BINETTI -v- FEASEY [2015] WASC 93 (20 March 2015)

(c) on 2 December 2012 she exceeded the speed limit in a speed zone by not more than 9 km per hour, contrary to reg 11(3) of the Code; and

(d) on 27 January 2013 she exceeded the speed limit in a speed zone by not more than 9 km per hour, contrary to reg 11(3) of the Code.

2 The appellant was convicted in her absence of the last of those charges on 6 September 2013 (see s 55 of the Criminal Procedure Act 2004 (WA) (CPA)). She was convicted, again in her absence, of the remaining charges on 12 September 2013.

3 The appellant applied to have her convictions set aside. The application was heard and dismissed on 31 January 2014. The learned magistrate noted that the appellant questioned the accuracy of the technology that had been used to record her speed; that she contended that she should not be criminally liable for exceeding the speed limit by a small amount, as she lacked 'wilful intent'; and that she alleged that she had decided that it was safer to proceed through the intersection than to stop at the traffic light because it was raining and the road was wet.

4 The magistrate accepted the appellant's explanation for why she had not attended court when she had been convicted. However, he concluded that it was not in the interests of justice to set aside the convictions as the appellant had no prospect of succeeding on the grounds that she had identified in her application. The prosecution was not required to prove 'wilfulness' in relation to the speeding charges and the appellant had been convicted of travelling through a red, not amber, traffic light. That indicated that there had been sufficient time for her to stop her vehicle at the intersection.

5 The appellant commenced an appeal out of time by a notice dated 27 June 2014. Two grounds of appeal were proposed:

(a) 'defence plea for mistake of fact on strict liability traffic offences';

(b) 'judicial evaluation sought over "exceed the speed limit by less than 9 km/h" legislation in order to prove beyond reasonable doubt that legal reform is critical for this strict liability infringement, which is based on debunked, incomplete and inconclusive research claiming factual and which is causing gross miscarriages of justice'.

6 The appellant made an affidavit that accompanied her appeal notice (the Appeal Affidavit). The affidavit purported to expand on the grounds of appeal proposed in the notice. The appellant stated in her affidavit that:

(a) 'evidence will reveal that reasonable grounds for defence were unable to be considered in the Magistrates Court due to Strict Liability Law restricting Magistrate's authority to be able to apply procedural fairness' (par 2);

(b) the appellant is 'a lay person with no formal legal education but has spent the past 18 months researching, to the best of intellectual abilities coupled with physical liabilities, what began as a need to understand how to defend against a criminal conviction but evolved into producing overwhelming evidence that constitutes a Miscarriage of Justice and Entrapment from Western Australian Speeding Offences issued for EXCEEDING THE SPEED LIMIT BY LESS THAN 9 km/h, as this law can be proven to be based on mistakes of fact, inaccurate physical, biological and social science data and research and is sustained by deceptively misleading mass marketing campaigns and corporate coercion' (par 3);

(c) there was a 'serious contradiction with societal campaigns targeted at demoralising and penalising millions of responsible, safe, biological drivers for not being able to apply and hold surgical precision and stability to a machine accelerator which is constantly assaulted by the physics of moving variables, without a reasonable application of variable speed flux tolerance, when motor vehicle companies are continually applauded for engineering vehicles that can reach an excess speed of 5 10 km/h with feather touch pressure on the accelerator, in fewer seconds that the recommended allowable seconds for yellow and red traffic lights' (par 3(c));

(d) 'evidence of bad weather conditions and excessive rainfall on the red traffic light and simultaneous excess speed convictions, 4 November 2012, resulted in myself, the appellant, making a snap decision of whether to brake on a wet, slippery surface or increase speed upon yellow light recognition' (par 4);

(e) 'evidence will demonstrate that: the subsequent two speeding offences that were captured on fixed camera locations, 2 December 2012 and 27 January 2013, in regularly travelled local locations, were targeted due to a computer generated system flagging the appellant as a dangerous driver after the red light incident' (par 5).

7 The balance of the affidavit referred to matters such as research into the location of speed measuring devices, the need to reform the law to provide for a 'mistake of fact for strict liability offences' plea, and the failure of police officers to provide the appellant with an opportunity to explain the circumstances in which the offences were committed.

8 Both parties handed up authorities during the hearing of the application for leave to appeal. Accordingly, they were given leave to file supplementary submissions on the effect of those authorities. Only the appellant filed further submissions. The submissions did not deal with any of the authorities mentioned by the respondent in the hearing. Rather, they raised new arguments. However, I have dealt with the appellant's supplementary submissions given that she was unrepresented and the arguments raised, although new, substantially followed on from matters that had been previously canvassed in the appeal.

9 The appellant's supplementary submissions referred to Director of Public Prosecutions (NSW) v Bone [2005] NSWSC 1239; (2005) 64 NSWLR 735 and also attached various documents:

(a) extract from a website apparently maintained by the Western Australian Police - the extract concerned the operation of speed and red light cameras;

(b) extract from Hansard, Legislative Assembly, 21 August 2013 - the extract was apparently taken from a committee discussion on the allocation of 'infringement income', the use of point-to-point and fixed cameras and the efficacy of various road safety policies;

(c) email from Professor Max Cameron to the appellant dated 29 June 2014 regarding the tolerances applied by the police for speed management by devices such as speed cameras;

(d) research note published by the Accident Research Centre, Monash University entitled 'Accuracy of vehicle speedometer readings with respect to speed enforcement tolerances';

(e) vehicle condition appraisal document, apparently utilised by the Royal Automobile Club of Western Australia;

(f) email from Professor Cameron dated 14 August 2014 regarding speeding and road safety;

(g) news item from the West Australian, October 23, 2013 edition reporting on views expressed by Professor Cameron on speeding and road safety policies;

(h) an article by Professor Cameron entitled 'Use of Kloeden et al's relative risk curves and confidence limits to estimate crashes attributable to low and high level speeding' published in the Journal of the Australasian College of Road Safety vol 24 no 3 (August 2013); and

(i) lists of documents compiled by the appellant concerning speeding, road safety and speed measuring devices.

10 The appellant stated in her supplementary submission that:

(a) she wished to rely on the decision in DPP v Bone as she believed that 'the interpretations of a defence of honest and reasonable mistake in relation to strict liability are directly relevant to my case' (p 1);

(b) at the time of the hearing on 31 January 2014 she 'had not completed complex and comprehensive research relative to my defence, therefore Magistrate Flynn was not aware of my supportive evidence regarding speedometer calibration errors' (p 2);

(c) she was not previously aware that 'gross inaccuracies of speedometer calibration were possible' (p 3) - the emails and articles written by Professor Cameron that were attached to her supplementary submissions concerned inaccuracies in measuring and recording speed;

(d) 'it is my understanding that punishment for a criminal offence is to satisfy public/professional opinion by application of determent and/or rehabilitation measures. In light of evidence that I have brought forth I would like consideration given to how nonacquittal to the enforcement of the criminal charges and punishments will actually assist me with deterrence and/or rehabilitation to not reoffend, thereby assisting the public ...' (p 6).

11 The appellant also made submissions about road traffic safety policy and legislation and the steps that she had taken to research such matters - steps that she considered were relevant to her punishment (however, she did not appeal against her sentence).

12 Regulation 11(3) of the Code provides that a person shall not drive a vehicle in a speed zone, at a speed exceeding, in kilometres per hour, that indicated by the numerals on the speed limit sign, at the beginning of the speed zone. The elements of the offence created by the regulation are that:

(a) the accused person was the driver of the vehicle (see the definitions of 'drive' and 'driver' in s 5 of the Road Traffic Act 1974 (WA) (RTA);

(b) the thing being driven by the accused person was a vehicle (see the definition of 'vehicle' in s 5 RTA);

(c) the accused person was driving a vehicle in a speed zone (see the definition of 'speed zone' and 'speed limit sign' in reg 3 of the Code);

(d) the speed of the vehicle exceeded the speed limit for the speed zone in which the vehicle was being driven (and see s 98A RTA on speed measuring equipment).

13 The second proposed ground of appeal does not allege a ground within s 8(1) of the Criminal Appeals Act 2004 (WA). It is not a function of the court to 'evaluate' legislation or the need for legislative reform. The same observation applies to the matters stated by the appellant in par 3 and par 3(c) of the Appeal Affidavit and to much of the material attached to her supplementary submissions that concerned the efficacy of speeding and road safety policies.

14 The appellant's application for leave to appeal on the second proposed ground of appeal must be refused.

The issues raised by the first proposed ground of appeal

15 The appellant did not dispute that she was the driver of the vehicle or the accuracy of the speed camera that measured the speed of her vehicle on each of the occasions for which she was charged. She also accepted that the speed limit for the relevant speed zones was 65 km per hour. However, the appellant argued that she had not intended to exceed the speed limit. She suggested that there were at least two explanations for why her vehicle had been recorded as exceeding the speed limit. First, the speedometer in her motor vehicle was inaccurate. That was a matter about which she had not been aware at the relevant times. Second, it is 'physically impossible for a person to maintain a constant speed at or immediately below 65 km/h'.

16 The offence of speeding as created by reg 11(3) of the Code does not require the prosecution to prove any mental state; that is, the prosecution is not required to prove that the accused person deliberately or intentionally drove in excess of the applicable speed limit. Accordingly, the appellant would be guilty of the offence even if her assertion that she did not intend to exceed the speed limit is accepted.

17 Further, whether or not it is physically impossible for the appellant or others to maintain a constant speed at or immediately below the applicable speed limit is not to the point - it may be a matter that is relevant to policy decisions about drafting and enforcing statutory provisions creating speeding offences but it is not relevant to whether an offence under reg 11(3) has been committed by an accused person on a particular occasion.

18 I have inferred that the question that the appellant initially intended to raise by her first proposed ground of appeal was whether the law ought to be 'reformed' to provide for a mistake of fact defence to a charge under reg 11(3) of the Code - the appellant having assumed that the defence was not available as the law presently stands. However, it was clear from her reference to DPP v Bone that the appellant subsequently sought to argue that a defence of mistake of fact applied both to the offences for which she was convicted and to the circumstances of her convictions.

19 The appellant did not argue that s 24 of the Criminal Code provided a possible defence when she applied to have her convictions set aside. However, the appellant's failure to have raised the 'defence' provided by that section should not prevent her from succeeding in her appeal if it is possible that a substantial miscarriage of justice has occurred. That is especially as the appellant appeared in person.

20 However, it would not be sufficient for the appellant to establish that s 24 of the Criminal Code applies to the offence of speeding for her to succeed in the appeal. The appellant must also establish that there is an issue to be tried on whether the 'defence' is available in answer to the charges that were alleged against her. It is convenient to commence with this matter on the assumption that s 24 does apply to the offence created by reg 11(3) of the Code.

21 In G J Coles & Coy Ltd v Goldsworthy [1985] WAR 183, Burt CJ observed:

The belief 'under' which the act is done must be honest, which is to say no more than it be held in fact; it must be reasonable, which is to say that it must be based on [the accused's] appreciation of primary objective fact which is in reason capable of sustaining the belief; it must be mistaken and it must be a positive belief because the extent of the criminal responsibility is not to be greater 'than if the real state of things had been such as he believed to exist' [187] [188].

22 It is not, of course, for an accused person to establish that they had an honest and reasonable but mistaken belief about the state of things when doing the acts that constituted the offence alleged. The accused bears only an evidentiary onus so that it is for the prosecution to prove beyond a reasonable doubt that the accused did not act under an honest and reasonable mistaken belief once there is some evidence that raises the issue of the accused's beliefs. The prosecution may discharge its onus by proving beyond a reasonable doubt that the accused person did not, in fact, hold the belief; or that the belief was not reasonable; or that the accused person was not mistaken as to the real state of things; or that the accused person did not hold a positive belief in the sense described by Burt CJ in G J Coles v Goldworthy.

23 The appellant made an affidavit in support of her application to set aside her convictions (the Magistrates Court's Affidavit). A copy of the affidavit was attached to the Appeal Affidavit ('attachment 1' at page 13 and following of the Appeal Affidavit).

24 The appellant stated in the Magistrates Court's Affidavit that she believed she had been targeted following the 'red light violation' because of the short period over which the speeding offences were allegedly committed. That was an allegation that was repeated in the appeal. The allegation is irrelevant to whether the appellant had committed the offences with which she had been charged.

25 As is apparent from the wording of the charges, the speeding offence allegedly committed by the appellant on 4 November 2012 occurred at the same time as the offence allegedly committed under reg 40(1) of the Code. The appellant described the circumstances in which the offences were committed in the Magistrates Court's Affidavit. In summary, she stated that a considerable amount of rain had fallen on 4 November 2012. She observed an amber traffic light at approximately 50 m from the intersection controlled by the relevant traffic signal. She realised that she would have to brake more heavily because of the wet road and she, 'chose the "increased speed" reflex instead of the "brake" reflex which resulted in successful navigation without collision even though I knew I would be positioned within the intersection when the light was red because I had also calculated that I could exit the red zone before adjacent traffic entered the intersection on their green signal' (page 17 of the Appeal Affidavit). She described her actions as being 'motivated by extraordinary circumstances out of my control providing the potential for an emergency situation, in accordance with s 25(2), the Criminal Code' (page 17).

26 In relation to the remaining two speeding charges, the appellant asserted that all drivers have 'unintentionally glided over the recommended speed limit and had to readjust their speed accordingly'. She continued:

[B]ecause of this human limitation within the mechanical world of precision, the field potential for entrapment of unwitting civilians within the complex systems of legislation, law enforcement and our judicial system, can be easily translated as a 'forprofit corporation marketing strategy environment to die for' (page 18 of the Appeal Affidavit).

27 The appellant then contended that more complex technology ought to be adopted to determine, in effect, whether drivers had inadvertently exceeded the speed limit and that, 'in accordance with s 23A, the Criminal Code, I was in no way motivated toward exceeding speed limits or driving recklessly and dangerously on the alleged days of infringement' (page 20 of the Appeal Affidavit).

28 The appellant did not assert in the Magistrates Court's Affidavit that she believed that she was not speeding on the three occasions that were the subject of the charges alleged against her. Accordingly, the question of whether she had an honest and reasonable but mistaken belief about the speed at which she was travelling did not arise on the statements made by the appellant in the affidavit. As the magistrate who heard the application to set aside the convictions correctly observed, at most the appellant sought to argue that she had not intentionally or deliberately exceeded the speed limit - the reference to s 23A of the Criminal Code was to be understood as raising that issue.

29 The Appeal Affidavit also attached a letter dated 25 November 2013 from the appellant to the Commissioner of Police, with copies to the Armadale Magistrates Court and others. The letter was lengthy (11 pages of single spaced type). The appellant again confirmed in her letter that, in relation to the offences allegedly committed on 4 November 2012, she had made a deliberate decision to accelerate her vehicle through the traffic signal controlled intersection rather than brake because of the weather conditions and the wet road. The letter continued:

In regard to the other infringements that were issued to me within a very short period of time AFTER the red traffic light infringement and the increase of speed I used on this day, which both claim excess of speed by not more than 9 km/h, border on the ridiculous. In both of these snap shots it is clearly evident, again, that I was in no way maliciously intending or presenting the possibility to cause harm to another vehicle, pedestrian or the environment; in fact within a large periphery of my vehicle there are no other vehicles (page 41 of the Appeal Affidavit).

30 The balance of the letter argued a number of matters concerning road safety policies and in particular, the efficacy of enforcing speed limits by fines as a road safety measure. Again, the appellant did not assert in her letter that she believed that she was not speeding on each of the occasions that were the subject of her convictions.

31 As has been mentioned, I have read the Appeal Affidavit as indicating that the first proposed ground of appeal was intended to raise the need for the law to be amended to provide for a defence of mistake of fact to speeding offences. It was only in the appellant's supplementary submissions that she apparently asserted for the first time that the defence of mistake of fact could apply to the offence created by reg 11(3) of the Code as the law presently stands. The appellant stated in her supplementary submissions that she relied on DPP v Bone and that, 'I believe this case could be viewed by replacing "drinks spiked unbeknown to the defendant" with "faulty speedometer unintentionally present unbeknown to the defendant"' (page 2).

32 The defendant in DPP v Bone was charged with having driven a motor vehicle with a middle range prescribed concentration of alcohol in his blood. He claimed that he had held an honest and reasonable belief that he had a lesser concentration of alcohol in his blood. The essence of his case was that his drinks had been spiked without his knowledge. On appeal, the New South Wales Court of Appeal held that a defence of an honest and reasonable belief in facts which, if true, would make an accused person's conduct innocent (refer Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536) applied to the offence with which the defendant had been charged.

33 The appellant further stated in her supplementary submissions that:

As I have testified, I was unaware that gross inaccuracies of speedometer calibration were possible, but through continued and determined research to solve the puzzle as to why I had been convicted of criminal offences that infer reckless driving and blatant disregard for the law, I have come to understand that this fact is, however, well known within highly respected government and public institutions dealing with road safety issues (page 4).

34 The appellant then referred to documents attached to her submissions concerning speedometer error and to advice that she had received that various factors can affect speedometer calibration, including matters such as changing tyres. She explained that the vehicle that she had been driving at the relevant times had been purchased secondhand; that the previous owner had used the vehicle extensively in country areas and that the vehicle had been regularly serviced (the implication being that the vehicle's tyres would have been routinely changed). She submitted:

What can be inferred from this is that the vehicle I had purchased had made repeated journeys on roads that consistently have considerable damage due to heavy haulage; tyre changes would have been more frequent than a city driven vehicle doing less kilometres, the front end repair could well have been from hitting a roo; and that all these variables heavily contribute to faults in speedometer calibration (page 5).

35 However, this evidence does not raise a possible defence under s 24 of the Criminal Code for two reasons. First, the appellant still does not assert (and never has) that she believed at the relevant times that she was driving at a speed that did not exceed the applicable speed limits. Second, any such belief would, in any event, not be reasonable.

36 As to the first of those reasons, the appellant provided a considerable amount of material concerning the circumstances in which the speeding offences were allegedly committed and yet, she did not state that she had checked her speedometer immediately before the offences were committed and that, as a result, she had an actual belief that she was driving at a speed that was within the applicable speed limits when the speed of her vehicle was measured. The submission 'faulty speedometer unintentionally present unbeknown to the defendant' perhaps hinted at that possibility but the submissions that all drivers had 'unintentionally glided over the recommended speed limit and had to readjust their speed accordingly' and that it was not possible for a person to maintain a constant speed at or immediately below the applicable speed limit captured the essence of her argument as to why she ought not to have been convicted of speeding. The argument was not that she had an actual belief about the speed at which she was driving at the precise time that the offences were committed. Rather, the appellant argued (in relation to the second and third speeding offences) that she must have inadvertently and, I assume momentarily, exceeded the limit in circumstances that posed no danger to other road users. In relation to the first speeding offence, the appellant stated that she had deliberately increased her speed to get through the intersection. Accordingly, there was no statement by the appellant in the material that she submitted to the effect that she had, in fact, held a positive but mistaken belief about her speed at the time that the offences were committed.

37 As to the reasonableness of any belief, the appellant did not provide evidence that the speedometer in her vehicle was, in fact, inaccurate. At most, she has raised the possibility that the speedometer was inaccurate due to the conditions under which it had been previously driven. Further, as the material that the appellant submitted indicated, it is well known that vehicle speedometers may be inaccurate. So, for example, the police from time to time arrange for sites at which members of the public may test the accuracy of their vehicle speedometers. In my view, it would not be open to find that an accused person held a reasonable belief concerning the speed at which they were driving unless there was evidence that they had known whether the speedometer in their vehicle was accurate and if not, the degree to which it was inaccurate. It would be necessary for an accused to have made some inquiry and to have acquired some information about the device on which they relied to form a belief as to their speed.

38 Those conclusions are sufficient to dispose of the appellant's application for leave to appeal and the appeal without the need to determine the question of whether s 24 of the Criminal Code applies to the offence created by reg 11(3) of the Code. Surprisingly, that question has not been decided in this jurisdiction.

39 In Illich v Woodburn [2004] WASCA 148, the appellant was charged with contravening reg 11(3) of the Code. His speed was measured using two speed measuring devices. The magistrate dismissed the charge on the ground that the appellant had an honest and mistaken belief as to his speed in circumstances where the speed measuring devices may have been activated by another vehicle travelling close to the appellant's vehicle. On appeal, Jenkins J held that the magistrate had erred in law in applying s 98A RTA. Accordingly, her Honour found it unnecessary to determine whether s 24 applied to the offence created by reg 11(3) of the Code. However, her Honour observed:

The appellant was content to argue the appeal on the basis that s 24 applied to this offence. However, at my request, the appellant provided me with some written material bearing on this issue. Counsel was unable to locate a decision of a Western Australian Court relating to the application of s 24 to the Road Traffic Code 2000 or to this offence in particular.

She located a reported decision of the Full Court of Victoria, Kearon v Grant [1991] VicRp 25; (1990) 11 MVR 377, and a reported decision of a single Judge of the Supreme Court of South Australia, Hearn v McCann (1982) 5 A Crim R 368, both to the effect that the common law defence of honest and reasonable belief of a state of facts is not available to the offence of exceeding a set speed limit in those States [22] [23].

40 In Stern v Hodgson [2012] WASC 23, the appellant was also convicted of an offence under reg 11(3) of the Code. The appellant appealed, alleging that his vehicle's factoryfitted cruise control did not maintain the set speed when his vehicle was travelling downhill. Hall J summarised the appellant's submission on that ground of appeal as follows:

In essence, Mr Stern says that after receiving previous speeding infringements and building up a number of demerit points he decided to use the cruise control in his car as a means to ensure that he did not exceed the speed limit on future occasions. He says that notwithstanding this he received another speeding infringement. He says that he then made inquiries as to the operation of the cruise control. He says that those inquiries led him to believe that the cruise control in his vehicle would only maintain a steady speed on a level surface but would not prevent the car from exceeding the set speed when going downhill [3].

41 The appellant pleaded guilty but sought to appeal against his conviction. Hall J refused leave to appeal, noting that:

At best what Mr Stern is asserting is that he took steps to try and prevent himself speeding but that these steps turned out not to be efficacious. He does not dispute that his car was travelling over the limit or that he was driving it at the time. He does not suggest that his speedometer was not working, which is not to suggest that that would provide any excuse. He simply says he relied upon the cruise control. Clearly he was wrong to do so.

Mr Stern says that he now believes the cruise control in his vehicle was not able to limit the speed when going downhill. Whether that is true or not is not established by any admissible evidence, nor is it established that the car was travelling downhill at the relevant time, but in any event it is difficult to see how any of this could provide a defence to the charge. Speeding offences of this type have been considered in other jurisdictions to be absolute liability offences to which any defence of honest and reasonable mistake cannot apply: See Kearon v Grant [1991] VicRp 25; (1991) 1 VR 321; Hearn v McCann (1982) 29 SASR 448. Whether that is true in this State would depend upon the construction of the relevant statutory provisions: G J Coles & Coy Ltd v Goldsworthy [1985] WAR 183. However, the facts asserted by Mr Stern would not establish a relevant mistake as to the state of things under s 24 of the Criminal Code (WA) even if such a defence was open [13] [14].

42 Although it is tempting to leave this issue for another day, I have concluded that some further observations should be made about the possible application of s 24 to speeding offences in light of decisions in other jurisdictions and the view that I have tentatively formed that the section does apply notwithstanding those decisions. It will be understood that the observations that follow are not determinative of the appellant's appeal; as has been explained, the appeal fails on the assumption that s 24 of the Criminal Code does apply to the offence created by reg 11(3).

43 Section 24 of the Criminal Code (WA) provides that:

A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.

44 Section 24 forms part of ch V of the Criminal Code. Section 36 provides that the provisions of ch V apply to all persons charged with any offence against the statute law of Western Australia. Accordingly, s 24 must apply to the offence created by reg 11(3) of the Code unless the regulation expressly, or by necessary implication, excludes the operation of s 24. Borrowing common law concepts, the question is whether reg 11(3) creates a strict or an absolute liability offence.

45 In Kearon v Grant [1991] VicRp 25; (1991) 1 VR 321, the appeal division of the Supreme Court of Victoria held that the defence of an honest and reasonable belief was not open on a charge of exceeding a speed limit contrary to a regulation of the Road Safety (Traffic) Regulations 1988 (Vic). In a strongly worded judgment, Brooking J (with whom Kaye and Murphy JJ agreed) observed:

These speed limits are imposed by the regulations in the interests of road safety ... if ever one might expect an intention to impose strict responsibility, it would be in relation to this offence of driving a motor vehicle at an excessive speed ...

Speeding motor cars have become dreadful engines of destruction. The cost to the community in terms of death and injury and economic loss has been enormous. I would expect a provision of this kind to require drivers to keep within the applicable speed limit at their peril ... I think that the intention here is that motorists shall at their peril be aware of the applicable speed limit, and shall then at their peril so govern their speed as to keep within it ... human ingenuity and human nature being what they are, I should not expect the law to recognise mistake as a defence to a charge of this kind (323 324).

46 In reaching that conclusion, his Honour referred with approval to the judgment of Zelling J in Hearn v McCann (1982) 29 SASR 488 which was to similar effect. The same conclusion was reached by Gray J in Vandenbergh v Police [2005] SASC 197; (2005) 44 MVR 1:

Statutes creating offences for the purpose of regulating social conditions to protect public safety might more easily be regarded as imposing absolute liability. In regulating the conduct of persons who use public roads, the legislature is not concerned with the moral quality of the Act, but with protecting the welfare and safety of the public by preventing risk of injury. The present offences were created as part of an attempt to regulate the conduct of persons on public roads and gave rise to absolute liability [33].

47 Gray J cited August v Fingleton [1964] SASR 22 and Franklin v Stacey (1981) 27 SASR 490 in support of that conclusion.

48 Victoria and South Australia are jurisdictions in which the common law applies. In Western Australia, of course, the provisions of ch V of the Criminal Code concerning criminal responsibility apply rather than the common law doctrine of mens rea.

49 The proviso to s 24 states that the 'rule' created by the section may be excluded by the express or implied provisions of 'the law relating to the subject'. However, the proviso to s 24 must be read in the context of s 36 of the Code. In Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129, the Full Court stated:

For the respondent it was argued that by reason of the second paragraph of s 24 the operation of the section is excluded so far as concerns any offence created by s 24A of the Fisheries Act. There is no express exclusion, but it is said that there is an implied exclusion. In my opinion, this involves solely a question of statutory construction. It may be that in some cases decided in this Court this has been lost sight of, but it is now accepted that s 36 of the Criminal Code means exactly what it says and that the provisions of Ch V apply to all statutory offences. It follows that where there is no express exclusion then s 24 and the section creating an offence must, if possible, be read together, and s 24 can not be treated as excluded by implication unless on a fair reading of the penal section (read, of course, it the context of the whole Act in which it stands) it is seen that the penal section is inconsistent with the coexistence of s 24 so that effect cannot be given to both at the same time: Brimblecombe v Duncan [1958] Qd R 8, per Philp and Matthews JJ at p 12 and Stanley J at p 19 ... If this view is correct then decisions on the implied exclusion of the common law doctrine of mens rea cannot govern the present case. Now, the mere fact that s 24A is couched in absolute language cannot by itself be an implied exclusion of s 24 of the Criminal Code: if this were so, s 24 would never apply unless a penal senction itself indicated that s 24 was to apply, and this would be an inversion of what is enacted by s 24. And, in my opinion, it is not permissible to find an implied exclusion by regarding the subject matter of the particular statute. The most that such an examination can show is that it would be quite reasonable for Parliament in the particular case as a matter of policy to have excluded s 24: but if on a fair interpretation of the words used it can be seen that the two sections can stand together, then the fact that an exclusion would have been reasonable, or even the fact that an exclusion might have been expected, cannot, in my opinion, justify the adoption of a gloss on the words used so as to bring about such a result. I can see nothing in s 24A of the Fisheries Act, whether it is read alone or in conjunction with the rest of the Act, which shows any intention on the part of Parliament to exclude s 24 of the Criminal Code, or which creates the slightest difficulty in allowing both sections to stand together (133).

50 It should be noted in considering that passage that s 24A of the Fisheries Act 1905 (WA) provided that a person who, without lawful authority, had in his possession or control or on his premises or in any boat, vehicle, or aircraft any crayfish tail of a weight less than the weight prescribed commits an offence.

51 It is slightly more than 50 years since Geraldton Fisheries Co-operative v Munro was decided. However, I have been unable to identify any decision that suggests that the authority of the Full Court's reasoning has diminished with the passage of time. Indeed, in The State of Western Australia v 'R' [2007] WASCA 42; (2007) 33 WAR 483, Wheeler JA observed that:

Indeed, in Western Australia, Geraldton Fishermen's Co-operative Ltd v Munro ... determined for this State, in a way which has not been questioned since, the relationship between statutory offences created outside the Code and chapter IV of the Code [103].

52 (See also Ferrari v Neenan [2000] WASCA 191 [5] - [6]).

53 There are three points made by the Full Court in Geraldton Fishermen's Co-operative v Munro that are particularly significant in this context:

(a) where there is no express exclusion, s 24 and the section creating the offence must, if possible, be read together so that s 24 cannot be treated as having been excluded by implication unless, on a fair reading of the offence creating provision, it can be seen that the provision is inconsistent with the coexistence of s 24 so that effect cannot be given to both provisions at the same time - that is, 'if on a fair interpretation of the words used it can be seen the two sections can stand together, then the fact that an exclusion would have been reasonable, or even the fact that an exclusion might have been expected, cannot ... justify the adoption of a gloss on the words used';

(b) the fact that an offence is a strict liability offence (that is, the offence does not include a mental element such as knowledge or intention) does not, by implication, exclude the operation of s 24 (and see McPherson v Cairn [1977] WAR 28 (30); see also, Lappan v Hughes [2003] WASCA 173 in which Miller J cited with approval the summary of principles identified by Burt J in McPherson v Cairn - those principles were, in turn, extracted from the Full Court's decision in Geraldton Fishermen's Co-operative v Munro);

(c) the operation of s 24 is not, by implication, excluded by reason of the subject matter of the statute - that is, the implication must arise from the 'implied provisions of the law relating to the subject' and not from 'the subject to which the law relates'.

54 In my view, the offence created by reg 11(3) is not inconsistent with the coexistence of a defence that includes a requirement of reasonableness. The focus of the comments made by Brooking J in Kearon v Grant was on the subject matter of the law, rather than the implied provisions of the law relating to the subject. Further, s 24 has been held to apply to offences such as dangerous driving: Kaighin v The Queen (1990) 1 WAR 390; McPherson v Lucas [2008] WASCA 56 and Heckingbottom v Kell [2013] WASC 208. If the defence did not apply to speeding offences for public policy reasons, as Brooking J suggested in Kearon v Grant, it would be expected that it would not also apply to other serious traffic offences such as dangerous driving - and see also, Wroblewski v Starling [1987] WAR 233; Ottobrino v Espinoza (1995) 14 WAR 373 and Cook v Commissioner of Police (Qld) [2012] QCA 118; (2012) 220 A Crim R 444 (s 24 applied to the offence of driving a motor vehicle without a licence). A defence based solely on a mistaken belief might well be incompatible with the offence of speeding but a defence that requires reasonableness is not, in my view, necessarily incompatible notwithstanding the mischief to which the offence is directed.

55 The requirement of reasonableness also addresses, I think, the concern expressed by Brooking J concerning human ingenuity and the risk that accused persons may be able to rely on fabricated or unmeritorious 'mistakes'.

56 Insofar as the decisions in Kearon v Grant, Hearn v McCann and Vandenbergh v Police suggest a different conclusion, that difference might be explained by the context in which the relevant offence creating provisions fall to be construed - at common law, in the context of the doctrine of mens rea; in this jurisdiction, in the context of ch V of the Criminal Code, including s 36 (and see Leichhardt Municipal Council v Hunter [2013] NSWCCA 87; (2013) 83 NSWLR 637 and Hawthorn (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120 in which the New South Wales Court of Appeal explained the approach to determining whether offences are offences of strict or absolute liability at common law).

57 Regulation 40(1) of the Code provides that 'if a traffic control signal facing a driver displays a circular red signal then, subject to reg 42 and reg 43, if there is a stop line at or near the signal, the driver shall stop as near as practicable to, but before reaching, the stop line and shall not proceed beyond the stop line'. The elements of the offence created by the regulation are that:

(a) the accused person was the driver of the vehicle;

(b) the traffic control signal facing the driver was displaying a circular red signal; and

58 The qualifications contained in reg 42 and reg 43 are not relevant to the circumstances of the offence allegedly committed by the appellant. However, the provisions of reg 41 are relevant in light of the appellant's submissions.

(1) If a trafficcontrol signal facing a driver displays a steady circular yellow signal or a yellow arrow, the driver shall not proceed beyond the stop line associated with the signal or the stop line of the lane associated with the signal or in the absence of a stop line, at a point adjacent to the nearest appropriate trafficcontrol signal, unless the driver is so close to the stop line, or trafficcontrol signal, when the circular yellow signal or yellow arrow first appears, that the driver cannot safely stop the vehicle before passing over the stop line.

(2) If a trafficcontrol signal facing a driver displays a steady circular yellow signal or a yellow arrow and the driver cannot safely stop the vehicle in accordance with subregulation (1), but can stop safely before entering the intersection, the driver shall stop before entering the intersection.

(3) If a trafficcontrol signal facing a driver displays a steady circular yellow signal or a yellow arrow and the driver is not able to stop safely under subregulation (1) or (2), and enters the intersection, the driver shall leave the intersection as soon as the driver can do so safely.

60 The appellant did not dispute that she had driven her vehicle through a red light. The point that she made was that she had exercised a judgment in driving deliberately through the light in the belief that she would have difficulty stopping because the road was wet. However, that fact does not provide the appellant with a possible defence. Regulation 40(1) has been drafted on the obvious and necessary assumption that it is never safe for a driver to enter an intersection against a red signal. Regulation 41 recognises that a driver may be required to exercise a judgment on being confronted with a yellow signal. However, the time allowed by the yellow signal is deemed to be sufficient for a driver to exercise the required judgment about what is the safest course of action; that is, a driver will have had sufficient time to stop at the stop line if he or she drives through a red signal.

61 I have concluded for the reasons that have been given that the appellant should not be given leave to appeal on either of her proposed grounds of appeal. Although the first ground of appeal raised a question that has not been previously determined, the appellant did not have real prospects of succeeding on that ground having regard to her evidence and submissions on the circumstances in which the offences were committed: refer Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.