STERN -v- HODGSON [2012] WASC 23 (12 January 2012)

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

4 When Mr Stern appeared in the Magistrates Court on 6 September last year he was asked to plead to the charge. He said, 'Guilty with an explanation'.

5 The alleged facts were brief. They were that just after 12 pm on 11 May 2011 Mr Stern was driving his motor vehicle on West Coast Highway. He was measured by a speed camera driving at 78 kilometres in a 70 kilometre speed zone.

6 Mr Stern's explanation to the Magistrates Court was in the terms I have earlier summarised. He said that he had not been aware at the time that the cruise control would not limit the speed of his car going downhill. He said that he tried to get letters from car manufacturers to confirm what he said but that they had refused.

7 The transcript of the proceedings of 6 September indicates that the presiding officer was a Magistrate but Mr Stern indicates that it was in fact two Justices of the Peace. In any event I will refer to the presiding officer simply as a judicial officer for the purposes of these reasons. The judicial officer said that Mr Stern could pursue the matter to obtain any relevant technical data, or alternatively, proceed with the plea proceedings on the information to hand. Mr Stern said in response that he had made all the inquiries that he could. The judicial officer then proceeded to record a conviction and imposed the fine I referred to earlier.

8 The fine imposed was equivalent to the modified penalty provided for by the Road Traffic Code reg 11(3) and reg 17(1)(a). That is, it was the same penalty as would have been payable on an infringement notice and substantially less than the maximum penalty provided for by reg 9(2).

9 It would appear from this that the judicial officer took into account Mr Stern's explanation when determining the appropriate penalty. On the transcript of the proceedings that appears to be precisely what Mr Stern was asking the judicial officer to do. That is confirmed by the fact that immediately following sentencing, Mr Stern asked whether two other speeding matters could be dealt with that day, or whether it would be necessary for him to appear and give the same explanation again on subsequent occasions. It is apparent from this that Mr Stern was not disputing his liability for the offence. Rather he was seeking to mitigate it.

10 Attached to the notice of appeal was a copy of a letter that Mr Stern had handed to the judicial officer. It set out the inquiries he had made regarding the cruise control. There was not, however, any application to adduce additional evidence on this appeal. Nor was there any affidavit from any person regarding the matters Mr Stern had asserted. Nor was there any affidavit suggesting that the plea of guilty had been entered in error, on the basis of any misunderstanding or under duress.

11 Section 8(2) of the Criminal Appeals Act 2004 (WA) permits an appeal against conviction even where a plea of guilty has been made. However, an appellate court will approach an attempt to set aside a conviction based upon a plea of guilty with 'caution bordering on circumspection': Liberti (1991) 55 A Crim R 120, 122, (Kirby P, Grove and Newman JJ agreeing). See also Hogue v The State of Western Australia [2005] WASCA 102 [22] (Wheeler JA); Borsa v The Queen [2003] WASCA 254 [20] (Steytler J, Murray ACJ and Hasluck J agreeing).

12 Before an appellate court will set aside a conviction based upon a plea of guilty, the appellant must demonstrate that there has been a miscarriage of justice: Hogue [22]; Borsa [20]. In Borsa, Steytler J referred to three wellrecognised circumstances in which a conviction based on a plea of guilty will be set aside:

(1) where the appellant did not understand the nature of the charge and did not admit guilt;

(2) if upon the admitted facts the appellant could not in law have been guilty of the offence; and

(3) where the guilty plea has been obtained by improper inducement, fraud or the like.

13 None of those circumstances relate to the present case. At best what Mr Stern is asserting is that he took steps to try and prevent himself speeding but that these steps turned out not to be efficacious. He does not dispute that his car was travelling over the limit or that he was driving it at the time. He does not suggest that his speedometer was not working, which is not to suggest that that would provide any excuse. He simply says he relied upon the cruise control. Clearly he was wrong to do so.

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

15 Leave is required in respect of each ground of appeal: Criminal Appeals Act s 9(1). In the present case there is only one ground. If leave is not granted the appeal must be dismissed. Leave can only be granted where a ground has a reasonable prospect of succeeding.

16 In my view, the ground does not have a reasonable prospect of succeeding. In these circumstances there is no basis for setting aside the conviction based, as it was, upon a plea of guilty. There is no reason to believe that Mr Stern's guilty plea was anything other than an acceptance of liability.

17 Accordingly, leave in respect of the ground must be refused and the appeal dismissed and I so order.