INTRODUCTION

Because the Full Court of the Victorian Supreme Court in Kearon v Grant [1991] 1 VR 321 held that the common law defence of mistaken honest and reasonable belief as to fact is not open to a charge of exceeding the speed limit under reg 1001 (c) of the now repealed Road Safety (Traffic) Regulations 1988 (either as to what the particular speed limit was or at what speed the vehicle was travelling) the legal practitioner needs to look for other types of defences to defeat the common so-called ?speeding charge? if so instructed by a client

Although the Victorian Supreme Court held in Woodward v Morgan (1990) 10 MVR 474 that the defence of necessity is available as a matter of law (also see Re White [1987] 9 NSWLR 427) in relation to a speeding charge, anecdotally it seems it is difficult to successfully raise it insofar as the accused satisfying the elements of that defence discussed by the Full Court in R v Loughnan [1981] VR 443.

However, the Supreme Court of Victoria has delivered over recent years a number of important decisions on a variety of matters relating to speeding offences which should be of interest to legal practitioners acting for motorists facing such charges arising out of the use of a motor car. The following is a small selection of cases (where an alleged speeding motorist was successful, or unsuccessful) which may be useful to determine whether a certain defence or tactic may be viable.

SUBPOENA OF SPEED CAMERA SERVICE RECORDS

In State of Victoria v Lane [2012] VSC 328 Kyrou J dismissed a Crown application for judicial review of a magistrate?s decision to refuse to set aside a motorist?s summons seeking the production of the service records for the specific speed camera device used to detect speed to be used in contesting a charge of exceeding a speed limit.

The motorist claimed that the uncontested facts were that because the alleged offences occurred at the same location over a short period of 19 days this provided 'some foundation' for his concern that the cameras were not operating properly at that location. On the basis of this material, the magistrate found that there was a reasonable possibility that the documents would materially assist Mr Lane?s defence.

Kyrou held that, in the circumstances before the magistrate, there was a legitimate forensic purpose by the accused in seeking those particular documents and, accordingly, the subpoena was not merely a 'fishing expedition' to get information and there was no error of law on the face of the record.

ADMISSIBILITY OF S 84 ROAD SAFETY ACT CERTIFICATES

In some situations ownership of a motor car may need to be established by the prosecution in order to assist it in identifying the driver for proof of a speeding offence. Although dealing with a charge of driving an unregistered motor vehicle the case of Tsolacis v McKinnon [2012] VSC 627 may be of interest insofar as admissibility of documents to prove this. Cavanough J held at [6] and [9] that for an evidentiary certificate under s 84 of the Act to prove that the vehicle was an unregistered vehicle (when sought to be tendered by the prosecution for an offence under s 7(1)(a) of the Act of driving an unregistered motor vehicle) it must contain the prescribed particulars to be admissible.

In that case, where the particular sub-section of s 84, that is, sub-s (1), was missing from the certificate sought to be tendered, this resulted in the motorist?s appeal being allowed with the charge being dismissed because that information was missing. Cavanough J in his reasoning at [37] to [48] also seemed to find support from certain parts of the Court of Appeal decision dealing with pleadings defects in refusal to accompany for breath test charges (concerning the fundament omission in the pleaded charge of the specific sub-section giving rise to the source of power to accompany) as discussed in DPP v Kypri [2011] VSCA 257.

EXPRESSION OF "TESTING OFFICER UNDER REGULATION 5" IN S 83 CERTIFICATE SUFFICIENT

In Foster v Harris [2012] VSC 637 Williams J held that a Magistrate, during a contested speeding case, did not err in law in admitting and relying on a s 83 Road Safety Act Certificate which did not set out the qualifications of the signatory to the document, but simply, relevantly, stated "T.M.Mulcare, Testing officer in accordance with Regulation 5". At [28] and [29] Williams J found that expression was neither ambiguous nor inconclusive.

PROSECUTION NOT REQUIRED TO PROVE PERSON AUTHORIZED BY COMMISSIONER BEFORE RELYING ON S 83A CERTIFICATE

In DPP v Meade & Anor [2011] VSC (23 June 2011) Curtain J allowed a Crown appeal against a Magistrate's dismissal of Road Rule 20 speeding charges detected by a traffic camera. Curtain J held that the prosecution is not required to prove that a person is authorized by the Chief Commissioner of Police to issue a certificate under s 83A of the RSA before the certificate can be relied on in proceedings in proof of a charge under Road Rule 20. At paragraph [8] Curtain J stated that given the plain meaning of the word "purporting" in s 83A(1), when read in combination with s 83A(2), it was clear that the section does not contemplate actual proof of authorization before the certificate is admissible to prove the matters contained therein.

PROSECUTION MAY SEEK MAGISTRATE REVIEW AS HEARING DE NOVO OF JUDICIAL REGISTRAR HEARING NOTWITHSTANDING DISMISSAL

In DPP v Bryar [2014] VSC 224 Rush J held the prosecution may seek review by a Magistrate under Magistrates Court Act 1989 s 16K which operates as hearing de novo of a dismissal of a charge, in that case a speeding offence under Road Rule 20, by a Judicial Registrar and a plea in bar of autrefois convict or autrefois acquit has no application. Following a contested hearing before a Judicial Registrar, the Registrar found the motorist was not guilty of travelling at 94 kph in a 40 kph zone (because the Registrar could not be satisfied beyond reasonable doubt that the speed signage displayed in the road works area complied with a management plan for the works), however, he was guilty of travelling at 94kph in a 80kph zone (being the maximum speed on that part of the road if there was no modification of the speed limit by the management plan). The prosecution sought a s 16K review by a Magistrate where, it appears, the prosecution would then call evidence to cure the alleged defect in the prosecution case when it was heard before the Judicial Registrar. The Magistrate who heard the review accepted a plea in bar on the basis of double jeopardy. Under an appeal to the Supreme Court under Criminal Procedure Act s 272(1) the prosecution argued that the Magistrate had erred. Rush J held it was a final order, capable of being the subject of a s 272(1) appeal and found the magistrate had erred in law.

COMPLYING WITH AUSTRALIAN STANDARDS FOR OPERATING PRESCRIBED SPEED DETECTOR

In Dreger v Tepper & Anor [2014] VSC 006 Croucher J, in dismissing an application for judicial review of a County Court Appeal Judge's decision in dismissing the plaintiff's appeal against conviction by a magistrate on a charge of exceeding the speed limit detected by a prescribed speed detector, held at [42] that, in the circumstances of the evidence before the County Court Appeal Judge, the Judge did not err in finding that there was compliance with the Australian Standards for operation of the prescribed speed detector in question (in that case, a Kustom Silver Eagle) in its use by the informant.

WORDING OF SPEEDING CHARGE UNDER ROAD RULE 20

In Foster v Harris [2012] VSC 637 Williams J held that a Magistrate did not err in law in holding that a charge against the appellant properly alleged an offence when it failed to specify the time when the speed zone applied to drivers or the time when the alleged offence occurred or that occurred on a declared school day.

At [19] Williams J applied earlier Victorian Supreme Court decisions of Ciorra v Cole and DPP v Kirtley which establish that the two essential ingredients of the charged offence to be included in the charge are the alleged facts that the vehicle was driven by the appellant and that the driver drove it over the speed-limit applicable to the driver on that particular section of road. It was not necessary to include in the charge express reference to the factual basis on which the applicable speed-limit was to be determined.

NO NEED FOR PROSECUTION TO INDEPENDENTLY PROVE HOW SPEED LIMIT DETERMINED WHERE PHOTO USED

In DPP v Juchnowski [2008] VSC 181 Kyrou J allowed a Crown appeal against dismissal by a Magistrate of a speeding charge under Road Rule 20 and in doing so distinguished Ciorra v Cole [2004] MVR 547; VSC 416. The learned Magistrate had relied on the statement of Redlich J at para [81] of Ciorra that "The basis upon which the speed limit is to be determined need not be set out in the charge. Though it be fact necessary to be proved by the prosecution... to find that although the prosecutor had tendered the photo image showing the speed alleged and the speed limit the photo did not go far enough to show how the speed limit was to be proved, eg, by speed limit sign or school zone etc under rr 21, 22, 23, 24, or 25 etc. Kyrou J found that that statement in Ciorra only applied to situations where oral evidence was adduced by the prosecution where photo images were not relied on under s 81(2) read with s 66 of the RSA.

Specifically, at para [31] of Juchnowski, Kyrou J held, "The structure of s 81 of the RS Act, and its nature as a facilitative provision... strongly suggests a legislative intention that s 81(2) provided a complete means of proving an applicable speed limit, without the need to prove the basis upon which the speed limit is determined. Section 81(1)...provides a mechanism for proving the speed, while s 81(2) provides a mechanism for proving the speed limit. Collectively, those sub-sections...provide means by which two of the essential elements of the offence in rule 20...can be proved. It would be odd if, despite the legislative intention that appears from this drafting, it were necessary for a prosecutor to additionally prove the basis upon which a speed was determined where s 81(2) provides a prima facie means of proving the speed limit. In my opinion, on a proper construction of s 81(2), this additional proof is not required."

Accordingly, it seems that if the evidence supporting a speeding charge does not come from a photo image and the prosecution instead relies on oral evidence of an officer using, for eg., a laser or radar type speed measuring device, then the prosecution cannot rely upon the broader facilitative provision in s 81, rather it would be relying on the more specific provision in s 79 which would necessitate the officer having to describe which type of speed limit was to be proved ie under rr 21, 22, , 23, 24 or 25 - and if that evidence from the officer's testimony is missing then it appears the prosecution cannot succeed in proving an element of the speeding charge necessitating dismissal.

"EVIDENCE TO THE CONTRARY" TO REBUT SS 79 & 81 PRESUMPTIONS

Although there is little in the way of judicial interpretation in Victoria of the expression "in absence of evidence to the contrary" in the facilitative provisions of ss 79 and 81 of the Road Safety Act 1986, the New South Wales Court of Criminal Appeal (comprising Spigelman CJ, Bell and Howie JJ agreeing) in Roads and Traffic Authority of New South Wales v Baldcock [2007] NSWCCA 35, BC200701282 at [36] appeared to disapprove of Adams J's interpretation in Roads and Traffic Authority of New South Wales v Michell [2006] NSWSC 194 at [15] that "slight or unconvincing" evidence or evidence which is disbelieved could displace the tender of technical evidence of the photographic device.

Spigelman CJ agreed with Kellam J's observations in a drink driving prosecution based on a blood sample certificate in DPP v Cummings [2006] VSC 327 especially at [35] in relation to the meaning to be attributed to "evidence to the contrary".

OBLIGATION TO SUSPEND "ALL LICENCES"

In DPP v D'Amico BC200107204; [2001] VSC 434 it was held that a Magistrate had erred when, upon convicting a defendant for speeding at 147 kph in a 100 kph zone on a motor cycle contrary to Road Rule 20, he only suspended the defendant's motor cycle licence rather than including the motor car licence which that defendant also held. Eames J held that s 28(1)(a) of the Road Safety Act 1986 requires that all licences be suspended. He further held that the word "driver" which includes "rider" under Road Rule 19 applies also to s 28(1)

AMENDING CHARGE FROM REPEALED DRIVERS REGULATIONS TO ROAD RULE 20 12 MONTHS AFTER OFFENCE IMPERMISSIBLE

In Flanagan v Remick [2001] VSC 507 Eames J held that a magistrate had erred in acceding to a prosecution application under Magistrates Court Act 1989 (Vic) s 50(1) to amend a speeding charge laid under the repealed Road Safety (Drivers) Regulations reg 217 to the current offence under Road Rule 20. This was because the amendment was made more than 12 months after the date of the offence contrary to Magistrates Court Act 1989 s 26(4) and was tantamount to laying a fresh information after the statutory limitation period had expired which was impermissible. The Criminal Procedure Act 2009 (Vic) s 8 now deals with amending powers.

RE-OPENING PROSECUTION CASE TO PROVE SPEED LIMIT

In Kurzbock v Hallett [2001] VSC 459 Ashley J dealt with a s 92 Magistrates Court Act 1989 appeal by a motorist who had been charged with exceeding a speed limit by more than 50 kilometres per hour contrary to Road Rule 20. The matter proceeded as a Magistrates' Court contest. The prosecutor was informed by the defence twice, including on the hearing day, that it would be put to strict proof . The informant commenced to give evidence in chief. Defence counsel invited the prosecutor to tender the informant's sworn statement in lieu of him having to give that evidence orally.

The prosecutor, with the Magistrate's consent, took up that invitation. In cross-examination a successful attack was made on the police laser detection device with the consequence that the speed alleged could not be proven from the laser reading. However, the informant, a traffic police member, gave expert evidence of his speed estimate of the defendant's car. The prosecution shut its case. The defence did not make a no case submission. Defence counsel opened and shut the defence case without calling evidence.

The speed ultimately established beyond a reasonable doubt was substantially lower than on the laser, although still in excess of the speed limit. However, the defence submitted that the prosecution had not proven beyond a reasonable doubt that the defendant infringed a speed limit sign described under Road Rule 21, which was how the charge was pleaded (see, on analogy, Beach J's decision in Passey v Burns 32 MVR 160; BC200007113; VSC 492). The Magistrate accepted the submission that the charge should fail.

The prosecution then applied to re-open. The defence opposed this on grounds that the prosecution had been informed it would be put to strict proof and, therefore, it was reasonably foreseeable proof of a lawful speed limit would be required, and due to unfairness occasioned to the defendant (including why) as the defence had shut its case. See, generally, Chin (1985) 157 CLR 671. The Magistrate allowed the prosecutor to re-open stating "...given the way the matter proceeded, the invitation to adopt a statement...to tender it to the Court rather than have the Informant to give his evidence in the normal manner seems to me sufficient grounds for the Court to exercise its discretion...". The informant was recalled and described the signs in terms of that appearing in the Road Rules.

Ashley J held that the appellant had not shown that the Magistrate's discretion miscarried - the Magistrate evidently and correctly recognised that exceptional circumstances were required before permitting re-opening and decided that calling the evidence was not reasonably foreseeable, there was no demonstrated unfairness to the Magistrate, and there was good reason why the defendant would have kept out of the witness box.

However, in Martelli v Police [2007] SASC 21 Anderson J at the South Australian Supreme Court quashed a speeding conviction and held that a Magistrate had erred in granting leave to the police prosecutor to re-open the prosecution case to tendered a certificate to prove that the laser speed detection device was accurate. The prosecutor was put to strict proof of her case by the defence. Anderson J held at [26] and [27] that the prosecutor's omission to tender the certificate as to accuracy of the laser was not a technical oversight or a matter of formality because it touched the very heart of the dispute, namely the speed that the defendant was travelling and how it was to be proved. The Magistrate's discretion to allow re-opening miscarried.

PROSECUTION FAILURE TO LEAD EVIDENCE OF DEVICE USED ACCORDING TO REGULATIONS

In Rodger v Wojcik [2014] VSC 308, Croucher J held at [9]-[20] that an appeal to the Supreme Court from a speeding charge heard and determined ex-parte by a judicial registrar was competent. Croucher J held that, on the basis of the admissible evidence, it was not open to a judicial registrar, in an ex-parte hearing under s 80 of the Criminal Procedure Act 2009, to find the appellant guilty of travelling at 129 km/h in a 70 km/h speed zone.

The evidence contained in a preliminary brief of evidence failed to establish that the Stalker Dual DSR (a prescribed speed detector) had been used in accordance with rule 46 (a)(ii) and (b) of the Road Safety (General) Regulations 2009, at [28].

Croucher J re-sentenced the appellant on the basis that he had exceeded the speed limit of 70 km/h by less than 10 km/h, avoiding the otherwise 12 month minimum licence suspension.

EX PARTE HEARING - PRELIMINARY BRIEF OF EVIDENCE- NECESSITY TO PROVE EACH ELEMENT OF SPEEDING OFFENCE

In McWhirter v Dunlop; Tran v Harris [2013] VSC 697, Dixon J held [at 31]. that nothing in the Criminal Procedure Act 2009 'relieves the prosecution of the obligation to demonstrate the existence of every necessary element of the offence when prosecuting ex parte on a preliminary brief. The task to determine whether the matters disclosed in a preliminary brief disclose the offence charged will be discharged when the magistrate considers , meaning is satisfied, that the matters set out in the preliminary brief demonstrate the evidence is available to prove beyond reasonable doubt every necessary element of the offence'.

The appellant had been charged with driving at an alleged speed of 149 km/h in a 100 km/h speed zone. The charge was heard ex parte, on the basis of a preliminary brief of evidence that had been filed; see ss 37, 80 and 84 Criminal Procedure Act 2009. He was suspended from driving for 12 months

Dixon J held at [38-40] that the preliminary brief of evidence against the appellant was deficient in that: it did not specify the speed limit applying to the appellant; it did not specify whether the appellant exceeded the applicable speed limit by more than 45 km/h; it did not identify that a prescribed speed detector had been used; and it did not identify that the detector was used in accordance with reg 46 of the Road Safety (General) Regulations 2009

Notwithstanding these deficiencies Dixon J found [at 41] that it was open for the magistrate to consider that the matters set out in the preliminary brief disclosed the offence of disobeying the speed limit. His Honour held [at51] that these deficiencies meant that it was not open for the magistrate to find that the appellant had exceeded the speed limit by 45 km/h or more.

His Honour also found that the magistrate could only be satisfied beyond reasonable doubt that the appellant exceeded the speed limit by less than 35 km/h, [at 52]. However, His Honour [at 55] was of the view that it was still appropriate to suspend the appellant's licence for six months.

CONCLUSION

The above small but varied selection of cases show that motorists and the Director of Public Prosecutions alike keep the Supreme Court quite busy with appeals from decisions of magistrates dealing with speeding offences under the Road Safety Act and the Road Rules and procedural and evidential matters relating thereto. Care, however, should be taken in relying upon the above mentioned selection of cases with lengthening passage of time due to the usual caveats of legislative reform and the possible overruling of Supreme Court decisions in the future by the Court of Appeal or failure of a single judge of the Supreme Court to follow a decision of another single Judge of the Supreme Court.

WJ Walsh-Buckley
Barrister-at-Law
13 November 2014