Appellant v Respondent

1 On 2 May 2013, the respondent filed a charge against the appellant alleging that, on 26 January 2013, the appellant drove a motor vehicle at a speed in excess of the applicable speed limit of 60 kph, in contravention of rule 20 of the Road Safety Road Rules 2009. The summons alleged a speed of 100 kph, based on a speed of 102 kph measured by a prescribed speed detector.

2 The charge and summons, together with a preliminary brief of evidence, were served on the appellant in accordance with s 36 of the Criminal Procedure Act 2009.

3 The matter was listed for hearing at the Bendigo Magistrates' Court on 20 August 2013. At the request of the appellant, the matter was adjourned until 23 August 2013, to enable counsel to attend to represent the appellant. On 23 August, neither the appellant nor her legal representative attended the court. Accordingly, the magistrate heard and determined the matter ex parte in accordance with s 80(1)(c) of the Criminal Procedure Act. In doing so, the magistrate received in evidence the informant's statement in the preliminary brief, and the exhibits referred to in that statement, pursuant to s 84(1) of the Criminal Procedure Act.

4 In his statement, the respondent (as informant) stated that on 26 January 2013, at approximately 12.00 pm, the appellant drove her vehicle south along Taylor Road, Epsom. He noted that at that point the applicable speed limit was 60 kph as defined by complying speed signs, which were erected and visible to the appellant. The respondent then stated:

The police informant Senior Constable Steve Bice saw the accused vehicle travelling at a fast rate of speed and used a hand held Prolaser III, a prescribed speed detector which revealed that the accused vehicle was travelling at an alleged speed of 120 kph (detected 102 km/h).

The accused was intercepted and produced a full Victorian photographic driver licence. The accused was issued with a traffic infringement notice carrying an on the spot penalty of $599. The accused elected to have the matter heard in court. ... .

5 At the foot of the statement, under the sub-heading "Statement made by accused", was noted the following:

Reason

Exceed speed limit: "I've been sick for the last week, I'm trying to get to a toilet".

6 The preliminary brief also contained a certificate, under s 83 of the Road Safety Act 1986, stating that the speed detector had been tested in accordance with the Road Safety (General) Regulations 2009 on 27 July 2012, that the test confirmed that the device was operating correctly in accordance with the requirements of those regulations, and that the device had been properly sealed in accordance with those regulations.

7 Based on that evidence, the magistrate found that the charge against the appellant was proven. The magistrate fined the appellant $600 with $73.20 costs, and made an order suspending the appellant's driver's licence for a period six months from 23 August 2013.

8 The appellant has appealed the magistrate's decision pursuant to s 272 of the Criminal Procedure Act, on the basis that the evidence of the appellant's speed, as detected by the laser device, was inadmissible, because the respondent had failed to prove that that device had been used in the "prescribed manner" as required by s 79(1) of the Road Safety Act 1986. On 9 October 2013, Lansdowne AsJ made an order staying the decision of the magistrate until the determination of the appeal.

9 It is common ground that the evidence as to the appellant's speed, as detected by the laser device, was not admissible in evidence before the magistrate. The issues, which remain, concern the consequence of the receipt of that evidence by the magistrate.

10 Section 79(1) of the Road Safety Act 1986 provides:

(1) 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.

11 Regulation 45 of the Road Safety (General) Regulations 2009 provides:

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

(a) whenever the operator connects the laser device to a source of electricity, the operator ensures that all elements of the speed display are illuminated; and

(b) 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 speed display; and

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

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

12 Mr S Hardy, who appeared on behalf of the appellant, submitted that the respondent had failed to prove compliance with subparagraph (a) and subparagraph (b) of regulation 45. Mr B Kissane SC, who appeared on behalf of the respondent, submitted that there was sufficient evidence of compliance with subparagraph (b), but he conceded that there was no evidence before the magistrate of compliance with subparagraph (a). Mr Kissane further conceded that, as a result, the evidence of the reading produced by the laser device was not admissible before the magistrate pursuant to s 79(1) of the Road Safety Act.

13 While it is not necessary for me to decide the point, I accept the submission by Mr Kissane that there was sufficient evidence of compliance by the respondent with subparagraph (b) of regulation 45. That evidence consisted of the respondent's statement that he saw the appellant's vehicle travelling at a fast rate of speed, and that he used the device, which revealed that the appellant's vehicle was travelling at 102 km/h. However, I agree with the concession made by Mr Kissane that there was no evidence before the magistrate of compliance with subparagraph (a) of regulation 45. It is accepted that the evidence of the speed of a vehicle, as detected by a device, is not admissible, unless the prosecution proves beyond reasonable doubt compliance with each of the four matters prescribed by regulation 45.[1] It therefore follows that the evidence, as to the measurement by the laser device of the speed of the appellant's vehicle, was not admissible before the magistrate.

14 The fact that the appellant did not appear before the magistrate to dispute the charge did not, of course, affect the requirement that the prosecution prove, beyond reasonable doubt, each of the constituent elements of the offence with which the appellant was charged.[2] The question, which thus arises, is whether there was other admissible evidence before the magistrate, that was sufficient to support the conviction of the appellant.

15 It is well established that, upon the hearing of an appeal against a conviction in a Magistrates' Court on a point of law, if the appellate court concludes that evidence was improperly admitted before the Magistrates' Court, the appellate court is not obliged to set aside the conviction, or remit the case for rehearing, if, on the admissible evidence before the magistrate, the appellant nevertheless should "clearly have been convicted" on the admissible evidence adduced before the magistrate.[3]

16 Mr Kissane submitted that, apart from the speed of the appellant's vehicle detected by the laser device, there was other admissible evidence before the magistrate, upon which the appellant should have been convicted of the charge brought against her, namely, driving her vehicle at a speed in excess of the applicable speed limit. In particular, Mr Kissane relied, first, on the evidence of the respondent that he saw the appellant's vehicle travelling at a fast rate of speed, and, secondly, the evidence of the respondent that, when he asked the appellant as to the reason why she exceeded the speed limit, she responded that she had been sick for the last week and was trying to get to a toilet. Mr Kissane submitted that that second piece of evidence constituted an admission by the appellant that she had driven her vehicle in excess of the speed limit, which was sufficient to sustain the conviction of the appellant on the charge brought against her.

17 On the other hand, Mr Hardy submitted that the respondent, in his statement, had not provided any relevant context to the remark which was made to him by the appellant. Mr Hardy submitted that the words "reason - exceed speed limit" did not denote any question asked by the respondent of the appellant. Mr Hardy submitted that, in any event, the remark attributed to the appellant - that she had been sick and wanted to go to the toilet - was equivocal, and was not capable of constituting proof, beyond reasonable doubt, that the appellant had admitted committing the offence of exceeding the prescribed speed limit.

18 In my view, the submission made by Mr Kissane is correct. The evidence of the respondent, as contained in his statement, was uncontested and uncontradicted. The magistrate was entitled to rely on that evidence. It is clear, from that statement, that the respondent had asked the appellant to provide a reason why she had exceeded the speed limit. In the context of the matters described in the statement, the words "reason - exceed speed limit" comprise a paraphrase by the respondent of the question which he asked of the appellant. The respondent had intercepted the appellant because she was observed travelling at a fast rate of speed, and because he had used a prescribed speed detector to measure her speed. Section 37(2)(c) of the Criminal Procedure Act requires that the statement by the informant, in the preliminary brief, must include a summary of any statements made by the accused "... concerning the alleged offence, including any confession or admission". The respondent's evidence, contained in his statement, was that the applicable speed limit (60 km/h) was denoted by signs that were erected, and that were clearly visible to the appellant. Thus, the respondent's question to the appellant was directed to the allegation that the appellant had exceeded that speed limit. In response to that question, the appellant did not contest that allegation. Rather, and to the contrary, she provided an explanation as to why she had exceeded the speed limit. In doing so, she thus impliedly admitted that she had (as alleged by the respondent to her) exceeded the speed limit.

19 That evidence, alone, was sufficient, to support the conclusion that, apart from the inadmissible evidence as to the reading produced by the prescribed speed detector, the evidence before the magistrate was such that the appellant clearly should have been convicted of the charge brought against her.[4] In addition, that evidence gained some support from the evidence of the respondent (in his statement) that he had observed the appellant's vehicle "travelling at a fast rate of speed".

20 The effect of the conclusions, which I have reached, is that, apart from the inadmissible evidence of the measurement by the laser device as to the actual speed at which the appellant drove her vehicle, there was clear evidence establishing, beyond reasonable doubt, that the appellant had driven her vehicle at a speed in excess of the prescribed limit. Thus, it follows that the conviction, recorded by the magistrate, for breach of rule 20 of the Road Safety Road Rules 2009, should stand.

21 The magistrate imposed a sentence, as prescribed by s 28(1) of the Road Safety Act, based on the evidence of the speed of the appellant's vehicle as detected by the laser device. In order to sustain that penalty, the prosecution bore the onus of proving that the appellant drove her vehicle at a speed which was at least 25 kph in excess of the prescribed speed limit.[5] As the penalty, imposed by the magistrate, was based on evidence, that was inadmissible, it must be set aside. The only admissible evidence, as to the commission of the offence, was constituted by the implied admission by the appellant that she had driven in excess of the speed limit, combined with the evidence of the respondent that he observed the appellant's vehicle travelling at a fast speed.

22 The question, then, is whether I should remit the case to the magistrate to determine the question of penalty, or whether I should decide it pursuant to s 272 of the Criminal Procedure Act. It is well established that if the court, on an appeal from a decision of a magistrate, concludes that the evidence, adduced before the magistrate, was insufficient to justify a conviction, the case should not be remitted to the lower court for a further hearing.[6] Consistent with that principle, in other decisions which are similar to this case, judges of this Court have declined to remit the matter to the magistrate to enable the prosecution to adduce more specific evidence on the question of penalty, such as evidence as to the speed detected by a device.[7] In my view, as a matter of principle, such an approach is correct in the present case.

23 In those circumstances, the most efficient, and appropriate, method of disposing of the case is for me to re-sentence the appellant. All of the evidence, relevant to such a process, that was before the magistrate, has been tendered in the hearing before me. That evidence was uncontested.

24 Based on the admissible evidence, the appellant was convicted of the offence of exceeding the prescribed speed limit of 60 kph, in a built up area. The preliminary brief reveals that she has no previous convictions. There is no admissible evidence before me as to the speed at which the appellant was driving her vehicle. Thus, there is no admissible evidence as to the extent to which the appellant's vehicle exceeded the prescribed speed limit. In those circumstances, I propose to adopt an approach similar to that of Croucher J in Rodger v Wojcik.[8] I shall convict the appellant and impose a fine of $300.

25 Since the amount, by which the speed limit was exceeded by the appellant's vehicle, may have implications for the imposition of demerit points,[9] I shall declare that the appellant is guilty of the offence of exceeding the prescribed speed limit of 60 kph by less than 10 kph.

26 Thus, the appeal shall be allowed in part, the sentencing orders of the magistrate shall be set aside, and, in lieu of those orders, the appellant shall be convicted, and fined $300, together with the statutory costs of $73.20.

27 At the hearing of the appeal, I canvassed with counsel the question of costs, based on the different possible outcomes of the appeal. Mr Hardy submitted that, in the event that I reach the conclusions that I have formed, the appellant should be awarded her costs of the appeal. He submitted that, in such an event, grounds 3 and 5 of the grounds of appeal would have been successful. Thus, the appellant would have succeeded in large measure on her appeal. He submitted (in response to a question from myself) that there was no onus on the appellant to raise the point, on which the appeal succeeded, before the magistrate. Rather, he contended that it was for the magistrate, and the prosecutor, to have ensured that there was admissible evidence before the magistrate as to the speed at which the appellant's vehicle had been travelling.

28 On the other hand, Mr Kissane submitted that there should be no order for costs. In particular, he submitted that, that if I were to reach the conclusion that I have formed, the conviction of the appellant would stand. Thus, the appellant would only have succeeded in part, and the respondent would have succeeded, particularly, on the question whether the conviction of the appellant was based on admissible evidence. In that respect, Mr Kissane noted that the question of law, stated in the notice of appeal, was directed to whether there was sufficient admissible evidence before the magistrate to support a finding that the appellant's motor vehicle was detected at a speed in excess of the speed limit. The appellant failed on that question of law, and therefore she should not be granted her costs.

29 In my view, there should be no order as to the costs of this appeal for two reasons, each of which, alone, is sufficient to deny the appellant her costs. First, the appellant only succeeded in part. In particular, the appellant failed, on appeal, to set aside her conviction for the offence with which she had been charged. Further, as Mr Kissane correctly pointed out, the appellant failed to obtain an answer, in her favour, on the one question of law that was stated in the notice of appeal.

30 Secondly, the point, on which the appeal has succeeded, was not taken by or on behalf of the appellant in the Magistrates' Court. As I have already noted, when the case initially came on for hearing in that Court, it was adjourned specifically to enable the appellant to be represented by counsel. On the adjourned date, neither the appellant nor counsel appeared before the magistrate. Thus, the point now taken on appeal was not raised before the magistrate. The point, on which the appeal succeeded, is not one of substance. It is technical in nature, consisting of the failure of the informant, in the summary statement contained in the brief of evidence, to establish one of the four pre-requisites to the admissibility of the measurement of the speed of the vehicle driven by the appellant.

31 Certainly, as Mr Hardy pointed out, the fact that the case was heard in the absence of the appellant did not affect the obligation of the informant to prove each of the elements of the charge beyond reasonable doubt.[10] However, it is well recognised that, in an appropriate case, a successful party on an appeal may be refused the costs of the appeal, if the appeal has succeeded on a ground which the party did not raise in the court below.[11] In my view, based on the facts I have outlined, it is appropriate to decline to make an order for costs in favour of the appellant for that reason.

32 In those circumstances, and subject to hearing from counsel, I propose to make the following orders in this matter:

(1) The appeal from the order of the Magistrates' Court at Bendigo dated 23 August 2013 is allowed in part.

(2) The sentencing orders of the Magistrates' Court are set aside.

(3) It is declared that the appellant is guilty of the offence of exceeding the speed limit at Epsom on 26 January 2013 and that the appellant exceeded the applicable speed limit of 60 kph by less than 10 kph.

(4) On the offence referred to in order number 3, the appellant is convicted and fined $300 (with a stay of one month in respect of the payment of the fine), and ordered to pay $73.20 statutory costs.

(5) There shall be no order as to the costs of the appeal (including reserved costs).

[1] See for example Challis v Williams [2013] VSC 490, [6] (Williams J); McWhirter v Dunlop [2013] VSC 697, [41], [44] (Dixon J); Rodger v Wojcik [2014] VSC 308, [28] (Croucher J).

[2] Hannon v Norman [2006] VSC 228, [21] (Gillard J).

[3] See Knox v Bible (No 2) [1907] VicLawRp 87; [1907] VLR 485, 497 (Cussen J); Chappell v A Ross & Sons Pty Ltd [1969] VicRp 48; [1969] VR 376, 394 (Gowans J); Walford v McKinney [1997] 2 VR 353, 356 (Tadgell JA).

[4] See also Kirchner v Frede [2011] VSC 531, [17] (Osborn J); Challis v Williams [2013] VSC 490, [7]; McWhirter v Dunlop [2013] VSC 697, [44]; Rodger v Wojcik [2014] VSC 308, [33].

[5] Cf R v Storey [1998] 1 VR 359, 369 (Winneke P, Brooking and Hayne JJA and Southwell AJA); R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 281 [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

[6] Reid v The Queen [1980] AC 343, 348-9; Andrews v R [1968] HCA 84; (1968) 126 CLR 198, 211 (Barwick CJ, McTiernan, Taylor, Windeyer and Owen JJ).

[7] McWhirter v Dunlop [2013] VSC 697 (Dixon J); Rodger v Wojcik [2014] VSC 308, [39] (Croucher J).

[8] [2014] VSC 308.

[9] Road Safety Act 1986 (Vic) s 25.

[10] Hannon v Norman [2006] VSC 228, [21] (Gillard J).

[11] Drew v Moubray [1890] VicLawRp 99; (1890) 16 VLR 484, 495; McCracken & Anor v Dacomb & Anor [1890] VicLawRp 76; (1890) 16 VLR 378, 385-6; Armstrong v Boulton [1990] VicRp 20; [1990] VR 215, 223; Deas v Issa (No 2) [2013] FCA 1145.