Wheaton v Wilson - [2018] TASFC 1

[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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Wheaton v Wilson

Details

AGLC: Wheaton v Wilson [2018] TASFC 1
Case: [2018] TASFC 1
Decision Date: 22 March 2018

CaseChat Overview and Summary

In *Wheaton v Wilson*, the parties were the appellant, Mr. Wheaton, and the respondent, the Commissioner of Police. The dispute concerned the admissibility of evidence obtained from a radar speed analysing device used to prove a speeding offence. The matter came before the Full Court of the Supreme Court of Tasmania.

The central legal issue before the Full Court was whether the evidence of the speed recorded by the radar device was admissible in the absence of proof that the device had been calibrated and tested in accordance with specific regulations. The court was required to determine the evidentiary requirements for proving speed in traffic matters when relying on such technological devices.

The Full Court held that the evidence of the speed recorded by the radar device was inadmissible. The court reasoned that for evidence derived from a scientific instrument to be admissible, there must be proof that the instrument was functioning correctly at the time of the alleged offence. This required evidence of proper calibration and testing of the device, as stipulated by relevant regulations. Without such proof, the evidence was considered unreliable and therefore inadmissible.

Consequently, the Full Court allowed the appeal, quashed the conviction, and ordered that the charge be dismissed.

Orders