Criminal law - Appeal against decision of magistrate - Road traffic offence - Whether grounds have any reasonable prospect of success - Turns on own facts

Criminal Appeals Act 2004 (WA), s 10(3)

National Measurement Act 1960 (Cth)

Road Traffic Act 1974 (WA), s 98A

1 ALLANSON J: The appellant Lee Glenyse Bond was convicted of exceeding the speed limit by not more than 9 km per hour. She was fined $75. Ms Bond seeks leave to appeal from the conviction. Ms Bond represented herself at trial and again on appeal.

2 The appeal notice was filed just over a month after the 28 day period in s 10(3) of the Criminal Appeals Act 2004 (WA) had expired. Ms Bond says she was late because of a delay in obtaining transcript. I am satisfied that I should extend time to commence the appeal.

3 The application for leave was heard at the same time as the appeal, and I heard full argument on all grounds. For the reasons which follow, I am not satisfied that any of the grounds of appeal has reasonable prospects of succeeding and leave should be refused on all grounds.

4 In December 2011, Ms Bond was served with an infringement notice. The particulars on the notice alleged that the date of offence was 14 September 2011; the place of the offence was Ranford Road Canning Vale, near Waratah Boulevard; and the time of the offence was 4.36 pm. The speed allowed in that area was 70 km per hour and it was alleged Ms Bond was driving at 78 km per hour.

5 Ms Bond elected to contest the infringement notice.

6 The principal evidence against her was from Mr Enoch Felix Liu. Mr Liu is certified as an authorised person within the meaning of s 98A(1)(b)(ii) of the Road Traffic Act 1974 (WA) and is competent to use the Vitronic PoliScan Speed M1 speed measuring equipment. He produced his certificate. The Vitronic PoliScan Speed M1 is approved equipment for ascertaining speed under s 98A: a notice of the approval was published in the Government Gazette of 10 December 2010. A copy of the Gazette was tendered. In everyday terms, the Vitronic PoliScan Speed M1 is a speed camera, and that is how it was referred to in the trial.

7 Mr Liu said that before leaving to set up the camera he tested it. It tested correctly. He set it up on Ranford Road, 100 m south east of Waratah Boulevard to measure traffic travelling northwest. At the end of the shift he again tested the unit and again it tested correctly. He said that Ms Bond's vehicle was doing 79 km per hour. The vehicle was photographed by the camera and the photograph shows the registration number 1 BJM 727.

8 Mr Liu was crossexamined by Ms Bond. She asked if he could produce 'the certificate of calibration, maintenance, specifications and the schematics' of the camera that he used. Mr Liu said he did not have it. In response to other questions from Ms Bond, Mr Liu said that he had set up a camera in that area only a few times over 12 months; he put the camera in and out of his vehicle at least six times on the day of the offence; the traffic was medium; and his vehicle was parked within five to six metres of the camera.

9 Ms Bond showed him a photograph and asked if he could show where he set the camera and Mr Liu replied: 'I can't tell. I don't know what's the location of this photo'. The photograph shown to Mr Liu did not become part of the evidence.

10 Ms Bond gave evidence. She said that she travelled that route regularly every week at the same time. At 4.36 pm, it was peak hour, and not medium traffic.

11 The substance of Ms Bond's evidence was that she disputed that the camera was placed about 100 m from Waratah Boulevard. She said there is nowhere Mr Liu could have placed the camera at that distance, and nowhere he could have parked a vehicle five or six metres away from the camera. Ms Bond said the photograph of her vehicle showed that the camera was only about 60 m from the traffic lights at Waratah Boulevard, and near the beginning of a turning lane. She did not say what speed she was doing but the effect of her evidence was that she would not have been travelling at 78 km per hour, that close to traffic lights, and in peak hour traffic.

12 Ms Bond called her husband as a witness. She asked him: 'How far, approximately, was the area we believed the camera was set up from the traffic lights on Waratah Boulevard?' He replied, 'It was over 100 metres'. Later she asked again 'When we measured the distance between the traffic lights and where we believed the camera operator set up the camera, where we believed he set it up, how far was that from the traffic lights just past that bus shelter?' He replied 'It was 160 metres'. Undeterred, Ms Bond tried again. She asked if there were any cleared areas, where one could park a vehicle. Mr Bond agreed there was only one, but could not give the distance from the traffic lights other than it was 'a fair distance down'.

13 Ms Bond said in her submissions on appeal that these answers were the result of her husband misunderstanding the questions. The magistrate did not rely on them.

14 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.

15 Accordingly, Ms Bond had an evidential burden of displacing or rebutting the presumption that the reading of 79 km per hour, from the speed camera used by Mr Liu, was an accurate record of the speed of her vehicle.

16 Ms Bond sought to satisfy that burden by the evidence about the position of the camera. She also wished to question the reliability of the camera. Here she was frustrated, because she was relying on information she had obtained from the internet and other places. She believes that information throws doubt on the evidence from the camera operator, but she did not have evidence to support her belief. Specifically, she wished to raise:

(1) whether the machine had been properly calibrated by an independent person, and when;

(2) the 'well known fact' that speed cameras can be triggered by metal objects such as street signs and car aerials;

(3) the possibility of the camera being dropped or knocked on the several occasions Mr Liu moved it in and out of his vehicle, affecting its calibration;

(4) the flaws and technical errors in the manual for camera operators;

(5) the adequacy of the training for authorised persons; and

(6) the effect of temperature on the operation of the camera when it had been in the sun all day.

17 The magistrate found the charge proved. On the evidence before him, the magistrate could only have arrived at the verdict that he did. It was open to Ms Bond to introduce competent evidence bearing on the question of whether she was guilty: s 98A(5). None of the evidence she put forward was capable of throwing any doubt on the accuracy of Mr Liu's evidence of the speed at which her vehicle was moving, as ascertained by the equipment. Ms Bond gave no evidence of the speed she was travelling and relied on the argument that she would not have been travelling at the speed alleged because of her driving habits, the time, the traffic, and the proximity to the traffic lights. None of that was capable of displacing the evidence of her speed. There was no evidence upon which the magistrate could have entertained a doubt that the equipment had not been properly tested or that it might not have operated accurately.

18 Ms Bond applies for leave to appeal on 10 grounds. The grounds are cryptic and in some cases merely stating a topic rather than identifying the error. It was possible, however, to understand the nature of her complaints. The grounds can conveniently be dealt with in groups.

19 Ground 1 stands alone. Ms Bond complains 'Magistrate accused me of giving my witness information given by the camera operator'.

20 The ground relates to an exchange between the magistrate and Ms Bond when her husband was giving evidenceinchief. Ms Bond asked him where the camera was, in relation to the traffic lights. She qualified the question by saying 'not what the camera operator said; how far we measured it'. The magistrate then asked how Mr Bond could know what the camera operator said unless he was in court when Mr Liu gave evidence. There was an order for witnesses out of court. His Honour then said 'you've just suggested to him something about what the camera operator said, but you husband was not in court when the camera operator gave evidence so how can that mean anything to your husband?'

21 Ms Bond says that, after that exchange, she thought the magistrate was impatient with her. The transcript does not show that the magistrate accused Ms Bond of anything, but that he was trying to ensure the questions were put in a proper form. He asked her to rephrase the question, and she did. Ms Bond may have misunderstood what the magistrate was intending, but that does not establish error. I am not satisfied that any error has been shown.

22 In these grounds, Ms Bond says the magistrate erred in that:

1. the magistrate wanted her to produce the camera operator's manual to prove her claim (ground 2);
2. the camera operator calibrated the camera, when it should have been done by an independent person (ground 4);
3. the camera operator did not produce a calibration certificate (ground 6);
4. the temperature of the camera was not taken into account (ground 10).

23 These grounds are related in two ways. First, they arise out of Ms Bond's belief that it was wrong to act on the evidence of Mr Liu because of possible errors in the calibration or operation of the camera. Second, they assert matters where the magistrate held that Ms Bond needed to call evidence to support the claims she was making. In this, the magistrate was correct.

24 The manual for camera operators was not the subject of any evidence. When she was addressing the magistrate Ms Bond asserted the manual 'has many technical flaws in it. It's got a lot of technical errors'. Later, in her address she argued that the cameras are supposed to be calibrated by an independent person, and 'I know that the police know because they've got the manual'. When the magistrate reminded her that he could only act on evidence, Ms Bond complained 'it would have to be documented in their manual, and the public don't have access to that manual'. The magistrate, correctly, advised her that he had to base his decision on evidence and there was no evidence to support her assertion.

25 The reference to the temperature was also raised only in Ms Bond's final address. She argued that the machine must heat up being in the sun all day, 'and there's nothing to say that that machine can operate under a specific temperature'. The magistrate reminded Ms Bond that he could only act on the evidence, and that there was no evidence before him to support what she was saying. The magistrate also said, correctly, that her assertions that the operation of the camera was affected by temperature or metal objects were matters requiring expert evidence.

26 The argument regarding calibration was not fully developed, either before the magistrate or on appeal. The magistrate referred to Radalj v Taylor (1997) 26 MVR 11, in holding that s 98A(3) applied and the camera was not required to be certified under the National Measurement Act 1960 (Cth). The effect of the Commonwealth Act in relation to similar legislation has been considered in several other Australian jurisdictions, most recently in Macdonald v County Court of Victoria [2013] VSC 109. In Pearce v Dennis [1997] QCA 239 (a case on breath analysing equipment) the court held that where it is not proved that equipment has been calibrated under the National Measurement Act 1960, that does not mean the equipment is defective or not operating properly. It means there is no evidence at all on those matters.

27 In the present case, there was no evidence to counter Mr Liu's evidence that he tested the camera before and after using it and, more significantly, no evidence to displace the effect of s 98A(3). Ms Bond's beliefs, based on what she had read on the internet, were not a substitute for evidence.

28 None of grounds 2,4, 6 or 10, is reasonably arguable.

1. the camera operator did not recognise the position of the camera set up when she showed him a photograph of the area (ground 3);
2. the infringement photograph shows the position of the camera, closer to the traffic lights (ground 7);
3. the camera operator's car was parked behind a brick wall, and not parked near the camera (ground 8); and
4. reaction time due to stopping (ground 9).

30 These grounds are related as they all are directed to Ms Bond's primary argument at trial that the camera was positioned only 60 m from the traffic lights, and she would not have been driving at more than 70 km per hour in traffic that close to the lights.

31 The magistrate did not make any finding about whether the camera was 60 m or 100 m from the intersection, or whether Mr Liu was parked behind a wall. He held that Ms Bond's evidence was not sufficient to displace the evidence of her speed, ascertained by the use of the camera. He referred, specifically, to the absence of any evidence as to the actual speed at which she was driving to contradict the evidence of Mr Liu.

32 In my opinion, in the absence of any other evidence about the speed of Ms Bond's car, the magistrate was correct to apply s 98A(3) and find that she was driving at the speed alleged.

33 In the course of the trial, the registration number of Ms Bond's vehicle is transcribed consistently, but incorrectly, as 1VJM 727, rather than 1BJM 727. This occurs from the first occasion when the charge was read to her. I am satisfied this is nothing more than a transcription error. The correct registration appears on both the prosecution notice and the photograph produced by the camera. The error in transcription is no basis for an appeal.

34 I will extend the time for bringing the appeal. No arguable case has been put forward in support of any ground of appeal. Leave to appeal is refused on all grounds. The appeal is dismissed.