Appellant v Respondent

1 At about 6:22 p.m. on 31 August 2012, Senior Constable Adam Wojcik ("the respondent") and another officer were travelling along Green Gully Road in Keilor in a marked police car. They were behind Andrew Rodger ("the appellant"), who was riding a motorcycle, the respondent said, "at a fast rate of speed". The appellant "accelerated at a fast rate of speed away from them". The respondent employed a speed detection radar, which indicated that the motorcycle was travelling at 129 kilometres per hour ("kph"). The applicable speed limit was 70 kph. Signs to that effect were in place.

2 The appellant was intercepted. When asked to produce his driver's licence, he said, "Look, I know I've fucked up. But I've got a good excuse. I'm on my way to an AA meeting in Moonee Ponds. I'm a recovering alcoholic." When the respondent said, "Okay, but that's no excuse for the speed", the appellant responded, "I know. I don't know what I was doing." When told his speed was detected at 129 kph, he said, "Was it that quick." When asked whether he knew it was a 70 kph zone, he said, "70 or 80." The appellant's motorcycle was impounded for 30 days.

3 On 8 September 2012, the respondent charged the appellant with riding over the speed limit of 70 kph contrary to r 20 of the Road Safety Road Rules 2009 (Vic) ("the Road Rules"). The speed alleged in the charge was 127 kph.

4 On 24 January 2013, the matter came before a judicial registrar of the Magistrates' Court at Sunshine. There was no appearance by the appellant. The respondent was represented by a police prosecutor. A preliminary brief, containing inter alia a statement from the respondent which outlined the foregoing summary of facts, was on the court file and had been served on the appellant. The judicial registrar heard and determined the charge ex parte. He said he was satisfied from the brief of evidence that the charge was made out. He convicted the appellant, fined him $800 and suspended all of his licences and permits for 16 months from 31 January 2013.

5 The appellant now appeals against those orders on a question of law, pursuant to s 272 of the Criminal Procedure Act 2009 (Vic) ("the CPA"). The appeal raises three main issues:

6 First, Ms Hassan, who appeared for the respondent, submitted that the appeal was incompetent because the final orders of a judicial registrar are not amenable to an appeal under s 272 of the CPA. In my view, the appeal is not incompetent.

7 Secondly, Mr Hardy, who appeared for the appellant, submitted that it was not open on the admissible evidence before the judicial registrar to be satisfied that the charge was made out. In my view, while it was not open on the admissible evidence to be satisfied that the speed detection device was used in the prescribed manner, with the result that it could not be said that the appellant was riding at 127 kph, it was open to be satisfied that he was riding in excess of the speed limit, albeit that the speed cannot be determined precisely. Accordingly, while the finding of guilt stands, the appeal must be allowed, the sentencing orders below must be set aside and the appellant must be re-sentenced.

8 Thirdly, the question then arises as to whether the matter should be remitted to the Magistrates' Court for resentencing or dealt with by this Court. A related question is whether the respondent should be allowed to lead fresh evidence of speed at a rehearing or instead should be confined to the evidence in the preliminary brief. In my view, this Court should resentence the appellant on the basis of the admissible evidence in the preliminary brief.

10 Section 16I of the Magistrates' Court Act 1989 (Vic) ("the MCA") provides that the Chief Magistrate together with two or more Deputy Chief Magistrates may jointly make rules of court for or with respect to (a) the prescription of the proceedings which may be dealt with by the Court constituted by a judicial registrar and (b) delegation to the judicial registrars all or any of the powers of the Court except certain defined powers.

11 Pursuant to r 4(1)(e) of the Magistrates' Court (Judicial Registrar) Rules 2005 (Vic), which rule was made pursuant to the rule-making power in s 16I, the judicial registrar had the power to hear and determine the charge faced by the appellant.

12 Section 16K(1) of the MCA provides that a magistrate may direct that the hearing and determination of a proceeding by a judicial registrar be reviewed by a magistrate. Section 16K(2) provides that such a direction may be given at the request of a party to the proceeding or by the Magistrates' Court of its own motion. Section 16K(3) provides that a review under s 16K is to be conducted as a hearing de novo.[1]

13 Ms Hassan submitted that s 16K is the exclusive repository of a right of appeal against a judicial registrar's decision. She referred to the decision of the High Court in Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, in which, she submitted, it was held inter alia that the delegation of a court's jurisdiction to non-judicial officers within the same court, such as judicial registrars, will not impinge on judicial independence, and the decisions of such judicial registrars will be valid, only if those decisions are subject to review by a judicial officer of the same court by way of a rehearing de novo.[2] As I understood it, the submission was that it follows that a judicial registrar's decision in the present case can be reviewed only by a magistrate pursuant to s 16K and not by way of an appeal to this Court pursuant to s 272. It was said that that conclusion is reinforced by the fact that the Attorney-General referred to Harris v Caladine in his second reading speech when introducing the bill that led to the insertion of ss 16I and 16K and related provisions into the MCA.[3]

14 Section 272(1) of the CPA provides that "[a] party to a criminal proceeding (other than a committal proceeding) in the Magistrates' Court may appeal to the Supreme Court on a question of law, from a final order of the Magistrates' Court in that proceeding".

15 Ms Hassan accepted that the judicial registrar's orders in the present case were final orders of the Magistrates' Court. As Mr Hardy pointed out, s 4(2) of the MCA provides that "[t]he Court [which means the Magistrates' Court of Victoria[4]] shall consist of the magistrates, the judicial registrars of the court and the registrars of the Court". Thus, Ms Hassan conceded that the effect of her submission is that s 272(1) must be read as providing that a party may appeal from a final order of the Magistrates' Court as constituted by a magistrate, but not a judicial registrar.

16 In my view, there is no warrant for construing s 272(1) in that way. The words in that provision are plain. They make no distinction between final orders made by magistrates and those made by judicial registrars. Yet, in s 16K itself, which was enacted before s 272(1), a distinction is made between the "[t]he Court constituted by a magistrate" and "the Court constituted by a judicial registrar". Final orders made by magistrates and by judicial registrars are both final orders of the Magistrates' Court for the purposes of s 272(1) of the CPA.

17 I do not read Harris v Caladine as standing for, or as indirectly supporting, the proposition that the only right of appeal against a judicial registrar's decision is a review de novo by a judicial officer of the same court. It is apparent that the Attorney-General's purpose in referring to Harris v Caladine in his second reading speech was in an endeavour to explain why the proposed legislation included a right of appeal against a judicial registrar's decision to a magistrate by way of a de novo hearing, and to make clear that the proposed legislation was drafted in conformity with that decision. At the time s 16K was enacted, s 92(1) of the MCA was the source of a right of appeal from a final order of the Magistrates' Court in a criminal proceeding (other than a committal proceeding) to this Court on a question of law. That provision was in almost identical terms to its successor, s 272(1) of the CPA. There is nothing in the Attorney-General's speech that suggests that the only right of appeal from a judicial registrar's decision was to be that which is provided for in s 16K.

18 For completeness, I note two further matters. First, Mr Hardy advised that he was aware of appeals taken to the County Court, pursuant to s 254 of the CPA, against convictions and/or sentences imposed by judicial registrars. As Ms Hassan conceded, the logical extension of her submission is that those appeals must have been incompetent, yet the Director of Public Prosecutions, who takes up the running of such appeals on behalf of informants, had not submitted that such appeals were incompetent. Secondly, after the present appeal was heard, Dixon J heard and determined two appeals pursuant to s 272(1) in McWhirter v Dunlop; Tran v Harris [2013] VSC 697, the latter of which concerned orders of a judicial registrar. While that particular appeal was dismissed, there does not appear to have been any submission on behalf of the respondent that the appeal was incompetent.

19 Of course, a point must be taken for the first time and the Director's approach in other cases could not save an otherwise incompetent appeal. But the Director's approach in other cases does give me some comfort in construing s 272(1) as I have.

20 Accordingly, I reject the submission that the appeal is incompetent.

21 In his statement in the preliminary brief, the respondent said that he operated the moving mode radar (a Stalker Dual DSR - number MR459S - fitted to the police car) in "same direction mode" and detected the respondent's speed to be 129 kph.

22 The brief also contained a certificate declaring that, on 22 March 2012, the particular speed detector used had been tested and sealed in accordance with the Road Safety (General) Regulations 2009 (Vic). The respondent referred to that certification in his statement.

23 Section 79(1) of the Road Safety Act 1986 (Vic) permits proof of a motor vehicle's speed by reliance on evidence of speed as indicated by a prescribed speed measuring device only when it has been tested, sealed and used in the prescribed manner:

If in any criminal proceedings the speed at which a motor vehicle or trailer travelled on any occasion is relevant, evidence of the speed of the motor vehicle or trailer as indicated or determined on that occasion by a prescribed road safety camera or prescribed speed detector when tested, sealed and used in the prescribed manner is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the speed of the motor vehicle or trailer on that occasion.

24 Rule 46 of the Road Safety (General) Regulations 2009 prescribes the manner in which a radar device is to be used for the purposes of s 79:

A radar device is used in the prescribed manner for the purposes of section 79 of the Act if -

(a) whenever the operator connects the radar device to a source of electricity, the operator ensures that -

(i) in the case of the Falcon HR and the Raptor RP-1, all of the elements of the digital speed display are illuminated; and

(ii) in the case of all other radar devices, a reading of (888) is displayed on the digital target speed display; and

(b) the doppler audio signal of the radar device is set at a level clearly audible to the operator who may take a reading if the signal indicates normal operation; and

(c) in the case of the HR4, the Falcon, the Falcon HR, the Directional Talon and the Stalker II SDR, the operator activates the device with the device aimed in the direction of a motor vehicle within the operator's field of vision and observes the reading displayed on the digital target speed display; and

(d) in the case of the KR10SP, the Silver Eagle, the Silver Eagle II, the Stalker Dual DSR, the Directional Golden Eagle II, and the Raptor RP-1, the operator activates the device with the antenna set in the direction of a motor vehicle within the operator's field of vision and observes the reading displayed on the digital target speed display; and

(e) the device has been tested in accordance with regulation 42 within 12 months before the occasion of its use; and

(f) the device has been sealed in accordance with regulation 43 at the time that it was last tested.

25 Section 80 of the CPA provides that, if an accused does not appear in answer to a summons to answer to a charge for a summary offence, the Magistrates' Court may proceed to hear and determine the charge in the absence of the accused in accordance with Part 3.3 of the Act. Section 84(1) of the CPA provides inter alia that, if the informant has served a preliminary brief at least 14 days before the hearing and the court considers that the matters set out in that brief disclose the offence charged, the informant's statement and any exhibit referred to therein are admissible in evidence, subject to the court's ability to rule as inadmissible the whole or any part of a preliminary brief, a statement or an exhibit.

26 Mr Hardy submitted that there was no evidence that the radar had been used in accordance with rr 46(a)(ii) and (b). There was nothing in the respondent's statement indicating either that he had ensured that a reading of (888) had been displayed when connected to a source of electricity or that the doppler audio signal of the radar device was set at a level clearly audible to him or that any such signal had indicated normal operation. Further, he submitted that a presumption of regularity could not be relied on, and the necessary inferences could not be drawn, to fill the gaps in the evidence. In this regard, he relied on Impagnatiello v Campbell (2003) 6 VR 414, Sirajuddin v Ziino [2005] VSC 418; (2005) 14 VR 689 and Kirchner v Frede [2011] VSC 531, albeit that those cases, to a greater or lesser degree, dealt with different circumstances from the present. As a result, he submitted, it was not open to rely on the speed reading given by the radar.

27 Ms Hassan conceded that there was no express statement that the steps required by rr 49(a)(ii) and (b) had been performed. She submitted, however, in circumstances where the respondent had referred to, for example, the certificate and to operating the radar in "same direction mode", it could be inferred that he was aware of the rules and that he would have complied with those particular requirements as well. She relied on Chisholm v Matthews (1992) 16 MVR 447 in that regard, albeit that case also dealt with circumstances different from the present.

28 In my view, Mr Hardy's submission should be preferred. There is no evidence in the preliminary brief that the radar had been used in accordance with rr 46(a)(ii) and (b). Further, it was not open to infer that it had been so used. To do so would be to speculate. While I recognize that evidence is not necessarily to be understood by reference to the maxim expressio unius est exclusio alterius, it seems to me that, absent other evidence, no trier of fact acting reasonably could exclude the possibility of non-compliance with those provisions when the respondent expressly mentioned compliance with other related provisions. In those circumstances, it was not open to the judicial registrar to act on the reading given by the radar.

29 To be sure, the judicial registrar did not in his reasons say that he found that the appellant was travelling at 127 kph. However, given the assertion to that effect in both the brief and the charge, the period of licence suspension imposed, the fact that the Notice of Order Made recorded the charge as "Exceed 70 speed limit sign by 45k or more" and the fact that the same document recorded in the "Remarks" section the words "Speed 127 kph; Zone 70 kph", it is safe to infer that the judicial registrar sentenced on that basis.

Was it nevertheless open to find the charge proved?

30 But that is not the end of the matter. While the speed alleged in the charge was 127 kph, the charge was one of exceeding the speed limit, not of travelling at 127 kph. The allegation that the speed was in fact 127 kph was merely a potentially aggravating factor on sentence, albeit a very important matter. Thus, the next question is whether it was open on the admissible evidence to be satisfied that the appellant exceeded the speed limit.

31 Ms Hassan submitted that it was. Mr Hardy submitted that it was not. He said such a conclusion would involve speculation.

32 In my view, Ms Hassan's submission should be preferred. The question is not whether I would have been satisfied beyond reasonable doubt on the evidence that the appellant exceeded the speed limit but whether it was open to the judicial registrar to reach that conclusion.

33 I am of the opinion that it is open to characterize the respondent's remarks that the appellant was riding "at a fast rate of speed" and that he "accelerated at a fast rate of speed away from them", in context and putting aside the reading on the radar device, as implying a belief that the appellant was exceeding the speed limit. While there are borderline cases, both at common law and now under s 78 of the Evidence Act 2008 (Vic), evidence of this type is often admitted in proof of the speed at which something was moving.[5] The police were also moved to impound the motorcycle, which implies a belief in the need to do so. Further, the appellant's utterances to the respondent are capable of being treated as admissions to a belief that he was riding in excess of the speed limit. I accept that the respondent does not assert that he was travelling at 70 kph when the appellant accelerated away at a fast rate of speed. But, when regard is had to the evidence of the respondent's observation that the appellant accelerated away and to the evidence of the respondent and the appellant's beliefs, I think it was open to the judicial registrar to infer, beyond reasonable doubt, that the appellant exceeded the speed limit.

34 In those circumstances, it was open to the judicial registrar to find the charge proved. Thus, the finding of guilt must stand. But it was not open to say by how much the speed limit was exceeded. All that might be said is that it was sufficiently fast for both the respondent and the appellant to believe that the limit had been exceeded. Accordingly, the sentence must be set aside and the appellant must be resentenced.

Should the matter be remitted to the Magistrates' Court or dealt with in this Court?

35 I invited submissions on whether the matter should be remitted to the Magistrates' Court for further hearing and resentencing or dealt with by this Court in the event that I concluded that the finding of guilt should stand but the sentence should be set aside. Counsel made oral submissions at the hearing and subsequently filed written submissions as well.

36 Ms Hassan submitted that the matter should be remitted to the Magistrates' Court for rehearing on sentence. She also submitted that the respondent should be allowed to lead evidence at such a hearing to establish that rr 46(a)(ii) and (b) were complied with, so as to render admissible the evidence of the speed detected on the radar. Alternatively, she submitted that, at the very least, the respondent and the other officer should be allowed to give evidence of their observations as to speed. It was also submitted that the Magistrates' Court was the appropriate forum in which to conduct such a hearing, as it does so commonly and this would amount to a more efficient use of court time and resources.

37 Mr Hardy submitted that the matter should be dealt with in this Court. The respondent allowed the matter to proceed ex parte and on the basis of a defective preliminary brief and should not be allowed to seek to mend its hand now by leading fresh evidence. Rather, this Court should sentence on the basis of the admissible evidence as to speed contained in the preliminary brief. In those circumstances, it would be appropriate to deal with the mater in this Court.

38 Section 272(9) of the CPA provides that, after hearing and determining the appeal, this Court may make any order it thinks appropriate, including an order remitting the case for rehearing to the Magistrates' Court with or without any direction of law.

39 I accept Mr Hardy's submissions. In my view, it would be unfair to allow the prosecution to mend its hand at this late stage. Rather, the respondent should be held to the admissible evidence contained in the preliminary brief and presented to the judicial registrar on the ex parte hearing.

40 I considered remitting the matter to the Magistrates' Court for resentencing with a direction of law confining the sentencing facts in accordance with these reasons. But, now that I am seized of the matter, I think that it would be more efficient, and more appropriate, if I resentenced the appellant. A similar course was taken recently by Dixon J in McWhirter v Dunlop; Tran v Harris[6] and by Osborn J in Kirchner v Frede.[7]

41 The preliminary brief contains the appellant's "LEAP" criminal record, which I regard as irrelevant to the present matter, and, separately, his driving priors, which are of marginal relevance. Section 37 of the CPA provides that such histories are part of a preliminary brief. Section 86 provides such histories are admissible in ex parte matters, but only for the purposes of sentencing.

42 The appellant is aged 50. In 1986, when aged 22, he was fined $200 for exceeding the speed limit. In 1996, when 32, he was fined $105 for failing to comply with a "No trucks" sign.

43 The maximum penalty for a breach of r 20 of the Road Rules, in a case of exceeding the speed limit by less than 35 kph, is 10 penalty units.[8] That is the lowest category of breach. The fines are heavier for higher speeds. But, because it cannot be determined by how much the appellant exceeded the speed limit, his penalty must be considered by reference to the lowest category.

44 I note that, had the matter proceeded by way of an infringement notice on the basis that the speed exceeded the speed limit by less than 10 kph, which is the lowest category in the relevant schedule and which is the only appropriate conclusion on the admissible evidence in the preliminary brief, the infringement penalty would have been 1.25 penalty units.[9] At the time of this offence, a penalty unit was $140.84.[10]

45 Since the category of amount by which the speed limit was exceeded is likely to have implications for whether - and, if so, how many - demerits points are incurred by the appellant for this offence,[11] and since it is a relevant sentencing fact in any event, I will declare that the appellant is guilty of the offence of exceeding the speed limit at Keilor on 31 August 2012 and that he exceeded the speed limit of 70 kph by less than 10 kph.

46 Section 28(1)(a)(ii) of the Road Safety Act provides that, in a case of driving 25 kph or more in excess of the speed limit, the court must suspend for such time as the court thinks fit (not being less than the period specified Schedule 5) all licences and permits held by the driver. Schedule 5 provides that the minimum period of suspension for exceeding the speed limit by 25 kph or more, but less than 35 kph, is one month. Section 28(1)(b) provides that, in any other case, the court may suspend for such time as the court thinks fit. Again, because it cannot be determined by how much the appellant exceeded the speed limit, the issue of suspension must be considered by reference to the discretion in s 28(1)(b).

47 On 6 March 2013, an Associate Judge granted the appellant a stay of the orders of the judicial registrar pending the determination of this appeal. Thus, the appellant was suspended from driving from 31 January 2013 (which is the date the judicial registrar's order came into effect) until 6 March 2013 - a period of five weeks.

48 Subject to hearing any further submissions from counsel, I propose to convict the appellant and fine him $175. Again, subject to hearing from counsel, I do not propose to impose any period of licence suspension. The appellant has already served five weeks' suspension for an offence that, on the admissible evidence, would not have warranted any period of suspension in the first place. He also had his motorcycle impounded for 30 days.

49 Accordingly, and subject to hearing from counsel as to their precise form, I would make the following orders and declarations:

2. The sentencing orders of the Magistrates' Court made on 24 January 2013 (including the description of the charge in the Notice of Order Made as "Exceed 70 speed limit sign by 45k or more" and the remarks "Speed 127 kph; Zone 70 kph" in the same document) are set aside.

3. It is declared that the appellant is guilty of the offence of exceeding the speed limit at Keilor on 31 August 2012 and that the appellant exceeded the speed limit of 70 kph by less than 10 kph.

4. On the offence referred to in Order 3, the appellant is convicted and fined $175 (with a stay of one month in respect of payment of the fine).

[1] See also r 5 of the Magistrates' Court (Judicial Registrar) Rules 2005 (Vic).

[2] Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 95 per Mason CJ and Deane J; at 126 per Dawson J; at 164 per McHugh J. Mason CJ and Deane J (at 95) considered that a delegation to judicial registrars would be valid if the review or appeal by judges of same the court was on questions of law and fact but that, if the review is by way of hearing de novo, the delegation [c]ertainly" will be valid.

[3] See the Attorney-General Mr Hull's Second Reading Speech, Magistrates' Court (Judicial Registrars and Court Rules) Bill 2005, Hansard, Legislative Assembly, 21 April 2005, p 653.

[4] See the definition of "Court" in s 3(1) of the Magistrates' Court Act 1989 (Vic).

[5] See, e.g., R v Panetta (1997) 26 MVR 332; South Sydney Junior Rugby Leagues Club Ltd v Gioia [2000] NSWCA 249 at [4] per Meagher JA & [20] per Stein JA; but contra Powell JA at [9]-[18].

[6] McWhirter v Dunlop; Tran v Harris [2013] VSC 697 at [54]- [55].

[7] Kirchner v Frede [2011] VSC 531 at [17]- [21].

[8] Section 87(2)(a) provides that, in an ex parte hearing, the Magistrates' Court must not impose a fine exceeding 20 penalty units.

[9] See Item 10 of Schedule 7 to the Road Safety (General) Regulations 2009 (Vic).

[10] See s 11 of the Monetary Units Act 2004 (Vic).

[11] See s 25 of the Road Safety Act 1986 (Vic).