Willis v ENDALL
[2011] WASC 45
•25 FEBRUARY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: WILLIS -v- ENDALL [2011] WASC 45
CORAM: EM HEENAN J
HEARD: 8 FEBRUARY 2011
DELIVERED : 25 FEBRUARY 2011
FILE NO/S: SJA 1111 of 2010
MATTER :Criminal Appeals Act 2004 Pt 2
and
Prosecution Notice number 1919 of 2010 in the Magistrates Court of Western Australia at Armadale
BETWEEN: WILLOW BENJAMIN WILLIS
Appellant
AND
RODNEY JAMES ENDALL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE E K LANGDON
File No :AR 1919 of 2010
Catchwords:
Application for leave to appeal - Application for extension of time - Appeal against conviction for speeding - Police radar detection device - Reliability of radar reading - Possibility of interference - Prima facie accuracy of radar device reading - Absence of expert evidence - No reason to doubt reliability of radar scanner
Legislation:
Criminal Appeals Act 2004 (WA), s 10(3), s 9(2)
Road Traffic Act 1974 (WA), s 98A(3)
Road Traffic Code 2000 (WA), s 11(3)
Result:
Extension of time to apply for leave to appeal
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr D E Leigh
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Samuels v The State of Western Australia [2005] WASCA 193
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
EM HEENAN J: This is an application for an extension of time within which to apply for leave to appeal from a conviction in the Magistrates Court at Armadale, an application for leave to appeal and, if leave is granted, the hearing of the appeal.
Background
On 14 March 2009 at about 1.15 pm the appellant, Willow Benjamin Willis, was driving along Watkins Road, Mundijong, when he encountered a marked police car travelling in the opposite direction. Upon seeing Mr Willis' vehicle, the officers in the police car activated the radar fitted to their dashboard, which recorded a reading of the speed of the appellant's car at 90 km per hour. Accounts differ over the exact sequence of events which followed, but it is clear that Mr Willis was stopped by the police and issued with an infringement notice for travelling at 88 km per hour in a 70 km per hour zone ‑ the initial radar reading of 90 km per hour being reduced to account for an accepted margin of possible error.
On 6 December 2010 in the Magistrates Court at Armadale Mr Willis pleaded not guilty to a charge of exceeding the speed limit in a speed zone contrary to s 11(3) of the Road Traffic Code 2000 (WA). After hearing evidence, her Honour, Magistrate Langdon found the appellant guilty and fined him $150 plus costs, having concluded that the prosecution had proved all elements of the charge beyond reasonable doubt.
At the trial before her Honour evidence for the prosecution was given by the two officers who were on patrol in the police vehicle when Mr Willis' speed was recorded. Her Honour described Senior Constable Mark Shipard and Senior Constable Timothy Fairclough as experienced policemen and likeable witnesses. She found them both 'reliable in their testimonies that there was no interference by any other vehicles or objects to the working of the radar apparatus, at the time it was targeted on the accused's vehicle'. In doing so, her Honour implicitly rejected the evidence of Mr Willis and his witnesses, Bradley James Carson and Travis Avey, who testified to the presence of another vehicle on the same side of Watkins Road as the police vehicle at the material time. Her Honour accepted the officers' evidence that the radar was targeted on Mr Willis' vehicle when the 90 km per hour reading was recorded and that this evidence was prima facie evidence of the speed that the appellant's vehicle was moving at the time, pursuant to s 98A(3) of the Road Traffic Act 1974 (WA). Her Honour found that Mr Willis had not displaced this prima facie evidence for the prosecution either through his own evidence or through that of his witnesses.
Proceedings in this court
By these proceedings Mr Willis seeks leave to appeal against this conviction and an extension of time within which to apply for leave to appeal. In his appeal notice dated 3 November 2010 Mr Willis, who, at his trial in the Magistrates Court, throughout these proceedings and again at this hearing, has appeared on his own behalf, listed his proposed grounds of appeal as:
1.Judge refused to look [sic] or take my evidence into account; and
2.New evidence that I didn't have on the day.
This application was accompanied by Mr Willis' written submissions in a rather irregular form, together with his affidavit in support of his application for an extension of time.
By orders and directions made by Jenkins J on 10 December 2010, her Honour directed that the application for leave to appeal and the application for extension of time should be heard at the same time as any appeal. At the hearing of the applications before me on 8 February 2010, Mr Willis handed up a more detailed set of written submissions.
Application for extension of time
Any application for leave to appeal against a conviction in the Magistrates Court should be commenced not later than 28 days after the date of the decision ‑ Criminal Appeals Act 2004 s 10(3). However, this court has power to extend the time for making such an application. Mr Willis seeks an extension of time to allow him to continue with his application for leave to appeal. In his affidavit of 3 November 2010 he deposes that he was under a misunderstanding as to the potential costs of any appeal, claiming that he had been led to believe, by various initial inquiries, that it would cost him in the vicinity of $10,000 or more. In his affidavit Mr Willis went on to say that it was not until he made a number of further inquiries that he realised it would be possible for him to conduct the proceedings on his own behalf for much less.
By the written submissions filed on behalf of the respondent, counsel did not concede that the events outlined by Mr Willis in his affidavit were sufficient to explain his delay in commencing proceedings and, therefore, opposed his application for an extension of time. However, Mr Willis' later written submissions, produced shortly before the hearing, gave more detail of the inquiries which he had made about the likely costs of the appeal and, in the light of this, counsel for the respondent did not make further opposition to the application for the extension of time.
I consider that I should give regard to the fact that Mr Willis, as a litigant in person, was unfamiliar with and uncertain about the procedure to be followed and the likely costs associated with instituting his proposed appeal. The delay which has occurred in the filing of his application is not great, being slightly less than one month, and there is no suggestion that prejudice has been, or might be, caused to the respondent by the delay which has occurred. Taking his lack of knowledge or experience into account, together with the absence of resort to legal advice, I am satisfied that the delay which has occurred in the institution of this application has not been great and that Mr Willis should be granted the extension of time to apply for leave to appeal which he seeks. This is an occasion where any arguable ground of appeal ought to be heard rather than refused and an extension of time will, therefore, be granted.
Leave to appeal
The same lack of familiarity with legal proceedings, procedures and process is evident in Mr Willis' efforts to formulate cogent and specific grounds of appeal. The proposed grounds in his initial notice are not very informative, yet by his latest written submissions his intentions are sufficiently clear. The substance of Mr Willis' proposed appeal appears to be that the learned magistrate incorrectly concluded that the 90 km per hour reading recorded by the police radar scanner was caused by his vehicle. He does not challenge the reading actually recorded on the police radar scanner but contends that it must have been erroneous because he was driving within the speed limit. His further contention is that the police radar scanner reading must have been caused by interference by other objects within the scope of the radar beam. Accordingly, Mr Willis submits that the learned magistrate wrongly accepted the evidence of the police officers at his trial and failed to give any, or any proper, consideration to his own evidence and that of his two witnesses. These contentions are, in effect, the substance of his first proposed ground of appeal.
With respect, I consider that there are arguable grounds for Mr Willis to contend that there are inconsistencies or issues not resolved by her Honour's reasons arising from the evidence of the two attending police officers. As to these, I consider that these unresolved issues, which I will mention more fully later, can be explained by the long time which elapsed between the date of the alleged offence and the trial ‑ nearly 18 months. Bearing in mind that the two police officers concerned were routinely involved in road traffic patrol duties and must, therefore, have had occasion to stop many different motorists for alleged traffic infractions over the period since this alleged offence, it is not surprising that their recall and the details of the sequence of events was limited, giving rise to some minor conflicts of evidence between their testimony and that of Mr Willis and his witnesses. For example, one of the police officers, who wrote out the infringement notice, said in his evidence that there were only two persons in the appellant's vehicle, the driver and one other, whereas it is clear that there were three men. Again, the appellant said in evidence that the police officer writing out the infringement notice did so by stopping and standing at the rear of the appellant's vehicle after the appellant had stopped and the police car had pulled in behind, whereas the police officer said that he had come to the driver's side window and spoken to the appellant. Perhaps the most contentious issue of fact, although I am satisfied nothing in the end can be regarded as turning upon it, was the evidence of the appellant and his two passengers that when they came around the bend and first saw the police vehicle ahead of them there was a third vehicle close to the police vehicle just moving off in the same direction as the police vehicle. Both police officers said there was no such third vehicle present and that they had no recollection of any third vehicle being in the vicinity at the time. At the trial Mr Willis was suggesting the presence of the third vehicle may have been a reason, or one of several reasons, which could account for an erroneous reading being given by the police radar scanning device.
Her Honour did not explicitly deal with the issue of whether or not there was a third vehicle in the vicinity at the time the appellant's vehicle first came upon the police car but, by implication, rejected the evidence of the appellant and of his two witnesses to that effect without giving any detailed explanation of her reasons for doing so. Nevertheless, her Honour's conclusion was clear that, for other reasons, there was no reason to doubt the reliability of the reading from the police radar scanning device.
By reason of s 9(2) of the Criminal Appeals Act 2004 (WA) leave to appeal must not be given on any ground of proposed appeal unless it has a reasonable prospect of success. In Samuels v The State of Western Australia [2005] WASCA 193 [56] the Court of Appeal explained that this requires that any proposed ground of appeal must have a rational and logical prospect of success, that is, one which is not irrational, fanciful or absurd, before leave to appeal may be granted.
Mr Willis desires to contend that the existence of a number of factors at the scene may have caused the radar scanner to give an erroneous reading. He includes in this list of possible sources of interference the alleged presence of the third motor vehicle, buildings and other flat surfaces near the sides of the roadway, and the rotating metal blades of a windmill in the line of sight which may have caused reflections of the radar beam. He goes on to contend that other possible sources of reflection, including animals and objects falling from trees, might also account for what he alleges is an unreliable radar result reading.
It seems to me that if there was any arguable basis to consider that there may have been a false reading from the radar scanner due to a reflection or reflections of the radar beam from some object or objects other than the targeted vehicle, that would provide a reason to doubt the reliability of the radar reading result. That, in turn, would mean that Mr Willis' prospects of success and his proposed appeal could not be described as irrational, fanciful or absurd and that, consequently, leave to appeal on the first ground, as elucidated in the written and oral submissions, should therefore be given.
The presence of an arguable ground of appeal does not, in any way, mean that the proposed ground of appeal must succeed. Rather, it simply means that it is not frivolous or artificial but, rather, is worthy of attention and consideration to the extent that it should be examined upon its merits in the circumstances of the particular case.
Mr Willis' second proposed ground of appeal, namely his claim for the discovery of fresh evidence not reasonably available at the date of the trial, was not pursued. In the course of the hearing of the appeal Mr Willis acknowledged that the proposed evidence was not 'fresh' in the legal sense and that he did not wish to pursue that ground. In his written submissions Mr Willis had also alleged that the learned magistrate had been biased by refusing to take his evidence and that of his witnesses into account but, again, did not pursue the allegations of bias at this hearing. In any event, I am satisfied that neither aspect of the second proposed ground of appeal had any reasonable prospect of success, and had that been pursued, I would have refused to grant leave to appeal in respect of that ground.
Alleged interference with the radar signal
At the trial in the Magistrates Court and at the hearing of this appeal Mr Willis submitted that other surfaces and roadside objects within the line of sight and the potential scope of the radar beam may have reflected the beam, or parts of it, and so interfered with the operation of the police radar, leading to erroneous or misleading results. He maintained that he was not exceeding the speed limit at the material time and that the reading recorded by the police radar must have been caused by something other than his vehicle. Nevertheless, he did not contest that a reading of 90 km per hour had been recorded by the police radar scanner when activated by the officers. In proceedings for a charge for speeding, s 98A(3) of the Road Traffic Act provides:
… evidence may be given of the use of speed measuring equipment by an authorised person in relation to a vehicle and of the speed at which that vehicle was moving as ascertained by the use of that equipment, and that evidence is prima facie evidence of the speed at which the vehicle was moving at the time of the use of that equipment in relation to that vehicle.
Accordingly, in the present case, this places upon the appellant an evidential burden of displacing or rebutting the presumption that the radar reading, from the authorised speed measuring equipment used by these police officers, of 90 km per hour was an accurate record of the speed of his vehicle. At the trial Mr Willis submitted that her Honour should consider a variety of other objects which might possibly have caused the speed reading recorded by the radar scanner including: reflective road signs, a metal shed in a paddock adjacent to Watkins Road, objects falling from overhanging trees, and metal windmills visible from the road. Photograph evidence had been tendered which showed the presence of all such alleged potential causes of radar reflection. However, her Honour found that there had been no sufficient evidence led to establish that any of the alleged potential causes of interference suggested by Mr Willis had, in fact, interfered with the radar scanner's reading of 90 km per hour. In particular, her Honour was impressed by and accepted the evidence of one of the police officers that if there was a false reading, presumably caused by multiple reflections of the radar beam, the radar scanning device would emit a high pitched sound and that this would be accompanied by an error message, but that nothing of this sort happened on this occasion.
In Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Ipp J observed, at 448:
… primary findings of fact will not ordinarily be interfered with on an appeal, provided that there is evidence to support those findings, and provided that the appellant fails to establish that the court below has not taken proper advantage of seeing and hearing the witnesses. Nevertheless, when findings of primary fact are attacked, and the inferences drawn from the primary facts are submitted to be wrong, it remains the task of an appellate court on an appeal by way of rehearing to embark on an analysis of the evidence, documents and objective facts in order to determine the issues afresh.
However, an appellate court will generally refrain from interfering with findings of fact based upon the credibility of witnesses unless it appears that the judicial officer has failed to use or has palpably misused the advantage of seeing and hearing the witnesses or has acted upon evidence which was inconsistent with the facts incontrovertibly established by the evidence or which was glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472 ‑ as further explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. This test focuses attention, in the present case, on whether or not the prima facie evidence at the trial contained in the radar scanner reading had been displaced or refuted.
In this regard, the position at the trial was that there was no evidence put to the court that there was any actual possibility or probability that the radar reading recorded by the police officers was erroneous on this occasion. None of the three witnesses, including the appellant, who gave evidence in defence of the charge had any acceptable qualifications or experience which would permit him to give expert evidence about the reliability of such radar devices or the possibility that reflections from such surfaces would, in this particular case, have had an actual or potential impact on the reading recorded by the police officers. No expert evidence to that or to related effect was adduced by the appellant. Mr Willis attempted to raise these matters as possible explanations for what he claimed was a false radar reading but his suggestions in this regard were really no more than conjecture and were not backed by any admissible scientific or other evidence to that effect. This being the case, there is really no reason to question or to doubt the conclusion of the learned magistrate that the reliability of the radar scanning device reading had not been rebutted or displaced and therefore stood as prima facie evidence. Not only was it prima facie evidence, it was the only evidence of the speed of the appellant's vehicle apart from his own denial.
I have already mentioned the evidence of Constable Shipard that, on occasions when this authorised radar speed measuring equipment was malfunctioning or received a dual or multiple radar reflection from other objects, it would emit a distinctive sign and record an error message. This was evidence which I am satisfied the learned magistrate was justified in considering conclusive when accepting that there was no interference with the radar signal on this particular occasion.
Admissibility of Australian Standard AS2898.2‑2003
At the hearing of these applications Mr Willis sought to rely on material which had been rejected as inadmissible by the learned magistrate at the trial. This is the publication entitled Australian Standard ‑ Radar Speed Detection Part 2: Operational Procedures AS 2898.2‑2003. This is a document published by Standards Australia International Ltd. I received the document and marked it for identification on the hearing of these applications and at the time indicated that I would consider whether or not it should, as Mr Willis submitted, have been accepted as evidence at his trial.
Standards Australia International Ltd is an independent not for profit organisation recognised by the Australian Government as the peak non‑government standards body in Australia. According to the document itself, and it was not suggested by the respondent that I could not have recourse to this, the document was prepared by a committee consisting of representatives from Australian automobile, industry, engineering and State police bodies. The document specifies certain procedures that the committee agreed should be followed when using a radar device to measure the speed of a target for law enforcement or for scientific measurement, including a recommendation that a radar device should not be operated where there is the possibility of interference by stationary reflective objects as described in its contents.
At his trial her Honour was of the view that Mr Willis' assertions of potential interference with the radar beam from nearby objects did not constitute evidence which challenged the validity of the radar reading. Her Honour held that in the absence of supporting expert evidence the radar operational procedures publication was not admissible and could not be relied upon to displace the prima facie evidence for the prosecution of the radar speed equipment result. With respect, I consider that her Honour was correct to conclude that the standards association publication was not admissible evidence at the trial and it follows that it is not admissible upon this appeal. It is a document dealing with specialised expert knowledge needing scientific evidence for its proper application which, in my opinion, would only be admissible if supported or authenticated by suitably qualified expert evidence. It is not material of which I am prepared to take judicial notice on the basis that the operation of such radar controlled speed devices and potential causes of interference with them are so specialised and particular, and so likely to be subject to other environmental influences, that a court should not have recourse to them as a source of evidence or information without the guidance or explanation of a suitably qualified expert. The document is, necessarily, broad in language and intended as a general operational guide as opposed to a detailed catalogue of circumstances which might interfere with correct operation. For use to be made of this document, I consider that it would need to be explained and advanced by a suitably qualified expert witness who could offer opinion on the likelihood of such potential interferences occurring in the particular setting. As already noted, Mr Willis was unable to establish that he had qualifications to venture expert evidence in this sphere.
In any case, as I indicated during the course of the hearing, the admissibility of the Australian Standards publication would do very little to advance the appellant's position. The document could, at the most, only assist Mr Willis to establish the general proposition that a radar scan may, in certain circumstances, return an incorrect reading. To overcome the effect of s 98A(3) of the Road Traffic Act giving prima facie effect to the evidence of such a device, the appellant needed to show that, on the probabilities, an incorrect reading occurred in this particular instance. There was no cogent or admissible evidence, beyond the unsubstantiated possibility suggested by Mr Willis, that this was the case.
In the course of the hearing of the appeal, Mr Willis also contended that the police radar reading might have been caused by what Constable Shipard referred to in his evidence as a 'double bounceback'. Again, however, no expert evidence was put before the court or her Honour to explain the meaning of this term. From the course of submissions it appears to be a phenomenon whereby a radar beam is reflected off a stationary object, causing the recording radar device to register a speed double that of the speed of the vehicle in which the emitting radar device is located. Mr Willis contended that the 90 km per hour reading may have been caused by the police radar reflecting off a third vehicle on the road between the police car and his own vehicle's position. His argument is consistent with it being reflected off some other stationary object such as a metal shed, such as the one shown in the photographs.
I cannot accept this submission. Her Honour accepted the evidence of the police officers that there were no other vehicles in the vicinity of Watkins Road where the radar reading was taken. This was a finding of fact based on the credibility of the witnesses and was, accordingly, open to her Honour. I have, previously, indicated that the reasons for rejecting the testimony of the appellant's witnesses on this issue were not very fully investigated or explained and that that finding itself might be susceptible to challenge. However, even if that were done and the challenge were successful, that would not overcome the prima facie effect of the recorded reading of the radar screen measuring device or, more significantly, the absence of any error message or indication from the device itself as described by Constable Shipard.
The incompletely resolved or unresolved issues of fact about whether or not there was a third vehicle in the vicinity, or why her Honour preferred the evidence of the police officers on that issue, and the further issues as to the point at which the police officers activated their emergency lights and sirens and the exact sequence of events when the police officers alighted from their vehicle and began writing out the infringement notice need not be pursued. None of those has any capacity to bear on the essential issue of whether or not there was evidence to displace the prima facie effect of the recording made by the police radar recording device.
Conclusion
I am satisfied that the 90 km per hour speed reading recorded by this radar device, discounted conventionally for a possible margin of error, was determinative of the charge against the appellant. That evidence is given prima facie effect by s 98A(3) as I have repeatedly mentioned. There was no evidence at the trial capable of rebutting or displacing the record of the police speed radar device, nor was there any admissible expert evidence capable of putting it in issue. Whether expert evidence might have been available to advance that argument and, if so, whether it might have had that effect if adduced at the trial are entirely hypothetical questions. Upon the evidence adduced at the trial and upon the evidence which this court must address, I am satisfied that the conviction of the appellant was rightly recorded. It follows that although I have granted an extension of time and leave to appeal, this appeal must be dismissed.
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