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[2017] WASC 261
General information, not legal advice.
Supreme Court of WA
2017-09-04
Jenkins J
Original judgment source is linked above.
1 JENKINS J: This is an appeal from the decision of a magistrate sitting in the Magistrate's Court at Fremantle on 1 December 2016 to convict the appellant of exceeding the speed limit.
2 The grounds of appeal contained in the appeal notice are:
3 On 8 February 2017, the appellant lodged an amended appeal notice which contained the following grounds of appeal:
4 The grounds of appeal contained in the appeal notice are repeated and expanded on in the grounds of appeal (2) (7) which are contained in the amended appeal notice. The grounds of appeal (1), (8) and (9) contained in the amended appeal notice are new.
5 The appellant requires the leave of the court to add a ground of appeal: Criminal Appeals Act 2004 (WA) s 40(1)(k).
6 On 28 March 2017, Martino J ordered that the appellant's application for leave to appeal and the application to amend the grounds of appeal in terms of the amended appeal notice would be heard with the appeal.
7 The respondent objects to the appellant being granted leave to add new grounds of appeal on the basis that the amended grounds of appeal have no reasonable prospect of success.
8 The appellant also requires leave to appeal on each of the original grounds of appeal. If a ground of appeal, whether contained in the original appeal notice or the amended appeal notice, has reasonable prospects of succeeding, I ought to grant leave to appeal on that ground. Therefore, it is necessary for me to consider the merits of each proposed ground of appeal before I decide whether to grant leave to add that ground of appeal, where relevant, and then to grant leave to appeal on that ground.
9 Despite being advised of the dated and time for the hearing of the appeal both orally, by Martino J, and in writing, by Listings, the appellant failed to appear at the hearing before me on 24 July 2017.
10 I determined that I would hear the appeal in the appellant's absence and grant her leave to file further written submissions within 14 days.
11 The appellant subsequently advised the court that she made an error in thinking that the hearing date was 28 July, as opposed to 24 July. She has filed further written submissions dated 7 August 2017, and I have taken them into account.
12 On 18 July 2016, the respondent lodged a prosecution notice FR7409/2016 which alleged that the appellant, on 28 January 2016, at Spearwood Avenue, Bibra Lake, exceeded the speed limit between 10 km and 19 km per hour, contrary to the Road Traffic Code 2000 (WA) s 11(3).
13 The indorsements on the prosecution notice indicate that on 19 September 2016, the charge was dealt with in the absence of the appellant. The appellant was convicted and fined $250.
14 On 3 October 2016, the appellant attended court and applied to set aside the conviction. That application was granted and the matter was adjourned to 1 December 2016 for trial.
15 On 1 December 2016, the appellant, who was selfrepresented, appeared for trial. At the conclusion of the trial, the magistrate convicted the appellant, imposed a fine of $300 and costs of $188.
16 At the commencement of the trial, the prosecutor tendered a certificate issued pursuant to the Road Traffic (Administration) Act 2008 (WA) (RTA Act) s 110(3) which stated that as at 28 January 2016, the black 2014 Toyota Kluger station sedan identified by the plate number 1EON 947 was licensed to Jayne Amelia Copeland, the appellant, whose current address was 12 Ninghan Lookout, Beeliar, Western Australia, 6164 with an acquisition date of 19 December 2014 and a vehicle licence expiry of 18 March 2016.
17 The RTA Act s 110(3) states that such a certificate may be issued. Section 110(4) states that in a prosecution for an offence under any written law, a certificate issued under subsection (3) is evidence of the facts stated in the certificate and, in particular, a certificate issued under a law of a State of the Commonwealth which states that on a specified date a vehicle was registered in the name of a specified person is evidence of the facts stated in the certificate.
18 The first witness called by the prosecution was Mr Anthony D'Adamo. Mr D'Adamo gave evidence that:
(1) he was a camera operator employed by the WA Police;
(2) he was an authorised person under the RTA Act s 117 and was 'competent to use' the VITRONIC PoliScan Speed M1 (VITRONIC M1);
(3) the VITRONIC M1 is an approved apparatus for ascertaining the speed of a moving vehicle;
(4) on 28 January 2016 at the commencement of his shift, he tested the VITRONIC M1 camera unit 641583 (the speed camera) on the test range and it tested correctly;
(5) at 6.00 am on Spearwood Avenue, Bibra Lake, near Port Kembla Drive, he checked that there was a 60 km per hour speed sign 200 m before the position he set up the speed camera and a 60 km per hour speed sign 400 m after the speed camera;
(6) he parked on the side of the road and measured the lane widths and checked the height of the speed camera. He entered those measurements into the software on the speed camera;
(7) he then took a few test shots of vehicles to show that the speed camera was reading correctly;
(8) he took a shot using the speed camera of a vehicle with the number plate 1EON 947 doing 74 km per hour in a 60 km per hour speed zone;
(9) he reviewed the photo and confirmed that the vehicle was speeding;
(10) he entered the enforcement at approximately 10.30 am; and
(11) at the end of his shift, he did another test of the speed camera and it tested correctly.
19 The prosecutor tendered a certificate which stated that Mr D'Adamo had been certified by the Commissioner of Police as an 'Authorised Person' within the meaning of the RTA Act s 117 and was 'competent to use' the VITRONIC M1. The certificate was relevant to the prosecution as the RTA Act s 117(4) states:
In a prosecution for an offence under any written law 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 that vehicle was moving at the time of the use of that equipment in relation to that vehicle.
20 Section 117(1) defines 'authorised person' to mean, in relation to speed measuring equipment, a person certified by the Commissioner of Police as being competent to use the equipment.
(1) an extract from the Western Australian Government Gazette, No 105 (22 June 2002) 2808 which contained a notice made by the Minister for Transport under the Road Traffic Act 1974 (WA) (RT Act) s 98A(2) which approved as a type of laser apparatus for ascertaining the speed at which a vehicle is moving, an apparatus that bears the name VITRONIC PoliScan Speed M1; and
(2) various photographs which Mr D'Adamo said showed the speed camera 'shots' of the vehicle 1EON 947 doing 74 km in a 60 km per hour zone. The photographs show a black SUV style motor vehicle from the rear. In a number of the photographs the number plate is blurred, but in one of the photographs it is just recognisable as 1EON 947.
22 In crossexamination, Mr D'Adamo said that he did not use the speed camera with an operating manual. He said that he had been trained by VITRONIC. He said that he would know if the speed camera was not working because it would not give a speed reading.
23 Ms Copeland asked Mr D'Adamo whether he followed 'the Australian standards'. Her Honour asked Ms Copeland what she was referring to and the appellant said that she would 'just find the section' she was looking for. However, she never identified the 'section'.
24 At this juncture her Honour told the appellant of the terms of the RTA Act s 117(4) and said that if the appellant wanted to displace the prima facie evidence of the speed at which the vehicle was moving she had to 'come up with some cogent or persuasive evidence to the contrary'.
25 The appellant then continued her crossexamination of Mr D'Adamo. Mr D'Adamo conceded that the number plate of the vehicle shown in the exhibited photographs was not clear. He said that he had a digital copy and that he had checked the photo and the plate number he had given was the correct plate number for the vehicle in the photographs. He denied that it could be another number plate.
26 The appellant asked Mr D'Adamo to describe the checks that he did when he set up the speed camera. He described the testing process. The appellant asked him to point out where in the procedure manual the instructions were given to complete the testing process. There was an exchange between the prosecutor and her Honour and the appellant in which the appellant was reminded that the witness did not have the procedure manual with him in court.
27 In response to questions put to him in crossexamination, Mr D'Adamo said, relevantly:
(2) the infringement management office (IMO) rounded the registered speed of a vehicle down by 1 km an hour if the registered speed was below 100 km per hour;
(3) although the photographs tendered in evidence showed a vehicle which could have been stationary, the vehicle shown in the photographs was not stationary;
(4) he worked for the Western Australian Police Department;
(5) when the photographs of the car where taken, he was on the verge on the other side of the road;
(6) the speed camera was calibrated on 2 December 2015;
(7) the range tests which he did at the commencement of his shift and at the end of his shift were done at the IMO in Midland.
28 The respondent's second witness was Senior Constable Robin Williams, then attached to the IMO at the State Traffic Command in Midland.
29 Senior Constable Williams gave evidence that on 28 January 2016, he looked at incoming infringements. A traffic infringement notice was issued to the registered owner, Jayne Copeland, in relation to vehicle with a registration number plate of 1EON 947.
30 The RTA Act s 79 states that a police officer who reasonably believes that a person has committed an offence under a road law that is prescribed for the purpose of s 79 may serve on that person an infringement notice, which informs them that if they do not wish to be prosecuted for the alleged offence in a court, they may pay to the officer, within the specified time, the amount of the prescribed penalty for the offence. This offence of exceeding the speed limit under the Road Traffic Code s 11(3) is prescribed by the Road Traffic (Administration) Regulations 2014 (WA) reg 24 as a road law that is prescribed for the purposes of the RTA Act s 79.
31 The RTA Act s 82 provides that if a person who receives an infringement notice declines to pay the modified penalty within the specified time, then the person is to be taken to have declined to be dealt with under the provisions of the Act relating to infringement notices and modified penalties.
If
(a) an offence for which an infringement notice may be given and of which the driving ... of a vehicle is an element is alleged to have occurred; and
(b) the belief mentioned in section 79 is based on photographic evidence; and
(c) the name and address of the driver or person in charge of the vehicle are not known and cannot immediately be ascertained; and
(d) the identity of the vehicle can be ascertained from the photographic evidence; and
(e) a responsible person for the vehicle is an individual,
an infringement notice for the alleged offence may be addressed to the responsible person and may be served on the responsible person, personally or by post.
33 The RTA Act s 4 states that a 'responsible person', for a vehicle means a person responsible for the vehicle under the RTA Act s 6. Section 6 states that a person responsible for a vehicle is, if the vehicle is licensed, as this vehicle was, any licence holder who has not given a notice of change of ownership. A 'licence holder' in relation to a vehicle is defined to mean a person in whose name the vehicle is licensed. In this case that was the appellant.
34 Senior Constable Williams testified that the appellant had sent correspondence back to the office but had not complied with the RTA Act s 94.
If an infringement notice enclosing photographic evidence is served on a responsible person under section 91 ... the responsible person is to be presumed to be the driver or person in charge of the vehicle at the time of the offence alleged in the notice unless, within the period for complying defined in section 90 -
(a) the penalty prescribed under section 79 for the alleged offence is paid; or
(b) the responsible person informs an officer specified in the notice that the responsible person was not the driver or person in charge of the vehicle at the time of the alleged offence and supplies to the officer -
(i) the name and address of the driver or person in charge of the vehicle at that time; or
(ii) information showing that the vehicle was stolen or unlawfully taken or used at that time; or
(iii) a statutory declaration that the responsible person did not know, and could not reasonably have ascertained, the name and address of the driver or person in charge of the vehicle at that time.
36 In crossexamination, Senior Constable Williams confirmed that he had with him a copy of a letter which the appellant had sent in response to the service of the infringement notice. He said that a reply had not been sent to her because the process was that she either complied with the RTA Act s 94 and/or elected for the matter to go to court.
37 At the conclusion of Senior Constable Williams' evidence, the respondent closed the prosecution case.
38 The appellant gave evidence in her defence. The appellant testified that she did not know if she was the driver of her car, which she did not dispute was a black Toyota Kluger registration number 1EON 947, on the day in question. She said that she lent her car 'quite frequently to friends and family'. Later in her evidence she said that she quite often lent her car to her husband and her sister. She said that there was no clear visual photo of who the driver was and the number plate of the car in the photographs was blurry. She also said that it could not be established what speed her vehicle was doing.
39 The respondent elected not to crossexamine the appellant.
40 In closing submissions, the appellant said that on 28 January 2016, at 9.12 am a stationary vehicle with an unidentified number plate was believed to be on Spearwood Avenue Bibra Lake. She submitted that Mr D'Adamo could not answer questions in relation to how the speed of the vehicle was determined. She submitted that the evidence of its alleged speed was hearsay. She said that there was no proof that the car shown in the photograph, with the blurry number plate, was the vehicle that the prosecution alleged was her vehicle.
41 The appellant also complained that there was no operation manual for the speed camera. She said that it was not possible for the magistrate to find that it was her vehicle that was speeding and, even if it was, that she was the driver on that day.
(1) Mr D'Adamo and Senior Constable Williams gave reliable evidence;
(2) Mr D'Adamo is an authorised person in relation to speed measuring equipment;
(3) Mr D'Adamo had commenced using the VITRONIC M1 at 6.00 am on the relevant morning at Spearwood Avenue, Bibra Lake, near Port Kembla Drive;
(5) the speed camera was set up within a 60 km per hour speed zone;
(6) the speed camera took a screen shot of the vehicle with the number plate 1EON 947, and recorded that it was doing a speed of 74 km per hour in a 60 km per hour zone;
(7) on 28 January 2016, Senior Constable Williams noted that the vehicle 1EON 947 was registered to the appellant;
(8) Senior Constable Williams issued a traffic infringement notice to the appellant in respect of the vehicle;
(9) the certificate evidence issued under the RTA Act s 110(3) is prima facie evidence that as at 28 January 2016, a black 2014 Toyota Kluger station sedan with the number plate 1EON 947 was licensed to the appellant; and
(10) the appellant had sent correspondence back to the IMO but that she had not complied with the RTA Act s 94.
43 The magistrate referred to the appellant's evidence that she did not know if she was the driver of the Toyota Kluger on the relevant date, that the number plate shown in the photographs is blurry and that the speed of the vehicle at the time the photographs were taken could not be established.
44 The magistrate found that Mr D'Adamo's evidence as to the speed of the vehicle did not need to be supported by any evidence as to the accuracy of the speed camera. The magistrate found that the evidence established the speed of the vehicle at a prima facie level. She noted that the burden was on the appellant to adduce evidence capable of displacing the prima facie effect of the prosecution evidence. In other words, the magistrate said that, in light of the prosecution's prima facie case, the onus was on the appellant to prove on the balance of probabilities, by adducing cogent evidence, that the speed of the vehicle did not exceed 60 kmph speed limit at the relevant time.
45 She found that the appellant's evidence and submissions were not sufficiently cogent to discharge the onus which the appellant bore. The magistrate found that the speed of the vehicle being the black Toyota Kluger registration number 1EON 947, at the relevant time was 74 km per hour in a 60 km per hour speed zone.
46 The magistrate found that, as the registered owner of the vehicle, the appellant was the responsible person and that she had failed to fulfil the requirements of the RTA Act s 94. Thus, the magistrate said that the appellant was presumed to be the driver or person in charge of the vehicle at the time of the alleged offence. The magistrate found beyond reasonable doubt that the appellant was the driver of the vehicle registered 1EON 947 on 28 January 2016 at the time of the offence. The magistrate proceeded to find the appellant guilty and convicted her of the charge.
47 The appellant's written submissions do not address these grounds of appeal.
48 The Magistrates Court Act 2004 (WA) (MC Act) s 33 provides that a party to a case in the Magistrates Court may obtain a copy of, or inspect, certain court records, on request. The MC Act s 33(4) provides that with the leave of the Magistrates Court a party may listen to any electronic recording of the proceedings in a case, and obtain a copy of all or part of such a recording. There is no evidence that the appellant has applied for access to the audio recording of any 'mention prior to trial' of the charge. Even if she had and it had been refused, such a refusal would be irrelevant to this appeal unless something occurred at the mention which meant that the trial miscarried. The appellant has not made such an allegation.
49 The Criminal Procedure Rules 2005 (WA) reg 43, referred to in amended ground of appeal 2, does not apply to prosecutions in the Magistrates Court.
50 Again, these grounds of appeal are not specifically addressed in the appellant's written submissions.
51 There was an obligation on behalf of the respondent to adduce evidence to prove the elements of the offence. There was no obligation on behalf of the respondent to file affidavits or written submissions in order to prove the elements of the offence.
52 The appellant's written submissions allege that the magistrate 'appeared to be guiding' the prosecutor and 'assisting the witnesses by practicing law from the bench'. Consequently, the appellant submits that she did not receive a fair trial.
53 I will assume that the appellant alleges apprehended bias, as actual bias is much more difficult to prove and there is no evidence which supports a finding that the magistrate was actually biased.
54 The test to be applied in determining whether a judicial officer is disqualified by reason of the appearance of bias is whether a fairminded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question the judicial officer is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11].
55 The transcript of the trial does not show that the magistrate guided the prosecutor in any relevant way. Neither did the magistrate assist the witnesses to give their evidence.
56 The magistrate attempted to assist the appellant by advising her of various matters such as the protocols for asking questions and making submissions, the form which questions could take, the requirement that a question include only one matter and of the statutory and legal principles within which the magistrate was required to determine the charge. It is regrettable if the appellant interpreted the magistrate as being biased. However, after perusing the whole of the transcript, I am satisfied that a fairminded lay observer would not reasonably apprehend that the magistrate might not bring an impartial and unprejudiced mind to the resolution of the charge. The magistrate had a duty to ensure that the trial proceeded according to law and that the court's time was not wasted by, for example, improper and irrelevant questions and the raising of irrelevant issues. I perceive that that was all the magistrate was attempting to ensure in this case.
Grounds of appeal 4 and 6/amended grounds of appeal 5 and 7
57 These grounds of appeal raise issues about the extent of the magistrate's interference in the presentation of the parties' cases.
58 The magistrate was entitled to ask questions of the witnesses, whether they be prosecution witnesses or the appellant, to clarify evidence. As the appellant was unrepresented, it was particularly important for the magistrate to ensure that the prosecution evidence was clear and easily able to be understood by the appellant. It was also important for the magistrate to prompt the appellant to give relevant evidence.
59 I have examined the transcript and have satisfied myself that the magistrate did not act improperly in asking questions of any witness, including the appellant.
60 It was appropriate for the magistrate to make rulings in relation to evidence. This was to ensure that irrelevant and inadmissible evidence was not adduced and to ensure that the issues raised in the trial were all relevant to the determination which the magistrate was required to make. Again, I have examined the transcript and satisfied myself that the rulings made by the magistrate did not exceed what was proper.
61 The magistrate's questions of the appellant were limited to asking her name and occupation. There was an exchange between the magistrate and the appellant because the appellant refused to acknowledge her name. The magistrate was entirely justified in requiring the appellant, who was then a witness, to give her name to the court. She then invited the appellant to give the evidence which she wished to give and directed her to the relevant subjectmatter of any evidence. She did not crossexamine the appellant. It was entirely appropriate for the magistrate to proceed in this way.
62 It was the prosecutor's choice as to whether she crossexamined the appellant or not and she declined to do so.
63 The appellant's written submissions allege that Mr D'Adamo appeared to be preventing and perverting the course of justice by withholding evidence and failing to respond to 'requisitions' during crossexamination. There is also a complaint that he submitted unclear evidence and photographs to the court.
64 I have summarised Mr D'Adamo's evidence. It is correct that the photographs tendered to the court show a vehicle with a blurred number plate, which is only just recognisable as 1EON 947 in one photograph. However, that evidence was supported by the oral evidence of Mr D'Adamo who said that he had examined the digital photographs and satisfied himself that the number plate of the car was 1EON 947. There was no evidence to the contrary and no call to the respondent to produce the digital photographs. The magistrate was entitled to rely upon the combination of Mr D'Adamo's oral evidence and the photographic evidence.
65 The appellant made some attempt to crossexamine the prosecution witnesses about documents which they either did not have in their possession, they were not familiar with or she did not identify with sufficient particularity. The prosecution witnesses appear to have answered the questions to the best of their knowledge. It is obvious from the transcript that the appellant was dissatisfied with their answers. However, given the limitations under which the witnesses were operating, being that they either did not have the relevant document, were not familiar with the documents, were not aware of the documents or were not experts in respect to matters covered by them, I am not satisfied that there was any attempt by the prosecution witnesses to pervert the course of justice by their answers. Indeed, it would have been an error for the prosecution witnesses to go beyond their own knowledge and to answer some of the questions put to them by the appellant.
66 Insofar as the appellant's complaint concerns the absence of the operations manual for the VITRONIC M1, it has been held that failure to follow the manufacturer's instructions for a speed measuring device (not that there was such evidence) will not render the evidence of the speed measuring device inadmissible: Davis v Armstrong (1993) 17 MVR 190, 192; Rumsley v Taylor (Unreported, WASC, Library No 970691, 10 December 1997).
67 Regardless of the skill of the authorised person or the manner of operation of the apparatus, the combination of the oral evidence, the certificates and the relevant statutory provisions resulted in there being prima facie evidence that the appellant's car exceeded the speed limit. There was an onus on the appellant to prove on the balance of probabilities that her car did not exceed the speed limit. One of the ways the appellant could have done that was by producing evidence that the speed camera was not operated correctly but she did not produce such evidence. There was no onus on the respondent to produce a procedure manual for the VITRONIC M1 or to prove that Mr D'Adamo operated the speed camera in accordance with a procedure manual in order to prove its case.
68 This ground of appeal does not appear to be addressed in the appellant's written submissions.
69 It is not clear to me whether the appellant's complaint is that she was not provided with sufficient assistance as a selfrepresented litigant or whether the magistrate intervened too much or inappropriately, given that the appellant was selfrepresented.
70 In either case, I have examined the transcript and have satisfied myself that the obligations on a magistrate when dealing with a selfrepresented litigant were satisfied in this case: Tobin v Dodd [2004] WASCA 288 [13] [14].
71 The transcript shows that the appellant had firm views on what she regarded as the deficiencies in the prosecution case. She did not understand how those perceived deficiencies could be remedied. In particular, she did not understand how the provisions of the RTA Act or RT Act may assist the prosecution to prove the elements of the offence in the absence of eye witness evidence that she (the appellant) was the driver of her motor vehicle at the relevant time and in the absence of eye witness testimony that it was being driven at a speed exceeding the speed limit at the relevant time. The magistrate attempted to assist the appellant to understand these matters. It was appropriate that the magistrate did this in order to ensure that the appellant understood the legal framework in which the magistrate was to determine the charge and to ensure that court time was not wasted. There was no error made by the magistrate.
72 I do not understand why the appellant alleges that the charge was a civil, as opposed to a criminal, offence.
73 The Road Traffic Code reg 11(3) provides that a person shall not drive a vehicle in a speed zone, at a speed exceeding, in kilometres per hour, as indicated by the numerals on the speed limit sign, at the beginning of the speed zone. Regulation 17 provides that the modified penalty for exceeding the speed limit between 10 and 19 km per hour is two penalty units.
74 The Road Traffic Code was made under the RT Act. In Waugh v Hodgson [2015] WASC 354 Beech J found that the Road Traffic Code reg 11(3) was a valid exercise of the power in the RT Act s 111(1) to make regulations for, among other things, 'the regulation of traffic, generally' [60]. I agree with his Honour.
75 The Road Traffic Code reg 9 provides that a person who contravenes or fails to comply with any of the provisions of the regulation, commits an offence. Regulation 9(2) provides that a person who commits an offence against the regulations is liable to a fine not exceeding 24 penalty units.
76 The Interpretation Act 1984 (WA) s 67 provides that offences are of two kinds and an offence not otherwise designated is a simple offence. Section 67(3) provides that the procedure for prosecuting and dealing with offences is set out in the Criminal Procedure Act 2004 (WA).
77 Thus, there is no doubt that a breach of the Road Traffic Code reg 11(3) is a simple offence which may be prosecuted in accordance with the provisions of the Criminal Procedure Act. The Magistrates Court Act 2004 (WA) s 11 provides that the Magistrates Court, in its criminal jurisdiction, has jurisdiction to hear and determine a charge of a simple offence, which is what occurred in this case.
78 To the extent that this ground of appeal appears to assert that the prosecution failed to establish a prima facie case, I am of the opinion that the magistrate was correct to find that the charge had been proved.
79 As stated by Corboy J in Binetti v Feasey [2015] WASC 93, the elements of the offence created by reg 11(3) are that:
(a) the accused person was the driver of the vehicle (see the definitions of 'drive' and 'driver' in the RT Act s 5);
(b) the thing being driven by the accused person was a vehicle (see the definition of 'vehicle' in the RT Act s 5);
(c) the accused person was driving a vehicle in a speed zone (see the definition of 'speed zone' and 'speed limit sign' in the Road Traffic Code reg 3); and
(d) the speed of the vehicle exceeded the speed limit for the speed zone in which the vehicle was being driven (see the RT Act s 98A on speed measuring equipment).
80 The evidence of Mr D'Adamo and the documentary evidence tendered through him, was prima facie evidence that a vehicle, being a black Toyota Kluger registration number 1EON 947 was driven on 28 January 2016 on Spearwood Avenue, Bibra Lake at 74 kmph in a 60 kmph speed zone.
81 After Senior Constable Williams had, in effect, given evidence that he had complied with the RTA Act s 91 and that the appellant had not complied with s 94(a), (b) or (c), the appellant as the 'responsible person' for the Toyota Kluger registration number 1EON 947, was presumed to be the driver of the vehicle at the time of the offence alleged in the infringement notice.
82 Thus, there was prima facie evidence of each of the elements of the offence.
83 The appellant's evidence was to the effect that she may not have been the driver because she had no recollection of the day and time and that she often lent her car to friends and relatives to drive. She did not say that she was not the driver, give an alibi for the time of driving or give the name of the driver. She did not dispute that she was the responsible driver for the vehicle or that she had failed to comply with the RTA Act s 94. Her evidence did not displace the presumptions which arose from the prosecution evidence.
84 I do not understand what this proposed ground of appeal means. The respondent's written submissions state that the respondent understands it as being aimed at the question of whether leave should be granted and whether the grounds of appeal can be said to have a real prospect of success. I cannot read the proposed ground of appeal so liberally. As I do not understand what it means it can have no prospect of success.
85 For the above reasons I find that none of the grounds of appeal or the amended grounds of appeal have reasonable prospects of success. Consequently, I order:
(1) leave to amend the notice of appeal to include the grounds of appeal in the amended appeal notice dated 8 February 2017 is refused;
(2) leave to appeal on the grounds of appeal in the appeal notice dated 28 December 2016 is refused; and
86 The respondent submits that if the appellant's appeal is dismissed, the appellant ought to be ordered to pay his costs in the sum of $4,959.
87 The appellant opposes an order for costs being made in favour of the respondent. She submits that $4,959 is an 'exorbitant' figure. She says it appears to be an attempt to 'extort money through legal fiction and imposing company policies that coursed (sic) demurrage'. I do not understand this submission and so I cannot give it any weight.
88 The appellant then repeats her complaint concerning Mr D'Adamo's oral evidence about the number plate of the vehicle photographed speeding.
89 The Criminal Appeals Act s 14(1)(h) provides that in deciding an appeal, the Supreme Court may, amongst other things, make an order as to the costs of the appeal. The general power to award costs conferred by s 14 is constrained by the Criminal Appeals Act s 20. However, s 20 does not apply to an application by a respondent police officer, as in this case, for costs incurred in responding to an offender appeal.
90 The general effect of the Criminal Appeals Act is to confer upon the court a general and unconstrained discretion with respect to the award of costs in relation to an appeal from a magistrate, unless the case comes within the specific provisions of s 20: Wilson v McDonald [2009] WASCA 39 (S). That general discretion should not be construed as importing a general rule to the effect that costs should ordinarily follow the event. Rather, except in the circumstances covered by s 20, the Act should be construed as conferring a general and unconstrained discretion with respect to costs, to be exercised by reference to all relevant circumstances, including any relevant aspect of the public interest: Wilson v McDonald [10].
91 The only public interest involved in this appeal, is the principle that the right of appeal conferred by the Criminal Appeals Act on a convicted offender should not be rendered nugatory by the risk of the offender being deterred from prosecuting a meritorious appeal out of fear of having a large costs order made against them, if the appeal is, unsuccessful. On the other hand, the appellant was entirely unsuccessful and the grounds of appeal relied on by the appellant are unmeritorious.
92 The respondent's costs of the appeal were increased by virtue of the appellant insisting, incorrectly, that the proper respondents to the appeal were the Commissioner of Police, in person, and the Western Australia Police, as an incorporated body. The respondent was required to file written submissions in relation to that matter and to appear at a hearing to respond to the appellant's position.
93 I know little about the appellant's financial position, despite inviting submissions in relation to costs from the appellant.
94 Given the history of this matter, it is in the interests of finality that I fix costs rather than order that they be taxed.
95 Taking into account all relevant matters, I exercise my discretion to order the appellant to pay the respondent's costs of the appeal fixed in the sum of $2,500.
(2000) 201 CLR 488
(1993) 17 MVR 190