Williams v Beattie - [2016] WASC 41

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: WILLIAMS -v- BEATTIE [2016] WASC 41

CORAM: MARTINO J

HEARD: 10 FEBRUARY 2016

DELIVERED : 10 FEBRUARY 2016

FILE NO/S: SJA 1074 of 2015

BETWEEN: GARY WILLIAMS
Appellant
AND
PETER BEATTIE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE V EDWARDS
File No  :MC 4046 of 2014

Catchwords:

Criminal law - Error of fact - Whether no substantial miscarriage of justice - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed
Prosecution remitted to the Magistrates Court

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms J E Rhodes

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

Cases referred to in judgment:

Bardsley v The Queen (2004) 29 WAR 338
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
Restifio v Bernstein (1996) 23 MVR 347
Weal v Bottom (1966) 40 ALJR 436

MARTINO J: By a prosecution notice lodged in the Magistrates Court at Mandurah on 27 August 2014 the appellant, Mr Williams, was charged that on 5 May 2014 in the waters of the Mandurah Estuary, north of the Old Mandurah Bridge, he caused a vessel to be navigated at a speed exceeding 5 knots, contrary to the provisions of a notice published in the Government Gazette on 3 December 2013 under s 67 of the Western Australian Marine Act 1982 (WA), contrary to s 67(3) of the Act.
Section 67(1) of the Act provides that the chief executive officer may, by notice published in the Gazette, limit the speed at which vessels may be navigated in any waters specified in the notice. Section 67(3) provides that a person who causes, permits or suffers a vessel to be navigated contrary to a notice published under the section commits an offence. The maximum penalty for the offence is a fine of $500.
On 14 May 2015 Mr Williams was convicted of the charge after trial on that day. He was fined $160 and ordered to pay costs of $1,569.30.
On 22 September 2015 Mr Williams lodged an appeal notice, seeking to appeal against both his conviction and the sentence imposed. The grounds of his appeal are:
1Once stopped by police I asked him what for..speeding he said..I said how fast and he said he did not know.
2Next in the mail I am charged doing over 5 knots but under 8 in a 5 knot zone.
3Next correspondence I received it was stated I was doing between 5 and 10 knots.
4Finally nearly 11 months after the alleged incident I was charged doing 15 knots for l00 metres in a 5 knot zone.
5All this with no proof by way of speed camera or any other means. I can add more by conversation should it be required.
6The Judge had a look at a piece of chart as to where the alleged offence took place..the chart was out of date and it did not worry her as it stated the speed limit was 8 knots and I asked could I draw a sketch on the whiteboard and she denied me.
On 8 December 2015 the Court ordered that Mr Williams' application for an extension of time within which to appeal and his application for leave to appeal be heard at the same time as the appeal.
The prosecutor was represented at the trial by counsel. Mr Williams represented himself.

Evidence

The prosecution tendered a copy of a Government Gazette and of a certificate of delegation. These documents proved that the speed limit in the Mandurah Estuary between the breakwaters of the Indian Ocean entrance and the old Mandurah Bridge was 5 knots.
The prosecution called two witnesses ‑ Senior Constable Ian Davison and Senior Constable David Taylor, both of whom were in the Peel Water Police in May 2014.
Senior Constable Davison had been a police officer since 1992 and, at the time of the trial, had been in the Peel Water Police for two years. In May 2014 he held a Recreational Skipper's Ticket and an International Maritime Certificate of Competency. At the time of the trial he also held a WA Coxswain Certificate.
From approximately the age of 20 he had been in the armed forces, where he operated large powerboats. He had experience on the water from a young age. Most of his experience had been in the leisure sector. He commenced with the Water Police in July 2013. He had previously been attached to the Police Air Wing. When he was in the Air Wing he worked with the Water Police when air craft were being serviced. He spent approximately four or five months working with the Peel Water Police before he joined the unit.
His evidence was that on 5 May 2014 he was on a routine patrol in the Mandurah Estuary with Senior Constable Taylor. Senior Constable Taylor was master of the vessel and was at the vessel's helm. Senior Constable Davison was at the left‑hand side of the wheelhouse, stationed at the vessel's police computer systems.
Their vessel was in Mandurah Bay and was heading north. The police officers intended to enter Comet Bay. As they passed or came level with the entrance to Mary Street boat jetty, Senior Constable Davison observed a Quintrex vessel come out of the Mary Street boat ramp and move into the estuary. The vessel headed north in the direction of Comet Bay. The vessel appeared to have two people on board. It was powered by a single outboard engine. Mr Williams was one of the people on board the vessel.
Senior Constable Davison identified a map of the area. Mr Williams objected to the use of the map because it was out of date. Counsel for the prosecutor acknowledged that the speed limit of 8 knots shown on the map was out of date. Mr Williams said that there were other errors in the map because it did not show a small bay where yachts go from the yacht club and it did not show that the groyne had been extended. Her Honour ruled that if the map was to be referred to only to identify location then she would allow Senior Constable Davison to refer to it.
Senior Constable Davison marked on the map where the police vessel was travelling when he first saw the vessel. The map was tendered into evidence as exhibit 3.
Senior Constable Davison's evidence was that when Mr Williams' vessel moved into the Mandurah Estuary it was approximately 20 m to his left and one or two boat lengths in front of the police vessel. The police vessel was travelling at five knots and Mr Williams' vessel was travelling at the same speed. As the vessels were approximately level with a wooden jetty Senior Constable Davison saw Mr Williams' vessel gain in speed. The engine note increased and the vessel moved up onto the plane and proceeded into the estuary. Senior Constable Davison explained what he meant by the plane:[1]
Boats or hulls of vessels, as they move through the water, work in two different modes. They work in displacement mode, which is quite simply where the weight of the boat pushes the same weight of water out of the way so a four-tonne boat will push four tonnes of water out of the way as it moves. A powerful boat, once it reaches a certain speed, changes its dynamics and it lifts up out of the water so its footprint in the water is extremely small, reducing its friction and thereby allowing it to achieve much greater speeds. Only certain hulls, planing hulls, are capable of doing this and the characteristics of a boat when it is up on a plane is very distinct from that of a boat that isn't and on the whole, madam, vessels tend to move in from displacement mode up onto the plane at approximately 12 knots. Every hull varies, but it's all around about that sort of figure.
[1] ts 9 - 10.
Senior Constable Davison gave evidence that Mr Williams' vessel moved away from the police vessel at a speed that was clearly three times the speed of the police vessel and so he estimated the speed of Mr Williams' vessel at 15 knots.
The police vessel followed Mr Williams' vessel into Comet Bay and the police officers stopped Mr Williams just off Doddi's Beach. Senior Constable Taylor remained at the helm of the police vessel. Senior Constable Davison spoke to Mr Williams. Senior Constable Davison's evidence was that he said to Mr Williams that he had stopped him to have a quick word about the speed that Mr Williams was doing. He asked Mr Williams if he was aware of the speed limit within the channel. Senior Constable Davison said that he could not recall Mr Williams' exact words but that Mr Williams acknowledged the speed, but said that it was stupid or pointless to stop him.
Mr Williams was not prepared to accept that he had committed an offence. Senior Constable Davison gave evidence that Mr Williams said that, 'even if there was four of us',[2] he would still do the same and he tried to drive away. Senior Constable Taylor moved the police vessel and Senior Constable Davison told Mr Williams to stop, which he did. Senior Constable Davison told Mr Williams that if he wasn't prepared to acknowledge what he had been doing and discuss the matter then Senior Constable Davison was left with no option other than to issue an infringement notice. Mr Williams said that was what Senior Constable Davison should do, so he did so.
[2] ts 11.
In cross-examination Senior Constable Davison agreed that he had sent to Mr Williams an infringement notice stating that Mr Williams had committed the offence of excess speed greater than five knots and less than 10 knots. Mr Williams put to Senior Constable Davison that his vessel stopped in the estuary. Senior Constable Davison's evidence was that he had no recollection of Mr Williams' vessel stopping.
Senior Constable Taylor had been in the water police for four years at the time of the trial. At the time of the trial he held a Master 5 Certificate. He held a coxswain's certificate in May 2014.
His evidence was that he was on duty with Senior Constable Davison on 5 May 2014 in the Mandurah Estuary in a police vessel which was fitted with two GPS which indicated speed over the ground. As they were travelling north towards Comet Bay Senior Constable Taylor observed a small white Quintrex boat coming from his left hand side out of the Mary Street Boat ramp. There were two people on board the boat which was also travelling north. The police vessel followed the vessel for approximately 100 metres. Both vessels travelled at five knots.
On the right side of the estuary there is a wooden jetty. As the police vessel reached the wooden jetty Senior Constable Taylor heard the engine revs of the Quintrex boat, which started to speed up. The stern of the vessel dug into the water, which created a larger wake. The vessel's bow rose in the water. As it picked up speed it flattened horizontally with a small, sharp wake, which indicated that the vessel was on the plane.
Senior Constable Taylor explained that when a vessel is up on the plane it creates minimal drag, which happens at around 10 to 12 knots. Senior Constable Taylor estimated that once the vessel got up to its speed it was travelling at 15 knots.
The vessel made its way into Comet Bay and the police vessel followed it. The police vessel caught up with the vessel and caused it to stop.
Senior Constable Taylor's evidence was that he heard the conversation between Senior Constable Davison and Mr Williams. His evidence was that Senior Constable Davison told Mr Williams that the reason why the police officers had stopped him was to talk to him about his speed and asked him if he was aware of the speed limit within the Mandurah Estuary. Mr Williams said that he was aware that the speed limit was five knots. He said that he had, however, accelerated prior to leaving the estuary because it was quiet and there were no other vessels around. Senior Constable Davison said that although Mr Williams might believe it to be pedantic, the speed limit was set for a reason. Mr Williams said that he didn't care that there was a police vessel in front of him and he would do the same 'even if there four of us around him'.[3]
[3] ts 22.
Counsel for the prosecution asked Senior Constable Taylor if Mr Williams had said that there was a police vessel in front of him. Senior Constable Taylor answered, 'No. We were behind him.'
Senior Constable Davison continued to try and talk to Mr Williams and to explain that if he wouldn't accept Senior Constable Davison's advice, then he would have to deal with him in another manner, by issuing an infringement notice.
Senior Constable Taylor then spoke to Mr Williams and confirmed that he was the skipper and the owner of the vessel.
The prosecution closed its case when Senior Constable Taylor completed his evidence.
Mr Williams gave evidence. He said that he had launched his boat at the ramp near the police station. He went to the Mary Street lagoon to pick up his friend John Walker. He then went into the middle of the estuary. He was travelling at 4.8 knots. He saw the police vessel in the channel. It was slightly in front of his vessel. Before he entered Comet Bay Mr Williams stopped his vessel. He stopped because there were dolphins there and his dog likes playing with the dolphins and interacts with them. He stopped for between two to three minutes.
He then headed off steadily. He estimated his speed at eight to 10 knots. I understand that this was Mr Williams' evidence as to his speed once he had reached the waters of Comet Bay.
The police vessel approached him. He asked what the problem was and a police officer said that he had been speeding. Mr Williams asked how fast he was going and the police officer said that he could not really tell Mr Williams. The police officer said that there was a police boat right in front of him. Mr Williams said that he knew that there was and that if there had been four or five police boats there he would have done the same thing, because he did not do anything wrong. After answering some questions Mr Williams put his boat into gear. A police officer asked where he was going. Mr Williams said that he had thought that he had finished. Mr Williams said that the police officer thought that Mr Williams' excuse for speeding was because the river was quiet, but Mr Williams did not need an excuse because he was not speeding. After a brief discussion the police officer said that Mr Williams could go.
Mr Williams called his passenger John David Walker as a witness. Mr Walker boarded the vessel at Mary Street and they headed out to sea. He was at the back of the boat getting gear ready for cray fishing. He noticed the police vessel cruising behind us. Mr Williams was only going slow because dolphins were there and his dog loves dolphins. The dog usually swims with dolphins. On this day they were just going slow so the dog could watch. The next thing was that police were alongside them. The police spoke to Mr Williams before he had entered Comet Bay. Mr Walker heard only parts of Mr Williams' conversation with the police officers. He heard Mr Williams ask what speed he was doing and the police officers could not recall the speed.
In cross examination Mr Walker said that he was not able to see the GPS, but there was no wake or anything to indicate that they were speeding. Mr Walker denied that the vessel had been speeding and said that the police officer who spoke to Mr Williams could not say what speed they were doing.

The Magistrate's Reasons

Her Honour delivered her decision on the day of the trial. Her Honour said that the prosecution had the burden of proving each of the elements of the charge beyond reasonable doubt and that the elements of the charge were that the vessel was in the waters of the Mandurah Estuary, that Mr Williams was either driving the vessel or had caused the vessel to be driven, that in so doing he either drove or caused the vessel to be navigated at a speed exceeding five knots and that the speed limit was gazetted pursuant to s 67 of the Act.
Her Honour said that Mr Williams did not deny that he was, in effect, the skipper of the vessel particularised in the prosecution notice, that he was navigating that vessel in the waters of the Mandurah Estuary on the date particularised in the prosecution notice and that the speed limit for that area was five knots. What Mr Williams did deny, her Honour said, was that he caused the vessel to travel at a speed exceeding five knots. And so, her Honour said, the issue for the court to determine was whether the prosecution had proved beyond reasonable doubt that Mr Williams did cause the vessel to travel at a speed greater than five knots.
Her Honour referred to the evidence from Officers Davison and Taylor and said that each of those officers gave evidence of extensive experience in the operation of marine vessels and their qualifications in marine matters. Her Honour said that both officers gave evidence as to their perception of the speed of Mr Williams' vessel in the Mandurah Estuary.
Her Honour then referred to the legal authorities that had been provided to her by counsel for the prosecutor. Her Honour quoted from Barwick CJ's judgment in Weal v Bottom[4] and from Murray J in Restifio v Bernstein[5].
[4] Weal v Bottom (1966) 40 ALJR 436, 438.
[5] Restifio v Bernstein (1996) 23 MVR 347, 354.
Her Honour then returned to the evidence of Senior Constable Davison and Senior Constable Taylor. Her Honour concluded, on the authorities to which she had referred, that the evidence of the police officers was admissible. Her Honour said that their evidence was based not only on their experience and knowledge but also their observations of Mr Williams' vessel. She said that each of the police officers gave evidence that Mr Williams' vessel was doing about 15 knots. The police officers' vessel was travelling at five knots, as indicated by the two GPS units on the police vessel. She said that they both observed Mr Williams' vessel bow rise up and they both observed the wake at the stern of the vessel. They both said that the vessel then went onto the plane, her Honour said, meaning that it was travelling horizontally. Her honour said that both police officers gave evidence from their knowledge and experience of boats that a vessel usually goes on to the plane at about a speed of 12 knots.
Her Honour then referred to Mr Williams' evidence. Her Honour said that Mr Williams' evidence was that he was travelling at 4.8 knots near the entrance to Comet Bay when he stopped his vessel to allow his dog to swim with some dolphins. Mr Williams denied travelling at any higher speed than 4.8 knots which she said was indicated by his GPS.
Her Honour referred to the evidence of Mr Walker who was on board Mr Williams' vessel and was at the stern preparing crayfishing gear. Mr Walker's evidence was that he could not see the GPS but that at no time before entering Comet Bay was there any wash or wake from the vessel. Mr Walker's evidence was that the vessel was travelling slowly and that the dog was watching the dolphins.
Her Honour referred to the evidence of Senior Constable Davison and Mr Williams of their conversation when Mr Williams' vessel was stopped. Her Honour said that what was said by Mr Williams, on the evidence of Senior Constable Davison, could equally be an admission of speeding or not such an admission. Her Honour decided that she would not have regard to what was said in that conversation in reaching her decision.
Her Honour said that she found that Mr Williams was a rather belligerent person in his manner. Her Honour said that Mr Williams' evidence was at odds, in some respects, with that of Mr Walker. Her Honour pointed to Mr Williams' evidence that he stopped his vessel to enable his dog to swim with the dolphins prior to entering Comet Bay whereas Mr Walker said the vessel was going slow to enable the dog to watch the dolphins. Mr Williams gave evidence that the police vessel was adjacent to and slightly in front of his vessel whereas Mr Walker said the police vessel was travelling behind. Mr Walker's evidence on this point was consistent with that of the police officers.

Her Honour referred to Mr Walker's evidence that Mr Williams' vessel was stopped by the police before entering Comet Bay. Her Honour said that this evidence was contrary to the evidence of Mr Williams and the police officers that Mr Williams had entered Comet Bay when his vessel was stopped.
Her Honour said that the inconsistencies in the evidence of Mr Williams and Mr Walker threw some doubt on Mr Williams' credibility, in particular his evidence that he stopped his vessel to enable his dog to swim with the dolphins. Her Honour said that she did not accept Mr Williams' evidence that his vessel was stopped for two to three minutes. The evidence was contrary to the evidence of Mr Walker and that of the police officers.
Her Honour found that Mr Walker was a 'fairly unreliable' witness and pointed to his evidence that he did not pay much attention to what was going on.
Her Honour found both police officers to be credible in their evidence. She said that, in particular, the evidence of Senior Constable Davison was very clear and detailed. The learned Magistrate accepted the evidence of the police officers as to their observations of the movement of Mr Williams' vessel. She said that she was therefore satisfied beyond reasonable doubt that Mr Williams' vessel was travelling at a speed greater than five knots. Her Honour found that the vessel was travelling at a speed of about 15 knots. Her Honour found the charge proved.

Extension of time to appeal

Section 10(3) of the Criminal Appeals Act 2004 (WA) provides that an appeal cannot be commenced later than 28 days after the date of the decision, unless the Supreme Court orders otherwise. This appeal was lodged over three months outside that 28‑day period.
The time limit specified in s 10(3) must be taken seriously and every effort must be made to comply with it. The granting of an extension of time must not be taken for granted.[6] The discretion to extend the time limited under s 10(3) is wide with the broad question in each case being whether it is in the interests of justice to grant the extension.[7]
[6] Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [12].
[7] Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [13]; Bardsley v The Queen (2004) 29 WAR 338 [108].
Mr Williams did not provide an affidavit explaining the reason for his appeal notice being late. He did provide a statutory declaration made on 20 September 2015 which he spoke to today. In that statutory declaration he said that he went on holidays and forgot about the matter, then he was in correspondence with the Attorney General on 21 July, 26 July and 7 August, the CCC on 20 August, the Ombudsman on 7 August, the Minister for Police and the Police Commissioner on 3 August and 10 August and with the Supreme Court office on 15 September when he finally found out what to do.
Mr Williams is not legally qualified and so I do accept that it would have taken him some time to find out how to challenge the Magistrate's decision. However the fact that Mr Williams went on holiday and forgot about the matter is not a good reason for the delay between 14 May and his correspondence in July.
I will consider whether to grant an extension of time after considering the merits of the proposed appeal.

The grounds of appeal

The first ground of appeal refers to the disputed conversation between Mr Williams and Senior Constable Davison when Mr Williams was stopped by the police officers. The second, third and fourth grounds of appeal refer to the receipt of an infringement notice, correspondence and the receipt of the prosecution notice. The fifth ground of appeal refers to the absence of evidence of a speed camera reading. The sixth ground of appeal addresses the chart that was referred to in the trial and the refusal of the Magistrate to allow Mr Williams to draw on a sketch on a whiteboard.
It appears to me that by his grounds of appeal Mr Williams raises three issues:
1The Magistrate erred in fact in being satisfied beyond reasonable doubt by the evidence of Senior Constable Davison and Senior Constable Taylor that Mr Williams' vessel was travelling at a speed of 15 knots when:
a)there was no evidence of a speed camera reading;
b)the evidence of Mr Williams and of Mr Walker was that the police officer who spoke to Mr Williams told him that he could not say at what speed Mr Williams had been travelling;
c)the evidence of Mr Williams and of Mr Walker was that Mr Williams had not been speeding; and
d)the evidence of Senior Constable Davison that Mr Williams' speed was 15 knots was not consistent with his letter to Mr Williams in which he said that Mr Williams had committed the offence of excess speed greater than five knots and less than 10 knots
2The Magistrate erred by considering the map of the Peel Inlet; and
3The Magistrate did not allow Mr Williams an opportunity to present his case because she refused to allow him to sketch on a white board.

Whether the learned Magistrate was in error in being satisfied beyond reasonable doubt by the evidence of the police officers that Mr Williams' vessel was speeding

Senior Constable Davison and Senior Constable Taylor were experienced police officers with marine qualifications whose experience included the observation of vessels. There is no doubt that their evidence as to the speed of Mr Williams' vessel was admissible.[8]
[8] Restifio v Bernstein (1996) 23 MVR 347.
The fact that there was no speed camera reading did not prevent her Honour from accepting their evidence. Nor did the fact that Senior Constable Davison had written to Mr Williams stating that he had committed the offence of excess speed greater than five knots and less than 10 knots. The letter was not necessarily inconsistent with the evidence of Senior Constable Davison because a speed of approximately 15 knots is a speed approximately 10 knots above the speed limit of five knots.
However the evidence of the police officers that Mr Williams' vessel was travelling at approximately 15 knots in the Mandurah Estuary was contradicted by the evidence of Mr Williams and of Mr Walker.
Mr Williams' evidence was that he did not travel at a speed greater than 5 knots and that his speed was 4.8 knots. Mr Walker did not give evidence as to the speed of the vessel, but he did give evidence that at no time before entering Comet Bay was there any wash or wake from the vessel.
The learned Magistrate rejected their evidence. She did so by reason of inconsistencies in their evidence 'in particular, as to [Mr Williams'] evidence that he stopped his vessel to enable his dog to swim with the dolphins'.[9]
[9] ts 42.
In rejecting Mr Williams' evidence because his evidence that he stopped the vessel to allow his dog to swim with the dolphins was contradicted by the evidence of Mr Walker and that of the police officers the learned Magistrate made an error of fact. Mr Williams did not give evidence that he had stopped his vessel to allow his dog to swim with the dolphins. His evidence was that he stopped his vessel to allow the dog to interact with the dolphins.
Mr Williams has established that the learned Magistrate made an error of fact. The error is a ground of appeal provided for by s 8 of the Criminal Appeals Act. Section 14(2) provides that even if a ground of appeal might be decided in favour of the appellant the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
I have reviewed all of the evidence at the trial. Mr Williams gave evidence that he stopped his vessel. The other witnesses did not give that evidence. In cross examination Senior Constable Davison denied that Mr Williams' vessel stopped. Mr Walker's evidence was that Mr Williams' vessel slowed down so the dog could watch the dolphins. However, as I have said, Mr Williams did not give evidence that the vessel stopped to allow the dog to swim with the dolphins.
As counsel for the respondent today has submitted whether the vessel stopped and whether the dog swam with the dolphins goes to credit only. Those matters do not relate to any element of the charged offence. Counsel for the respondent submitted that the learned Magistrate's error was not material.
I have decided that I cannot be satisfied that no substantial miscarriage of justice resulted from her Honour's error. The error of fact was a reason why the learned Magistrate rejected the evidence of Mr Williams. Her reference to it at ts 42 indicates that she regarded it as a matter of particular significance in deciding to reject Mr Williams' evidence. The issue for her Honour to determine was whether there was a reasonable doubt that Mr Williams' vessel was not travelling at a speed greater than 5 knots. Mr Williams gave evidence that he was not. His evidence was that his speed did not exceed 4.8 knots. If that evidence gave rise to a reasonable doubt as to whether the vessel's speed exceeded 5 knots then the verdict would be not guilty. I cannot be satisfied that the learned Magistrate would not have reached the conclusion that there was a reasonable doubt if she had not made the error about Mr Williams' evidence. Mr Williams has established the ground of appeal that is incorporated in grounds 1 to 5 of his notice of appeal.

Whether the Magistrate erred by considering the map of the Peel Inlet

The map, which was tendered into evidence as exhibit 3 after Senior Constable Davison had marked on it the location and direction of the police vessel, was acknowledged by the prosecutor as not being current. It showed an incorrect speed limit. Mr Williams also submitted that it did not show a small bay and an extension to a groyne. None of these matters prevented Senior Constable Davison being able to refer to the map and it being tendered in evidence as evidence of the location about which he gave evidence. Mr Williams has no reasonable prospect of success on this ground.

Whether the Magistrate did not allow Mr Williams an opportunity to present his case because she refused to allow him to sketch on a white board.

This ground proceeds on a misapprehension of what occurred. The relevant passage is at ts 27 ‑ 28. Mr Williams gave evidence that he did 4.8 knots all the way to a five knot sign. The learned Magistrate asked which sign he meant. Mr Williams said it was not on the map, but pointed to a location on the map. He asked the learned Magistrate if she wanted him to draw it for her. She said it was not necessary and clarified his evidence with him.
The Magistrate did not need Mr Williams to draw on a map as she understood his evidence. There was no denial of an opportunity to present Mr Williams' case. Mr Williams has no reasonable prospect of success on this issue.

The appeal against sentence

Although Mr Williams appeals against his sentence as well as his conviction his grounds of appeal and his argument today make clear that it is his conviction to which his grounds and argument are addressed. He has not established any basis upon which the sentence could be challenged, apart from the challenge to the conviction. That challenge has been successful, for reasons that I have provided.

Conclusion

In the circumstances where I am not satisfied that a substantial miscarriage of justice has not occurred I have decided that I should grant Mr Williams an extension of time to appeal, despite the long delay. As the learned Magistrate has made an error of fact and as I cannot be satisfied that the error did not lead to a substantial miscarriage of justice I conclude that I should grant Mr Williams an extension of time to appeal and leave to appeal on the issues contained in grounds 1 to 5 and that I should allow his appeal.
The orders I make are:
1the appellant have leave to appeal out of time;
2the appellant have leave to appeal on grounds 1 to 5 of his grounds of appeal;
3leave to appeal on ground 6 is refused;
4the appeal be allowed;
5the conviction, sentence and costs order be set aside; and
6the prosecution be remitted to the Magistrate's Court at Mandurah to be determined by a different Magistrate.