Court of Appeal (WA)|2004-07-02|Before: Jenkins J

Illich v Woodburn [2004] WASCA 148 (2 July 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ILLICH -v- WOODBURN [2004] WASCA 148

MATTER : Justices Act 1902

Criminal law - Driving offence - Speeding - Evidence of multanova camera - Prima facie evidence of speed - Sufficiency of evidence to displace the prima facie accuracy of multanova - Honest and reasonable but mistaken belief as to speed

Matter remitted to another Magistrate to be heard according to law

Hijazi v Orr (1997) 26 MVR 266

Magden v Ashe (1992) 17 MVR 219

Perron v Seiler [2000] WASCA 145

Rumsley v Taylor (1997) 26 MVR 563

1 JENKINS J: This is an appeal from the decision of a Stipendiary Magistrate sitting in the Court of Petty Sessions at Perth on 15 January 2004 on complaint number 40642 of 2003, being of one count of driving a motor vehicle in excess of the speed limit. The Magistrate dismissed the complaint.

2 The appellant, being the complainant in the proceedings before the Magistrate, relies upon the following grounds of appeal:

(1) The learned Magistrate erred in law by failing to properly apply the Road Traffic Act 1974 (WA), s 98A(3) ("the Act");

(2) The learned Magistrate erred in law and fact by finding that s 24 of the Criminal Code could apply in the circumstances of the case.

"That on the 19th day of June 2003 at Wembley [the respondent] drove a vehicle, registered number GW1 on a road, namely Powis Street within a speed zone, where the numerals on the restricted sign at the beginning of the speed zone indicated a speed of 60 kilometres per hour, drove said vehicle at a speed in excess of that shown on the restricted sign, namely 84 kilometres per hour."

This charge was laid pursuant to the Road Traffic Code 2000 (WA), reg 11(3).

4 The respondent pleaded not guilty to the above charge. A trial ensued. The Magistrate was advised that the respondent admitted that he was the driver at the relevant time.

5 The only witness called by the appellant was the relevant speed camera operator who was certified as being competent to use multanova F6 speed measuring equipment and Custom Falcon hand held speed measuring equipment. The operator gave evidence that on 19 June 2003 he operated a multanova between 3.35 pm and 6.45 pm on Powis Street, Wembley, near Rawlins Street. He testified that prior to operating the multanova he tested a Custom Falcon radar using a tuning fork. He then used the radar and the multanova to ascertain the speed of an oncoming vehicle. When compared, the speed of the approaching vehicle was in accordance with the manufacturer's specifications that the multanova was accurate between plus and minus 1 kilometre per hour. The operator also successfully did this test at the end of his session. He produced two photographs taken by the multanova which he said showed the respondent's vehicle registration number GW1 travelling at 85 kilometres per hour in a 60 zone at 6.09 pm. The respondent was charged with travelling at 84 kilometres per hour to allow for the 1 kilometre per hour margin for error of the machine. In one of the photos two vehicles were shown travelling in adjacent lanes, one of these being the respondent's vehicle. The operator said that the relevant vehicle, being the respondent's vehicle, was the one that was between the "annotation notches" at the bottom of the photograph. The Magistrate found that this was the case and on my inspection of the photograph the operator's evidence and the Magistrate's finding were correct. I note that the Magistrate went on to say that the other vehicle was "not quite in the photograph". It may be true to say that not all of the other vehicle was in the photograph. On the copy of the photograph in the appeal book it is difficult to determine that fact. However, what it clear is that the other vehicle is wholly outside the "annotation notches".

6 The operator was cross-examined about his method of testing the multanova. The Magistrate found that he was not an expert but that he carried out his job properly in this respect. Importantly, he was also cross-examined about the possibility that the existence of the vehicle in the adjacent lane could have interfered with the operation of the multanova so as to give it a false reading in respect of the respondent's vehicle. At TS12-13 the following evidence was given by the operator:

"... isn't it possible the existence of that other car at the same spot, same time, same position, could have, in some way, thrown out the reading of the speed of the car on the left to some extent? - - - I don't believe so, sir. As I mentioned earlier about the annotation notches on the bottom of the photograph, that indicates that the photograph has been taken of the vehicle that has been identified as being above the limit.

But the annotation notch on the right-hand side, as you look at the photo is very, very near, if you extend the line to that car on the right, isn't it? - - -Yes, sir, it is, but as far as the actual unit itself is concerned, it's set up parallel to the raid (sic), the unit itself is called a slant radar. Now, the antenna that actually sends out the beam and picks up the speed of these vehicles is set on an angle of 22 degrees, so the beam is actually going across the road.

...

But isn't it fair to say, looking at that photo, that it's pretty well impossible to judge which car broke the beam first, isn't it? Because they're so - - such close proximity to each other? ---No, again, because of the fact that the unit - - sorry, the vehicle that's been photographed and the one that's been detected is the one that is actually between those two annotation notches.

...

But isn't it possible - - I know you say it's not likely, but isn't it possible that there's some error to the point where the beam has focused on the other car first and was reading the speed of the other car and not Mr Woodburn's car? I know - - I know it's - -you would say it's unlikely, but it's possible, isn't it?---Well, anything is possible but - -"

7 Prior to the evidence being given the operator had been asked whether it was possible for the multanova to malfunction. The prosecutor objected on the basis that the witness was not an expert. That objection was upheld to the extent that the Magistrate ruled that the witness was only able to give evidence as to matters which were within the witness' knowledge. The effect of the evidence was that the witness was unaware of problems with regard to the recording of speeds but he knew that batteries could go flat. He was also aware that the machines were recalibrated from time to time. It was not put to him either that the batteries were flat on this occasion or that the machine was not properly calibrated.

8 The respondent then gave evidence on his own behalf. He has held a driver's licence for 32 years and has no convictions for offences against the traffic laws. He testified that he drove home from work along this stretch of road every evening and was aware that the multanova was often positioned there. He said that he always drove through that area at or below 60 kilometres per hour. On the evening in question he was driving a Mazda MX5 which he had purchased, apparently new, in January 2001. He had not had any problems with the speedometer on that vehicle. As he drove along the relevant stretch of road at his normal speed he saw a flash, looked down at his speedometer and saw that it registered midway between 55 and 60 kilometres per hour. He was also aware that there was a vehicle next to him.

9 In cross-examination the respondent testified that, to his knowledge, his speedometer had never been checked. He also acknowledged that prior to seeing the flash he had not looked at his speedometer and did not know the speed at which he was travelling. Neither did he know the speed of the vehicle in the lane next to him. He said that he had looked at his speedometer in less than a second after he saw the flash and had not taken his foot off the accelerator.

10 After hearing submissions from the parties the Magistrate gave extempore reasons for his decision. He correctly stated the onus and burden of proof were on the prosecution. He said that the respondent did not have to do anything. He noted that the reading on the multanova was prima facie evidence "to say it's 84". He accepted that the respondent saw the flash of the multanova. He accepted that the operator had carried out his job properly.

"I think it comes down to this, really. Has the defence raised a doubt as to whether that other vehicle that's outside the notch, could the speed of that have activated the photograph? Against that I've got a prosecution witness who says that it's only vehicles between those two notches that activate it. My thought is you may even know a physicist to prove that. That 's my thought. You'd need somebody to tell you how it operated.

He says it's set up at 221/2 degrees or 22 degrees from the horizontal/parallel road, and the question I suppose - - and there's evidence been given by the defendant that his speedometer - - it's a car that 21/2 years old. He says it has its regular checks. Nothing has ever been mentioned about the speedo in the car, and so therefore I've got a reading on an ordinary car's speedometer as opposed to something that sets up prima facie evidence.

There is a case involving a lady who drank two glasses of white wine and she went over the limit and they called medical evidence and the court found that she'd upset the presumption of the instrument. There's another case that I've given - I don't know whether it's on appeal or not - where two or three fellows in a car said that they were doing a certain speed, and the Multanova said it was considerably more than that speed.

I've come to the conclusion that there is a problem with this - - the fact that there are two cars so close together in the photograph, and I've come to the conclusion that I have a reasonable doubt as to his honest and mistaken belief. I would have thought he had a belief that it was doing about that speed and that it was an honest belief certainly. I would have thought it's reasonable. He's had the car two years. I come to the conclusion that the charge should be dismissed because the prosecution haven't negatived to the required standard that the kerb lane car could have activated the camera flash. And so I dismiss the charge. Dismissed. Yes, thank you."

12 In summary, the respondent submitted that the Magistrate was justified in concluding that the charge had not been proved because multanovas are not always accurate. He said they could be influenced by outside factors such as other cars and the operator was not an expert and so could not refute the possibility that this had occurred in this case. He submitted that his evidence should have been relied upon, instead of the operator because he had looked at his speedometer immediately upon seeing the flash of the camera and there was no reason to think that his speedometer was faulty. He said that he believes the public are in a very disadvantageous position in cases such as this because of the Act, s 98A(3).

13 At the hearing of the appeal I permitted the respondent to hand up a newspaper article which reported that the Victorian government had returned millions of dollars in fines to drivers after tests revealed faulty readings from speed cameras.

14 As I told the respondent, there is little weight that I can give to the report as it is not direct evidence that the relevant multanova was faulty or inaccurate in its measurement of his vehicle's speed.

15 An appeal from a decision of a Magistrate sitting as a Court of Petty Sessions will not be allowed unless an error has been made by the Magistrate that is such as to demonstrate that a miscarriage of justice has occurred, or, that the proceedings were fundamentally flawed: Smith v R (1992) 7 WAR 527. There must be shown to be a link between any error made by the Magistrate and the final order made by the Magistrate.

16 The first ground of appeal concerns the proper application of the Act, s 98A(3) and (5) which state:

"(3) In any proceeding for an offence against this or any other Act or the regulations 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.

...

(5) Nothing in this section shall be construed as precluding or restricting the introduction of any competent evidence, whether in addition to, or independent of, any evidence for which provision is made by this section, bearing on the question of whether a person was or was not guilty of an offence against this or any other Act or the regulations."

17 These provisions were considered by Murray J in Davis v Armstrong (1993) 17 MVR 1900 at 192 where after quoting s 98A(3) his Honour said:

"The use of the term 'prima facie evidence' in that context, is a reference to evidence which will prove the fact in issue in the absence of further evidence from the other side. Such evidence not being forthcoming, the prima facie proof becomes conclusive proof and, in the context of a prosecution such as this, enables the complainant to discharge the onus lying upon him to establish beyond a reasonable doubt that the speed of the applicant's vehicle on the occasion in question, did indeed exceed the 90 kph speed limit contrary to the Road Traffic Code 1975 Regulation 1001(1)(b)."

"Section 98A(5) preserved the applicant's capacity to introduce 'competent evidence' bearing on the question of his guilt of the offence of speeding with which he had been charged, and so it would work in the following way. It was competent for the prosecution to proceed upon the basis of the evidence given under s 98A(3) that the speed measuring equipment in question was used by PC Armstrong in relation to the applicant's vehicle and of the reading of speed which it gave. To be admissible, in my opinion, that evidence did not require to be supported by any evidence as to the accuracy of the machine. That evidence established the speed of the vehicle at a prima facie level. If it remained unchallenged, at the end of the day it became evidence capable of establishing the speed of the applicant's vehicle beyond a reasonable doubt and that would be the inevitable conclusion in those circumstances.

The burden then fell upon the applicant to adduce evidence capable of displacing the prima facie effect of the prosecution evidence: Madgen v Ashe, unreported; SCt of WA (Ng C); Library No 920324; 17 June 1992. In other words the onus was thrown upon the applicant to prove on the balance of probabilities that his speed did not exceed the limit at the relevant time. He could do that by displacing the prima facie evidentiary effect of the speed measuring device by throwing doubt on its accuracy by establishing that it had not been properly tested, or that the circumstances were such that it might not have operated accurately exclusively with respect to the applicant's vehicle, or he could seek to displace the prima facie evidentiary effect of the speed measuring equipment by persuading the court of trial to accept evidence, either his evidence or that of other witnesses, to the effect that he was not exceeding the speed limit: Cazzol v Fuss, unreported; SCt of SA (O'Loughlin J); Judgment No 430; 22 January 1988."

19 I agree with his Honour's comments. Consequently, whilst the ultimate burden of proving the charge lies on the prosecution, at the point at which the evidence satisfies s 98A(3) the evidentiary burden passes to the defence to adduce evidence capable of displacing the prima facie effect of the prosecution evidence.

20 The second ground of appeal concerns the proper application of the Criminal Code (WA), s 24 ("the Code") which states:

"24. Mistake of fact

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."

21 On its plain reading s 24 would only be relevant in this case if the Magistrate was satisfied beyond reasonable doubt that the respondent had exceeded the speed limit. In this case that would mean that the Magistrate had accepted that the multanova accurately recorded the respondent's speed, there being no other evidence to support the charge.

22 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.

23 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.

24 I have decided that as the applicability of s 24 is not a ground of appeal and as I have not heard submissions on the issue, this is not an appropriate case for me to consider it. I will determine the appeal on the basis on which the appellant brought it, which was that s 24 does apply to this offence.

25 I find that the Magistrate erred in law in his application of the Act, s 98A. Unfortunately more than one error is apparent. The first error that I note is that when the Magistrate referred to the effect of the operator's evidence he said there was prima facie evidence "to say it's 84". If the Magistrate meant by that that the evidence was prima facie evidence that the respondent's vehicle was travelling at 84 kilometres per hour then he would be correct. However, that is not what he said. After reading his reasons I believe that at that stage he may well have failed to appreciate the effect of s 98A(3) which is that the operator's evidence was prima facie evidence of the respondent's vehicle's speed and not prima facie evidence that the multanova registered that reading or prima facie evidence that either the respondent's vehicle or the one adjacent to it were driving at 84 kilometres per hour.

26 The next part of his reasons that demonstrate error is where the Magistrate poses the question that he believes that he has to answer. He says that the question is "has the defence raised a doubt as to whether that other vehicle that's outside the notch, could the speed of that have activated the photograph?" With respect that was not the question for the Magistrate to answer. The issue was not whether the respondent had raised a doubt as to whether the speed of the vehicle next to him had caused the multanova to photograph the respondent's vehicle. Rather, the question was whether the prosecution had proved that the respondent was speeding, taking into account the effect of s 98A and the evidentiary burden that lay on the respondent: Cazzol v Fuss (1988) 6 MVR 350 at 353.

27 The failure of the Magistrate to identify the real issue before him means that he did not make findings as to whether he accepted the respondent's evidence as truthful and accurate and whether after considering all the evidence he had a reasonable doubt as to whether the appellant had proved its case.

28 Rather the Magistrate proceeded to discuss the evidence which he apparently believed was relevant to the question he had posed. He referred to the operator's evidence. He said that it was his belief that it would require an expert to prove the accuracy of the evidence that it was the respondent's vehicle that was exceeding the speed limit as opposed to the vehicle next to it. This opinion negates the effect of s 98A(3) which of course, is to the effect that such evidence is prima facie proof of what it states, without the need to call expert evidence.

29 The Magistrate appeared to be of the opinion that there was competent evidence before him bearing upon the issue as to whether the other vehicle was speeding and had thus caused the multanova to photograph the respondent's vehicle. There was no such evidence. There was no direct evidence as to the speed of the other vehicle from either the operator or the respondent. The operator's evidence was evidence of the speed of the respondent's vehicle, not of any other vehicle. The operator did not concede that the multanova could have recorded the other vehicle's speed or that the other vehicle could have interfered with the operation of the multanova. I do not accept that his final answer, "Well, anything is possible but - -", which he was not given an opportunity to conclude dilutes the effect of his previous denials.

30 Thus his Worship fell into errors of first, asking himself the wrong question, thus failing to make relevant findings, secondly giving credence to counsel's questions as opposed to the witness' evidence and thirdly, not giving effect to the provisions in the Act.

31 The final errors are in the Magistrate's concluding paragraph where he initially says that he has a "reasonable doubt" as to the respondent's "honest and mistaken belief". However, the Magistrate then says that he concludes that the charge should be dismissed because the appellant had not negatived to the required standard that the curb lane car could have activated the camera flash.

32 It is entirely unclear as to how the Criminal Code, s 24 became relevant at this point. As I have said previously, s 24 would only be relevant if the Magistrate determined that he accepted the prosecution evidence that the respondent had exceeded the speed limit as alleged. However, the Magistrate did not make such a finding.

33 Further, in order for s 24 to be relevant there must have been evidence that at the relevant time, that is at the time the offence was committed, the respondent believed that he was not exceeding the speed limit. There was no evidence that the respondent had checked his speedometer prior to the multanova reading. There was also no evidence as to the accuracy of the speedometer of the respondent's motor vehicle. Thus there was a real issue as to whether or not the respondent had a positive belief that he was travelling at or under the speed limit at the time he allegedly committed the offence and, if he did, whether that belief was reasonable. Whilst the Magistrate made findings about these issues he did not give any reasons for them.

34 The Magistrate's final comment, which I have quoted above, emphasises the errors that I believe the Magistrate made. The Magistrate had earlier asked himself the wrong question, but when answering it, he reversed the onus of proof. He was correct to say at this point, that the onus was on the appellant but it was not to negative a suggestion by the respondent's counsel that the other vehicle could have activated the multanova.

35 For the above reasons the appeal should be allowed and the conviction quashed. The Magistrate made several errors of law which resulted in the proceedings being fundamentally flawed. However, the appellant rightly concedes that the evidence given by the respondent falls squarely into the third category of evidence described by Murray J in Davis v Armstrong (supra) as being capable of displacing the prima facie effect of the prosecution evidence. Whether it would have that effect is a matter that to a large extent depends upon the credibility of the respondent. Such an issue should only be decided by a judicial officer who has the opportunity to observe the respondent give his evidence. Consequently the matter must be remitted to the Court of Petty Sessions to be heard by another Magistrate according to law.

Illich v Woodburn [2004] WASCA 148

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Illich v Woodburn [2004] WASCA 148 (2 July 2004)

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