
(2) For subregulation (1)(b), a device is not to be taken as having been repaired, altered or adjusted unless the repair, alteration or adjustment required the seal of the device to be broken.
9 Proof of testing
In any proceedings for an offence —
(a) it is not necessary to prove the testing of a device other than the testing last preceding the date on which the offence is alleged to have been committed; and
(b) evidence that a device operated for the purposes of these regulations bears a number corresponding to the number of a device referred to in a certificate in accordance with Form 1, 2 or 3 is evidence and, in the absence of evidence to the contrary, proof that the first-mentioned device is identical to the one referred to in the certificate.
10 Test certificates
(1) In any proceedings, a certificate in accordance with Form 1, 2 or 3 is evidence and, in the absence of evidence to the contrary, proof of the matters set out in the certificate.
(2) A tester is taken to be a person having the prescribed qualifications under section 56E(2)(d) of the Act.'
[20] Regulation 10 provides that a certificate purporting to be signed by a tester is evidence and, in the absence of evidence to the contrary, proof of the matters set out in the certificate. It so happened that the same device was used by both Constable Adams and Sergeant Flude. In each hearing the prosecutor tendered a certificate under the Vehicle and Traffic (Offence Detection Devices) Regulations, reg 10, which certified:
'This is to certify, in respect of the radar speed analyser bearing serial number … BEN713001038 that-
1 On 22nd January, 2014 the radar speed analyser was tested, and the speed computing circuitry was sealed by Professor Michael Davis, a tester, of School of Engineering, University of Tasmania, a testing authority;
2 At the time of testing, the radar speed analyser was capable of accurately determining the speed at which a vehicle travels within a limit of error not exceeding 2 kilometres per hour in excess or deficiency in respect of speeds up to 200 kilometres per hour.
3 The radar speed analyser operates on a frequency of 24.150 gigahertz plus or minus 100 megahertz.
Dated: 22 January, 2014.'
[21] The certificate was in the required form and there was no evidence contrary to the matters it set out. By operation of the regulations and the certificate it was open to the magistrate to reasonably conclude that the radar speed analyser may be used to detect speeding offences, and that the device used by the police officers in each case had been tested and was capable of accurately determining the speed of travel of a vehicle within a margin of 2 kph. The certificates proved testing within the period contemplated by reg 8(1)(a), and in the absence of evidence of repair or alteration there was no reason for the magistrate to entertain a doubt that the testing referred to was the last preceding the date on which each offence was committed: Arnold v Beech-Jones [2004] TASSC 27, 40 MVR 343 at [8].
[22] However, in accordance with the third principle stated by Wigmore, it remained for the prosecution to prove that the operator was qualified by training and experience to operate the radar device and that it was operated in accordance with that training and experience. Before the magistrate, the issue was not addressed either by the police prosecutor or the applicant, and the magistrate made no specific findings about it."
No complaint is made by the appellant as to the learned primary judge's analysis. In my view his Honour's reasoning is, with respect, impeccable.
His Honour then went on at [23]–[24] to consider the critical issue in relation to 29 December 2014 as follows:
"[23] I will first address the evidence concerning the 29 December 2014 charge. There was no evidence of the applicant's speed other than the evidence of the result of the use of the radar speed analyser. Constable Adams did not give any evidence that he estimated the speed of the applicant's vehicle. The applicant did not give evidence. Constable Adams told the magistrate that he had been a police officer for eight years. He had been in the Western Traffic Division for a 'couple of weeks' on secondment. When cross-examined he said that his primary role while on secondment was to 'target speeding zones' but that he had also done such work while performing general policing duties. He stated that the on-board radar device is on top of the dashboard, and it 'shoots out radar and bounces off the vehicle, sends it back to us and displays the speed'. Constable Adams said that normally he or his partner used the remote control for the device to try to lock the device display at the highest speed, and that the display locks instantaneously. Constable Adams stated that he determines what the radar picks up, whether traffic going away or coming towards him, and whether it is moving traffic, although his evidence suggested that it was Constable McKenna who operated the device and the remote control on this occasion.
[24] It was not necessary to establish that Constable Adams was an expert in the scientific intricacies of the instrument: Visser v Miller at 110 [14]. However there was no evidence that either Constable Adams or Constable McKenna had received any training in the use of the device, either by undertaking a course of instruction at the police academy, or elsewhere, or from other officers, or by reading an instruction manual for the device. Beyond the evidence already referred to there was no evidence of Constable Adams' experience in the use of the device. Consequently, there was no evidence to enable the magistrate to determine whether the manner of operation of the device on this occasion, although the evidence of its operation was sparse, accorded with how it would be operated by a person qualified by training and experience to do so. The only comment or finding made by the learned magistrate about the training and experience of Constable Adams was a comment made while determining an objection: 'Constable Adams, he's a competent officer, from what I've heard. Been in traffic for a period.' Although the applicant did not squarely challenge the training and experience of Constable Adams in operation of the device, or raise the issue with the magistrate, he was unrepresented. It was for the prosecution to adduce evidence capable of satisfying the magistrate that the operator, whether it was Constable Adams or Constable McKenna, was qualified by training and experience to operate the radar speed analyser, and that it was operated in accordance that training and experience. For the reasons I have given I do not see that there was evidence capable of satisfying the magistrate of those matters in this case. Error is established. The motion, as it applies to this charge, should be allowed."
The appellant does not, of course, complain of that conclusion, but asserts that the learned primary judge should have reached the same conclusion in respect of 17 September 2014. His Honour did not do so for the reasons he explained at [25]–[26], as follows:
"[25] I have reached a different conclusion about the 17 September 2014 charge. Sergeant Flude gave evidence that:
• he had been a police officer for 30 years and had been in traffic division for 10 years;
• he had used mobile radar speed analysers frequently over his 'entire career', 'since 1986';
• he 'can't comment as to the technology I use it's simply what's been given to me to use. I found it to be accurate. I've found it to be reliable over the years. I've had no issues with it';
• before using the device he checked to see that it was working;
• as the applicant's vehicle travelled towards him he estimated its speed at around 70 kph and through use of the radar device 'obtained a stable reading of 71 kph';
• when asked how the radar device works, he answered, 'It's called a mobile radar but can be used in static mode, so basically if you travel and set it onto mobile mode it then picks up moving vehicles towards you, otherwise you put it into what's called stationary mode when you're stopped and it works that way';
• the device has 'a display screen which is positioned on the dash of the vehicle, your vehicle speed if you are moving is displayed on the right, the opposing vehicle's on the left, when you lock a speed on it transfers into an inner display and is recorded there';
• at the relevant time 'only the applicant's vehicle was moving in front of him';
• the device is called a mobile radar but it can be used in static mode. There is a display screen positioned on the dash of the vehicle, displaying the speed of the police vehicle, if it is moving, on the right and the speed of the opposing vehicle on the left. He said, 'When you lock a speed on it transfers into an inner display and is recorded there.'
[26] It is first to be noted that the evidence of the applicant's speed was not, in this case, confined to the evidence of the result of the radar speed analyser. The applicant admitted that he was travelling at 60 kph. Sergeant Flude gave evidence that he estimated the speed of the applicant's vehicle at 70 kph. Even taking into account only that evidence, given Sergeant Flude's long experience in the police force and in the traffic division, I am unable to conclude that the magistrate might not, as a reasonable person, have come to the conclusion as to the applicant's speed which he did. Moreover, I am not satisfied that the magistrate erred by taking account of Sergeant Flude's evidence of his use of the radar speed analyser. I have concluded that it was open to the magistrate, as a reasonable person, to conclude that as a result of the evidence of Sergeant Flude's extensive and lengthy experience in the use of the device, that he was qualified to use it, and that he used it in accordance with his training and experience. Although Sergeant Flude did not give direct evidence about his training it was open to the magistrate to infer that he was trained and experienced, especially when no challenge was made by the applicant during the hearing. The magistrate made no express finding about Sergeant Flude's training and experience. However no ground challenges the adequacy of his reasons. The determinative question is whether there was evidence from which the magistrate could reasonably conclude that the applicant was, at the relevant time, driving at 71 kph. In my view there was. As the motion applies to this charge, I am not satisfied that error is demonstrated."
Conclusion as to ground 2 of the notice of appeal
Once again, having regard to the relevant principles of review in such cases, I am of the view that the learned primary judge's reasoning in relation to ground 5 of the notice to review is unassailable. The two offences, the subject of the motion to review were not identical and his Honour did not err in failing to find similarly in both cases. As a result I have concluded that ground 2 of the notice of appeal fails.
Returning then to the first of the appellant's grounds of appeal, I have reached the view that the learned primary judge did not err in declining the appellant's request for an adjournment.
Conclusion as to ground 1 of the notice of appeal
His Honour's ruling on the appellant's application for an adjournment was in the following terms:
"The applicant, Mr Wheaton, is here because his motion to review decisions of Magistrate McKee concerning two speeding complaints against Mr Wheaton which the magistrate found proved are listed for hearing today, or is listed for hearing today, it's the 4th July 2017. Mr Wheaton has applied for an adjournment on the basis that he has not had time to consider the authorities delivered to him by counsel for the respondent in opposition to the motion. Now Mr Wheaton says that he has been – he was absent from the State and only returned on about the 21st June and in the interim period has not had enough time to read and consider the cases.
He also raises again the issue of steps that he wishes to take to obtain the instruction manuals concerning radar speed analysing devices. That's a matter which has been previously raised with me in an application to add further grounds of appeal. That application was refused on the basis that in the absence of any application for me to exercise the very limited power to permit further evidence on hearings of – hearing of appeals like this then any other material like that is simply irrelevant to my consideration and that position hasn't changed.
This matter has been listed for hearing before, adjournments have been granted to suit the convenience of Mr Wheaton. No proper reason in my view has been given on this occasion to permit a further adjournment. The application for an adjournment is refused."
I apprehend no error in his Honour's exercise of his discretion, and no unfairness to the appellant particularly in the light of the basis upon which the fifth of the appellant's grounds for review was disposed of by the learned judge in relation to the 17 September 2014 charge. Ground 1 of the notice of appeal fails.
Conclusion as to ground 3 of the notice of appeal
As to the appellant's third ground of appeal to this Court, it need only be observed that the learned trial judge could not have been, on any view, under an obligation to himself to call for additional evidence, even assuming he had the power to do so. Ground 3 of the notice of appeal fails.
Disposition of the appeal
On 9 March 2018 this Court heard the appellant's appeal and dismissed it, saying that reasons for the dismissal would be published at a later date.
I joined in the making of the order dismissing the appeal for the reasons I have now stated above.
File No 2147/2017
ANTHONY JOHN JON WHEATON
v ANNETTE WILSON and PETER McKENNA
REASONS FOR JUDGMENT FULL COURT
GEASON J
22 March 2018
For the reasons given by Estcourt J I joined in the order dismissing this appeal.
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