IRELAND -v- JACKSON [2020] WASC 2 (8 January 2020)

1. At trial, the prosecution case was that on 23 December 2016 a Mr Michael Strang, who was working in the infringement management and operations division of the Western Australia Police, set up a 'VITRONIC PoliScan Speed M1' speed camera (PoliScan) about 200 m south of Apple Street on the Great Northern Highway, Upper Swan where the speed limit was 80 km per hour. The PoliScan took a photograph of the appellant's vehicle which showed that the vehicle was travelling at 91 km per hour.

1. Mr Strang gave evidence that he is a camera operator with the WA Police and is an authorised person under s 117 of the Road Traffic (Administration) Act 2008 (WA) (RTA Act). He said that he has been certified as a competent person to operate the PoliScan camera and that he uses it in accordance with the manufacturer's instructions. He produced a Government Gazette in which the Minister for Police approved the PoliScan[8] and a certificate of competency dated 26 November 2015.[9]
2. Mr Strang said that on the day of the offence he carried out a 'zero velocity distance test' on the camera prior to leaving the depot and the test showed that the camera was operating correctly.[10] When he set up the camera at the position on Great Northern Highway, he took measurements of the road and put those into the operating system. He also checked to ensure that the speed limit signs in the area were correctly erected[11] and checked to make certain that the camera was measuring the correct vehicle in the correct lane by taking a series of test shots.[12] He also identified a deployment sheet on which details as to the deployment of the speed camera were recorded.[13]
3. Mr Strang said that the PoliScan took a photo of a vehicle with the registration 1DLB 999 which was travelling at 91 km per hour in the 80 km per hour zone, heading north. He was unable to say how far away the vehicle was from the camera at the time the photo was taken, however he said that the camera operates up to a distance of 75 m.[14] He said that he was satisfied that the vehicle detected was the speeding vehicle. Once the deployment of the camera was complete, he again checked that the speed signs were still in place. Upon return to the depot, another zero velocity test was conducted to ensure that the camera was still working correctly.[15]
4. In cross‑examination, the appellant noted that the certificate of competency, exhibit 2, had not been signed by the Commissioner of Police. He sought to make the point that this was inconsistent with something that Mr Strang had said in a witness statement. He then asked Mr Strang why he had set the speed at 88 km per hour on the PoliScan when the speed limit was 80 km per hour. Mr Strang responded that drivers are afforded a 7 km allowance.[16] The appellant also asked questions regarding the testing of the camera and whether that had been done in accordance with the manufacturer's instructions.
5. Senior Constable Colosi, who was stationed at police enforcement services in Midland, also gave evidence. He explained the delay between the alleged date of offending (23 December 2016) and the date the prosecution notice was issued (21 June 2018). He said that an infringement notice was sent to the appellant on 4 January 2017 with a due date of 6 February 2017.[17] No reply was received and a final demand was issued on 21 February 2017, the due date for which was 21 March 2017.[18] Nothing was received by 21 March and the fine was then registered with the Fines Enforcement Registry and it 'remained there unpaid and unchallenged until we received a court election' on 25 June 2018.[19]
6. Senior Constable Colosi produced evidence that established that the appellant was the registered owner of the vehicle at the relevant time. He also gave evidence that the appellant had not nominated any other person as being the driver and, accordingly, he was presumed to be the driver in accordance with s 94 of the RTA Act.
7. The appellant did not give evidence at trial, but he did make submissions as to the commencement date of the prosecution and questioned whether the person who commenced the prosecution had the authority to do so. He also submitted that if he were to receive a fine following trial, this would constitute double punishment as he had already had his license suspended.[20] Finally, the appellant questioned why the manufacturer's instructions for the PoliScan camera had not been disclosed to him.[21]

1. The magistrate delivered oral reasons after a brief adjournment.
2. His Honour dealt first with the appellant's contentions as to the commencement of the prosecution. He said that the Fines Enforcement registrar was authorised to sign the prosecution notice under s 26 of the Fines Act and that there was no evidence to the contrary.[22]
3. In relation to the substantive issues, his Honour was satisfied that, on the basis of the Government Gazette and Mr Strang's certificate of competency, the speed camera in question was both properly approved and operated by a person authorised to operate it.[23] He was satisfied that the speed limit was 80 km per hour on the basis of Mr Strang's evidence as to the signage and the deployment sheet.[24] He was further satisfied that the appellant's car was travelling at 91 km per hour and that he was the driver, on the basis of Mr Strang's evidence in combination with certificates as to the owner of the car being the appellant, and deeming provisions which the appellant did not rebut.[25]
4. His Honour was therefore satisfied that the appellant was speeding and there was nothing to suggest that the PoliScan was operated other than in accordance with the law.
5. In relation to the appellant's contentions as to disclosure of the manufacturer's instructions of the PoliScan, his Honour said that the appellant had not sought a summons for the production of that document.[26]
6. In relation to the appellant's argument that he had already been convicted or punished for this offending, his Honour said that s 26 of the Fines Act only provided that the appellant was convicted for the limited purposes provided for in that section. Further, his Honour said that s 23 makes it clear that the making of an order to pay or elect does not constitute a conviction except as provided for in s 24.[27] As to double punishment, his Honour said that this argument was in essence the same argument that the appellant had put to the Supreme Court previously.[28] His Honour did not accept the appellant's arguments as to double punishment because 'it would make a mockery of the system'.[29]
7. His Honour then entered a conviction against the appellant, imposed a fine of $200 and awarded costs to the prosecution of $190.85.

1. The grounds of appeal, as contained in the appeal notice filed 20 May 2019, are as follows:
   1. The magistrate erred in fact and law when he did not call the name of the accused there by (sic) not engaging the jurisdiction of the Magistrates Court, and there for (sic) lacked the authority to conduct the trial or hear the matter;
   2. In the event that the magistrate was able to hear the matter, the magistrate erred in fact and law when at the trial, he did not identify the prosecutor or the date of (sic) when the prosecution started, there by (sic) raising an out of time issue;
   3. The magistrate erred in fact and law when he failed to inform himself on the issue of section 21(5) of the Fines, Penalties and Infringement Notices Enforcement Act 1994, when read with section 16 of said act, falling into jurisdictional error;
   4. The magistrate erred in fact and law when he failed to see or inform himself if disclosure had been made in particular the issue of the manufacturer's instructions not been (sic) disclosed to the accused after disclosure was ordered by a magistrate on the 19/09/2018 depriving the accused of a fair trial as the accused was not able to rebut evidence of the speed device;
   5. The magistrate erred in fact and law when he failed to see that a number of exhibits were not certified true and correct and should not have been accepted.
2. Making every allowance for the fact that the appellant is self‑represented, the meaning and intent of at least some of the grounds is unclear. For this reason it is necessary to refer to the written and oral submissions he made at the hearing of the appeal.
3. In the appellant's outline of submissions filed on 10 October 2019 he outlined ten points in separate numbered paragraphs. His oral submissions at the hearing of the appeal largely addressed the same ten points. There was some, but not precise, overlap with the grounds of appeal. The ten points can be summarised as follows:
   1. That s 59(2) of the Criminal Procedure Act 2004 (WA) (CP Act) was not complied with, in that the magistrate at the initial appearance did not satisfy himself that the appellant had a copy of the prosecution notice, had had time to consider it, seek legal advice about it, and understood the charge and the purpose of the proceedings, before requiring him to plead to the charge;
   2. That the infringement notice was withdrawn by the police and therefore there was no basis for the prosecution notice;
   3. That documents tendered by the prosecution were either inadmissible or did not prove the matters they were intended to prove, in particular:

(a) Exhibit 1, the Government Gazette of the approval of the PoliScan, was dated 1 September 2017, which was after the date of the alleged offence, being 23 December 2012;

(b) Exhibit 2, the Certificate of Competency, was not signed by the Commissioner of Police as required by s 117 of the RTA Act, but by an Acting Inspector;

(c) Exhibits 3 and 4, photographs of Great Northern Highway produced by Mr Strang, were not certified as true and correct; and

(d) Exhibit 5, the deployment sheet, showed that the camera was set to trigger at 88 kph, rather than 80 kph.

1. That the manufacturer's manual or instructions for the PoliScan camera were not disclosed to the appellant by the prosecution and for this reason the trial was unfair;
2. That the certificates tendered at the trial did not comply with s 117 of the RTA Act;
3. That the prosecution was not commenced within time by a person authorised to commence it, because s 20 of the CP Act and s 105 of the RTA Act prevail over the provisions of the Fines Act such that any prosecution must be commenced within 12 months of the alleged offence and only by a person authorised under s 105;
4. That if the prosecution was commenced by a registrar that person should have been called as a witness because it was the right of the accused to face his accuser;
5. That because the Fines Act obliged the accused to make an election before court proceedings could be commenced any plea he made was not voluntary;
6. That at that start of the trial on 24 April 2019 the charge was not again put to the appellant and plea taken, as required by ss 65 and 142 of the CP Act; and
7. That, notwithstanding s 103 of the Fines Act, there was a failure by the Fines Enforcement Registry to render procedural fairness to the appellant in relation to the issuing of notices and suspension orders.
8. There was also an additional point raised in oral submissions. The appellant contended that the when he failed to pay the infringement and his driver's licence was suspended this amounted to punishment for the offence of speeding. Accordingly, he argued, he could not be punished again in the Magistrates Court as this would be contrary to s 11 of the Sentencing Act 1995 (WA).
9. In the reasons that follow I will refer to the grounds contained in the appeal notice as 'grounds' and the points raised in the submissions as 'points'. Where there is overlap I will deal with them together. I will treat the points as proposed grounds, even though no application to add them as grounds was made. It must be noted that many of these issues were not raised in the Magistrates Court, a fact acknowledged by the appellant. He also acknowledged that he was unsure of some of his points and that with one he was 'just putting it out there' and with another he just 'threw that in' and with another he was 'throwing this out in the wind'.[30] It is, to put it mildly, regrettable that the time and resources of the court have been consumed by dealing with such matters.

Ground 1 - was there a failure to identify the appellant?

1. By ground 1, the appellant says that the magistrate failed to engage the jurisdiction of the Magistrates Court because he did not call the appellant's name at the commencement of the hearing. The appellant raised an identical argument in another appeal, Ireland v Watson,[31] which I heard on the same day as the present appeal.
2. There is nothing whatsoever in this ground. The appellant does not contend that he was not the person who appeared in the Magistrates Court on each occasion that the matter was mentioned. Nor does he suggest that any miscarriage of justice was caused by any failure to formally have him acknowledge his name on any occasion. Rather he contends that there was a strict formal requirement for the magistrate to call his name and have him acknowledge it, failing which the proceedings were invalidated. The law is not so silly.
3. The CP Act does not stipulate any specific manner for identifying an accused person who appears in court. There is simply no basis for suggesting that any failure to formally identify an accused person in circumstances where his identity is not in issue is a fatal flaw in the proceedings.
4. In any event, the transcripts show that on the first mention on 19 September 2018 the magistrate did, in fact, commence the proceedings by asking the appellant whether he was Mark Graeme Ireland, to which he answered 'yes, I am'.[32] At the two subsequent appearances the magistrate presiding clearly recognised the appellant and referred to him as 'Mr Ireland'.[33]
5. Ground 1 has no reasonable prospect of success and leave to appeal on this ground is refused.

Grounds 2 and 3 and point 6 - was the prosecution properly commenced?

1. The appellant submits that a prosecution for the offence in this case could only be commenced by a person nominated in s 105 of the RTA Act and within 12 months of the date of the alleged offence in accordance with s 20 of the CP Act. To the extent that s 16 and s 21 of the Fines Act provide otherwise they are said to be inconsistent with those other provisions and therefore do not apply.
2. An argument in precisely the same terms was raised in Ireland v Watson.[34] It is unnecessary for me to repeat what I said in that case. It is sufficient to say that the Fines Act is not inconsistent with the CP Act and the RTA Act. The effect of the relevant provisions of the Fines Act is that if an enforcement certificate has been lodged within 12 months of the alleged offence then the date of lodgement will be deemed to be the date on which any proceedings were commenced. Further, a prosecution notice lodged by a registrar under the Fines Act is taken to be made by the person who signed the enforcement certificate, who must be a prosecuting officer of the prosecuting authority.
3. In the present case the prosecution notice states that the registration date was 6 April 2017. It can be inferred that this was the date on which the enforcement certificate was lodged, given that the evidence of Senior Constable Colosi was that the infringement notice was registered with the Fines Enforcement Registry after 21 March 2017. Accordingly the prosecution was deemed to have been commenced on 6 April 2017, within 12 months of the commission of the alleged offence. Further, the prosecution notice states that it was issued by a registrar in accordance with s 21(5) of the Fines Act. Accordingly it is taken to have been made by the person who signed the enforcement certificate.
4. Whilst the enforcement certificate was not produced at the trial there is a statutory presumption of regularity in s 101C(2) of the Fines Act, which provides that anything required to be done as a precondition to taking any action under the Fines Act is presumed to have been done and done in accordance with the law, unless the contrary is proved. Merely raising a question as to the commencement date of the prosecution or the authority to commence the prosecution is not sufficient to rebut the statutory presumption of regularity. There was no evidence to prove that the enforcement certificate was not signed by a person with authority to prosecute or had not been lodged within the limitation period.
5. Grounds 2 and 3 and point 6 have no reasonable prospects of success and leave to appeal on these grounds is refused.

1. The appellant submits that he was denied a fair trial because the manual or the manufacturer's instructions relating to the PoliScan camera were not disclosed to him. He says that this material should have been disclosed because it was referred to in the evidence of Mr Strang and without access to it, it was not possible to determine whether what Mr Strang said was accurate.[35]
2. The respondent says that there was no obligation on the part of the prosecution to disclose any evidentiary material to the appellant, and further that if there was such an obligation, it did not extend to the manufacturer's instructions.[36] The respondent also says that even if there was an obligation to disclose the manufacturer's instructions, no miscarriage of justice was occasioned.[37]
3. Sections 60(5) and 61(5) of the CP Act provide for the making of disclosure orders in respect of simple offences.[38] The court has a discretion whether to make such an order. Two types of order are provided for in s 60(5) ‑ an order that the prosecutor serve the accused with any confessional material relevant to the charge and an order that the prosecutor comply with s 61. The second (broad) type of order can only be made in addition to an order of the first (narrow) type. If an order of the broad type is made the prosecutor must serve the accused with any confessional material relevant to the charge, any evidentiary material relevant to the charge, a copy of the accused's criminal record and any prescribed document. Evidentiary material has the meaning given by s 42 of the CP Act, which relevantly includes 'a copy of every other document or object that may assist the accused's defence'.
4. In this case, at his first appearance on 19 September 2018, the appellant applied for a disclosure order. An order was made by the magistrate then presiding, but the exact nature of that order was not specified. If it was an order of the narrow type then it would not require disclosure of the manual as it was not confessional material. If it included orders of both the narrow and the broad type it would only require disclosure of the manual if it was evidentiary material relevant to the charge.
5. The respondent submits that, since an order of the broad type cannot be made unless an order of the narrow type is also made, it is not open to make an order of the broad type unless some confessional material exists. It is further submitted that since no confessional material existed in this case it was not open to the magistrate to make an order of the broad type. The respondent relies in this regard on comments made by Smith AJ in Said v Watson.[39] If that is an accurate interpretation of what her Honour stated in that case, then, with respect, I do not agree.
6. In my view the power to make the broader type of disclosure order does not depend on the existence of confessional material. Disclosure orders are made in circumstances where the court has no way of knowing with certainty whether or not material of a disclosable type exists or not. A statement by the prosecution that there is no disclosable material, at all or of a particular type, does not necessarily establish that as a fact and cannot, therefore, remove the power to make a disclosure order. The purpose of the two types of order is not to confine broad disclosure only to those cases where confessional material actually exists, but to allow magistrates to adapt orders to the circumstances of the particular case. However, it is unnecessary to say more about this particular issue as the ground faces other obstacles.
7. It would seem that the prosecution did provide disclosure because there is reference in the transcript to the appellant being in possession of the statements of the witnesses.[40] The only alleged failure is in relation to the manual. That would only be a failure if the manual met the definition of evidentiary material relevant to the charge, that is, if it was a document that could have assisted the appellant's defence.
8. It is difficult to see how the manufacturer's manual could have assisted the appellant given that s 117 of the RTA Act provides that evidence of the speed at which a vehicle was moving as ascertained by the use of approved speed measuring equipment by an approved person is prima facie evidence of the speed. It was not necessary for the prosecution to prove that Mr Strang had complied with the manufacturer's manual. In any event there was no reason to think that he had failed to do so. Furthermore, it has been held that failure to follow the manufacturer's instructions for a speed measuring device will not render the evidence of the speed measuring device inadmissible, nor will it be sufficient to rebut the prima facie evidence produced under s 117.[41]
9. The appellant says that he could have been in a better position to displace the prima facie case if he had received disclosure of the manufacturer's instructions.[42] This is based entirely on speculation that there may have been some material difference between what the manual said and what Mr Strang did. Further, this would only be relevant if the defence was that the speed measurement was incorrect. However, the appellant made no attempt to rebut the presumption as to his speed at trial. He did not give evidence that he was not speeding at the relevant time and place, nor did he adduce any other evidence to that effect.
10. There is another relevant factor. This was a case where the existence of the manual or instructions was known to the appellant prior to the trial. He also self‑evidently knew that it had not formed part of the materials disclosed. In these circumstances, if he believed that the manual was covered by the disclosure order and that it was required for the conduct of his defence, his remedy was to make an application under s 63 of the CP Act for an adjournment. He did not do so. Nor had he, as the magistrate pointed out, sought to obtain the manual by issuing a summons.
11. For the above reasons I am not satisfied that the manual was evidentiary material that the prosecution was obliged to disclose, even assuming that a broad disclosure order was made under s 61(5) of the CP Act.
12. Ground 4 and point 4 have no reasonable prospects of success and leave to appeal on these grounds is refused.

1. By ground 5, the appellant appears to argue that the exhibits at trial should have been certified true and correct. All of the exhibits were tendered through a witness who had knowledge of the document in question. There was no need for any separate certification of them.
2. As regards exhibit 1, the Government Gazette which stated that the PoliScan had been approved by the Minister under s 117(2) of the RTA Act,[43] the appellant says that the gazette is dated 1 September 2017, which is after the date of the offending, being 23 December 2016. He says that the prosecution therefore did not present a prima facie case under s 117 of the RTA Act.[44] The implication is that unless the PoliScan was approved at the time of the alleged offence then evidence of what measurements it produced cannot be relied on.
3. A similar issue arose in Lyster v Kemp. In that case Beech J (as he then was) concluded that all that was necessary for the purposes of s 117 was that the relevant camera had been approved by the time of the trial. This is because the provision is one of a procedural nature.[45] I drew this to the appellant's attention at the appeal hearing and offered him the opportunity to read the case and file further written submissions, but he did not avail himself of that opportunity.
4. I agree, with respect, with the conclusions of Beech J in Lyster v Kemp. For the reasons he gives in that case the appellant's point in respect of exhibit 1 is without merit.
5. As regards exhibit 2, the certificate of competence, the appellant says that because this certificate was not signed by the Police Commissioner or by a person with proven delegated authority it did not meet the requirements of s 117 of the RTA Act and could not be relied upon for the purposes of establishing a prima facie case. He refers to Maccione v Doughty and notes that in that case the person who signed the certificate did so with delegated authority and the relevant instruments of delegation were tendered.[46]
6. There are two related ways in which a certificate under s 117 can be relevant. First, a person certified by the Commissioner as being competent to use the particular equipment is an authorised person for the purposes of that section and s 117A. This is relevant because under s 117(4) evidence given by an authorised person of the use of speed measuring equipment and the speed of a vehicle ascertained by that use is prima facie evidence of those matters. Second, a certificate purporting to be signed by the Commissioner is prima facie proof that the person is competent to use the equipment pursuant to s 117(8). Police officers are authorised persons without needing to be certified, but a certificate in respect of a police officer can be used to establish prima facie competency under s 117(8).
7. It is not clear from the transcript whether Mr Strang is a police officer. He was not referred to as such and he described himself as a camera operator employed by the Western Australian Police Force.[47] The exhibits do not identify him as a police officer, though there is reference to a PD number.[48] The magistrate assumed in his reasons that the certificate was required to prove that Mr Strang was an authorised person.[49] In any event, whether or not he is a police officer, it is clear that the certificate was relied on to prove that he was competent to use the PoliScan camera.
8. I note that s 117(9) provides that nothing in s 117 is to be construed as precluding the introduction of any competent evidence, whether in addition to or independent of any evidence for which the section makes provision. This makes it clear that certificate evidence under s 117 is an aid to proof but does not exclude matters such as whether a person is authorised or competent to use a particular device from being proved in other ways. However, in this case it is apparent that the certificate was relied on by the prosecution and the magistrate as proving the matters to which it related. There was no independent evidence of Mr Strang's authority or competence. Further, it was on the basis of the certificate that it was assumed that Mr Strang's evidence should be accepted in the absence of proof to the contrary. The certificate therefore was a critical element of the prosecution case.
9. In Maccione v Doughty the issue of whether the camera operator was an authorised person was raised in the Magistrates Court. Objection was taken to the certificate and the matter was adjourned part heard to give the prosecution an opportunity to collate the necessary documents. One of the documents produced on resumption was a certificate under s 117 signed by a person who was stated to be an Inspector. Strk AJ noted that s 117(8) contemplates that a certificate will be signed by the Commissioner and, accordingly, it was necessary for the prosecution to establish that the Inspector was a delegate of the Commissioner for the purposes of that section. That was achieved in that case by the production of instruments of delegation.[50]
10. In this case, unlike in Maccione v Doughty, the prosecution did not tender any relevant instrument of delegation. The appellant did raise at the trial the fact that the certificate had been signed by an Acting Inspector and not the Commissioner,[51] and this was sufficient to put the prosecution on notice that this was an issue that they needed to address. However, the prosecution did not seek an adjournment to obtain the relevant documents as in Maccione.
11. The issue was referred to during the closing submissions of the prosecutor. He referred to s 117(11), which provided that unless the contrary was proved a certificate purporting to be signed by a person as a delegate of the Commissioner is presumed to be signed in the performance of a delegated function. He said that because the appellant had adduced no contrary evidence the magistrate could presume that the certificate had been signed with delegated authority from the Commissioner. At this point an unidentified person (who can only have been Mr Strang) said that he had the delegation and could provide it if required. The magistrate then said that there was no need 'to worry about it'.[52] However, s 117(11) was repealed in 2012, so any reliance on it was misplaced. In any event it could not have assisted because this certificate does not purport to be signed by the Acting Inspector as a delegate of the Commissioner.
12. The respondent submits that the Police Commissioner can delegate any power or duty that he has under a road law to, amongst others, a specific police officer or police officers of a specified class, pursuant to s 9 of the RTA Act.[53] It is said that exhibit 2 was prima facie evidence of Mr Strang's authorisation, without proof of the signature of the person purporting to have signed it, pursuant to s 117(8) of the RTA Act.[54] The respondent also relies on s 116 of the RTA Act, which provides that for the purposes of a road law, it is not necessary to prove the appointment of an office holder[55] and that a signature purporting to be the signature of an office holder is evidence of the signature it purports to be.[56]
13. There are a number of flaws in this argument. First, the fact that the Commissioner could delegate the power to the Inspector who signed the certificate does not mean that he did so. Second, s 117(8) does not provide that any signature on a certificate is sufficient, what it provides is that 'a certificate purporting to be signed by the Commissioner' is prima facie evidence without proof of the signature or that the purported signatory was the Commissioner. Third, s 116 does not assist because whilst it makes it unnecessary to prove that the Acting Inspector held such an office and that the signature was hers, it does not provide that it is unnecessary to prove a delegation by the Commissioner to the person who held that office.
14. The respondent suggests that it can be inferred from the surrounding facts that the certificate was signed with delegated authority. Reference is made to the fact the certificate refers to s 117 and to the exchange during closing submissions regarding the existence of a delegation. I do not accept this submission. There is nothing on the face of the certificate to suggest that it has been signed by or on behalf of the Commissioner. To the contrary on its face it appears to be a certificate of an Acting Inspector acting in that capacity. The exchange regarding the delegation does not prove that a relevant delegation exists. There may well be a valid instrument of delegation, but that is not an assumption I can make. It is unfortunate that the offer to produce the delegation was not accepted due to a misunderstanding.
15. The presumption of regularity[57] does not assist in this case for two reasons. First, an Acting Inspector does not have authority in the ordinary course of his or her duties as a police officer to provide a certificate unless given delegated authority by the Commissioner and there is nothing on the certificate to suggest that such authority exists. Second, the issue of whether the certificate was properly signed was raised by the appellant at the trial and that required the prosecution to prove that the authority existed.
16. It may well be that the error that has been identified can be very easily rectified by the production of an instrument of delegation. However, that is no reason not to allow the appeal on this ground. There is no room for the application of the proviso because the certificate was a critical part of the prosecution case.
17. As regards exhibit 5, the deployment sheet, the appellant says that it shows that Mr Strang set it to enforce speeding from 88 km per hour. He says that this is relevant because the speed limit was 80 km per hour and this goes to Mr Strang's competence to operate the camera because he was not enforcing the actual speed limit. He says that he raised this in cross‑examination and that this rebutted the prosecution's prima facie case under s 117 of the RTA Act.[58]
18. I do not accept these submissions. Mr Strang explained that he had deliberately set the camera to take photographs from 88 km per hour upwards because it is a policy to provide an allowance of 7 km per hour.[59] The fact that Mr Strang deliberately set a particular speed in the camera which was higher than the speed limit in accordance with police policy does not in any way impugn his competence to operate the camera and equally is not evidence that could rebut any prima facie case.
19. Leave to appeal on this ground is granted insofar as it relates to exhibit 2, the certificate of competency. The appeal must be allowed on that ground, the conviction and sentence set aside, and the matter remitted to the Magistrates Court for a retrial.

Point 1 - compliance with s 59(2) of the CP Act

1. Section 59(2) of the CP Act provides that before an accused can be required to plead to a charge in the Magistrates Court the court must be satisfied that the accused has a copy of the prosecution notice, has had time to consider it and seek legal advice about it, and understands the charge and the purpose of the proceedings. The appellant submits that the magistrate did not satisfy himself as to these matters at the initial appearance on 19 September 2018. He raised an identical point in Ireland v Watson. I do not intend to repeat what I said in that case in regard to the relevant law.[60] It is only necessary to refer to the particular facts of this case.
2. There is no merit in this point. At the hearing on 19 September 2018 the magistrate presiding commenced by briefly referring to the charge and asking how the appellant pleaded. However the appellant did not immediately enter a plea, rather he spent some time setting out various submissions that he said went to the jurisdiction of the court. He then asked for the charge to be read out, which it was. He entered a plea of not guilty and then told the magistrate that he was disputing the alleged speed and he sought an order for disclosure. The charge was a very simple one and it is readily apparent that the appellant understood it, had had time to consider it and obtain legal advice if he wished to. In any event no possible prejudice could arise since he entered a plea of not guilty, which he continued to adhere to.

Point 2 - was the infringement notice withdrawn?

1. This point was not addressed in oral submissions. It seems to be an identical point to one raised in Ireland v Watson.[61] In the present case there is no evidence to support the allegation that the infringement notice was withdrawn.

1. The appellant seems to be suggesting that he was deprived of the common law right to confront his accuser because the person who initiated the prosecution was not called. He has misunderstood the relevant principle, which is better understood as a right to test the evidence brought against him.[62] He was not denied any such right in this case.

1. The appellant contends that because he was obliged to make an election to go to court in order to have the suspension of his licence lifted his plea was made under an inducement or duress. It is difficult to say much about this claim other than it is plainly wrong. The applicant was not obliged to go to court, he could have paid the infringement penalty. He chose to go to court and that choice did not oblige him to enter a plea one way or the other. In any event he entered a plea of not guilty so the point is arid.

1. Sections 65 and 142 of the CP Act provide that whether or not an accused person has previously entered a plea to a charge, the court must, at the start of the trial, inform the accused of the charge and require the accused to enter a plea. That did not happen at the trial on 29 April 2019 and the appellant says that for this reason the trial was a nullity.
2. Although the requirement is expressed in mandatory terms, there is no indication that any failure to comply with it will render the proceedings a nullity. In this case the failure was immaterial. There was never any doubt that the appellant knew what the nature of the charge was and was maintaining his plea of not guilty. He suffered no prejudice as a result of not being asked to confirm his plea.

1. The appellant contends that at each stage of the infringement penalty enforcement process he should have been given an opportunity to make submissions and be heard as to why a decision should not be made. No more needs to be said about this than that it is contrary to s 103 of the Fines Act. That section expressly excludes the rules of natural justice in relation to the doing of any act by a registrar under that Act.

1. The appellant submits that the suspension of his driver's licence when he failed to pay the infringement constituted a punishment for the offence of speeding and that, therefore, he could not be punished again for the same conduct by being fined in the Magistrates Court. He raised an identical argument in Ireland v Watson.[63] It is unnecessary to repeat what I said there, which applies equally to this case. It is sufficient to note that the argument is entirely without merit.

1. The only ground with merit is ground 5 (and point 3(2)). For the reasons I have given that ground must succeed and the conviction be set aside. All of the other grounds are without any reasonable prospect of succeeding and leave in respect of them is refused.
2. As I noted in Ireland v Watson,[64] some might think that the amount of time and public resources that the appellant has caused to be expended on what is a relatively trivial matter is scandalous. He has pursued numerous technical, and mostly unmeritorious points, with a determination that is quite disproportionate to the importance of the issues involved. His small success in this case is not an endorsement of his general approach - it arises from an unfortunate error in regard to proof of the certificate of competency. I also note that an alternative procedure was available to the registry, namely an enforcement warrant under s 21A of the Fines Act.

1. The orders of the Court are as follows:
   1. Leave to appeal on ground 5 (and point 3 (2)) is granted.
   2. Leave to appeal on all other grounds is refused.
   3. The appeal is allowed.
   4. The conviction, sentence and costs order are set aside.
   5. The matter is remitted to the Magistrates Court for a retrial.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Exhibit 7: Traffic infringement notice.

[3] Exhibit 10: Letter electing to go to court.

[4] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 19 September 2018, 2.

[5] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 19 September 2018, 2 ‑ 3.

[6] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 19 September 2018, 3 ‑ 4.

[7] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 19 September 2018, 3 ‑ 4.

[8] Exhibit 1: Government Gazette, Road Traffic (Administration) Act 2008 (WA), s 117(2)(c).

[9] Exhibit 2: Certificate of Competency.

[10] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 9.

[11] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 9.

[12] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 12.

[13] Exhibit 5: Deployment sheet, ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 10 ‑ 11.

[14] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 11.

[15] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 13.

[16] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 16.

[17] Exhibit 7: Traffic infringement notice, ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 22 ‑ 23.

[18] Exhibit 8: final demand, ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 23.

[19] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 24.

[20] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 3, 36.

[21] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 17 ‑ 18.

[22] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 36.

[23] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 37.

[24] Exhibit 5, Deployment sheet, ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 38.

[25] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 38.

[26] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 37.

[27] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 39.

[28] Ireland v Waston [2017] WASC 242; (2017) 81 MVR 208, Ireland v Watson [2018] WASCA 57; (2018) 84 MVR 141.

[29] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 40.

[31] Ireland v Watson [2020] WASC 1.

[32] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 19 September 2018, 2.

[33] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 13 March 2019, 2; ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 6.

[34] Ireland v Watson [2020] WASC 1 [43] ‑ [54].

[36] Citing Said v Watson [2018] WASC 181 [84] ‑ [85].

[37] Respondent's outline of submissions filed 14 October 2019 [49] ‑ [51].

[38] Other than listed simple offences, which this offence was not.

[39] Said v Watson [2018] WASC 181 [82] ‑ [84].

[40] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 26.

[41] Davis v Armstrong (1993) 17 MVR 190, 192; Rumsley v Taylor (1997) 26 MVR 563 and Copeland v Watson [2017] WASC 261; (2017) 81 MVR 309 [66] ‑ [67].

[44] Appellant's outline of submissions filed 10 October 2019 [3(2)], ts 10 ‑ 11.

[45] Lyster v Kemp [2010] WASC 47 [109] ‑ [110].

[47] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 6.

[49] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 37.

[50] Maccione v Doughty [2019] WASC 375, [26], [31].

[51]ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 15 ‑ 16.

[52] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 28.

[53] ts 44, Respondent's outline of submissions filed 14 October 2019 [79].

[54] Respondent's outline of submissions filed 14 October 2019 [79].

[55] Road Traffic (Administration) Act 2008 (WA) s 116(2).

[56] Road Traffic (Administration) Act 2008 (WA) s 116(3).

[57] See Bhalsod v Perrie [2018] WASCA 108; (2018) 84 MVR 469, per Buss P at [107] - [114].

[59] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 24 April 2019, 16.

[60] Ireland v Watson [2020] WASC 1 [65].

[61] Ireland v Watson [2020] WASC 1.

[62] Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526 [78].

[63] Ireland v Watson [2020] WASC 1 [33] ‑ [42].

[64] Ireland v Watson [2020] WASC 1 [70].