Appellant v Respondent

2 The appellant was subsequently charged with an offence under r 20(1) of the Road Safety Rules 2009. The matter went to a contested hearing in the Magistrates' Court on 2 May 2016. On that day the appellant was convicted of the charge of exceeding the speed limit by 45 kph or more, was fined $750 and suspended from driving for a period of 12 months from 2 May 2016.

3 By notice of appeal dated 30 May 2016, the appellant appealed the conviction on the grounds that there was no evidence upon which the Magistrate could conclude that the ProLaser III was used in the manner prescribed by s 79 of the Road Safety Act ('the Act') and reg 45(a) of the Road Safety (General) Regulations ('the Regulations'). Counsel for the appellant submitted that the appeal should be allowed, that the orders of the Magistrates' Court be quashed and in lieu thereof the Court find that the appellant's vehicle exceeded the speed limit by travelling 100 kph in an 80 kph zone, and that a reduced sentence reflecting that speed be imposed.

4 Counsel for the respondent submitted that the evidence before the Magistrate established compliance with s 79 of the Act and reg 45(a) of the Regulations, and that the appeal should be dismissed. As an alternative, it was submitted that, leaving aside evidence of speed derived from the use of the ProLaser III, other evidence at trial sufficiently established the speed of the appellant's vehicle at 125 kph, so that the charge and sentence should stand.

5 Evidence of speed using a prescribed speed detector is governed by s 79(1) of the Act, which provides:

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.

There is no dispute that the ProLaser III is a prescribed speed detector. The appellant conceded that the ProLaser III used by the respondent on 1 August 2015 had been tested and sealed as required. The issue in dispute was whether the ProLaser III was 'used in the prescribed manner'.

6 Pursuant to reg 41 of the Regulations, the ProLaser III is a 'prescribed speed detector' described as a laser device. The prescribed manner of use of laser devices is governed by reg 45, which 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.

The appellant concedes that the evidence establishes that the requirements in sub-paragraphs (b), (c) and (d) have been met. The only dispute is whether there was evidence that could establish that the requirements of reg 45(a) have been met.

7 In evidence given at trial the respondent said that on 1 August 2015 she was working with another officer, Sergeant Free, using a ProLaser III device to conduct speed detection duties. She said:

I observed a vehicle travelling at a fast rate of speed. I observed the vehicle overtake another vehicle at a substantial rate. I aimed the device at the vehicle and observed the digital display of 127 kilometres per hour, intercepted the vehicle, which was being driven by the accused.

8 The respondent gave evidence that she was qualified to operate the ProLaser III, and she produced her authority which was tendered. She was then asked:

Q: How would you describe that device with respect to the legislation?

A: So it's a ProLaser III, which is a prescribed device for measuring speed. The number was 208. At the commencement of the shift I checked that the seals were intact and I conducted and arranged an alignment check and found it to be operating correctly and repeated this check at the end of the shift as well.

The respondent went on to give evidence in relation to the certification of the laser device. The respondent confirmed that she had done the training course for such devices in 2014, and that she had been given a training manual. In cross-examination the respondent was asked:

Q: So what I'm suggesting is that your instrument has recorded a different vehicle or wasn't recording speeds correctly?

A: As I said, I conducted checks at the beginning and end of the shift and it was working correctly.

9 Counsel for the appellant submitted, first, that there was no evidence of the respondent or Sergeant Free which went to the requirements in reg 45(a). The regulation mandates that the operator of the ProLaser III, in this case the respondent, connect the device to a source of electricity then ensure that all elements of the speed display are illuminated. The evidence did not establish that this had been done by the respondent on 1 August 2015.

10 Second, evidence of the respondent that she 'found [the ProLaser III] to be operating correctly' related to the alignment check which the respondent said she undertook at the commencement of her shift. The evidence of the respondent that the ProLaser III was 'working correctly' given in cross-examination again related to the alignment check. Counsel for the appellant submitted that there is no legal requirement for an alignment check, and no evidence that what was done in conducting that check included the steps necessary to comply with the requirements of reg 45(a). There was no evidence that the alignment check involved the respondent connecting the laser device to a source of electricity, or ensuring that all elements of the speed display were illuminated.

11 Third, if it were thought that the respondent's evidence that the ProLaser III was 'operating correctly' and 'working correctly' related in some way to the reg 45(a) requirements, the evidence could not establish, beyond reasonable doubt, compliance with the requirements of the regulation.

12 Fourth, counsel for the appellant relied on previous decisions of this Court which he submitted demonstrated the legal requirement that a court have before it evidence of compliance with all aspects of reg 45.[1] The test was not whether the ProLaser III was 'operating correctly' or 'working correctly', but whether there had been compliance with the requirements of reg 45(a). There were constraints on inferences which could be drawn by the presiding magistrate from the evidence given at trial.[2] It was submitted that the evidence that the ProLaser III was working correctly, did not allow the inference to be drawn that there had been compliance with those requirements.

13 Fifth, to the extent that the Magistrate drew support for her findings regarding compliance from the fact that counsel for the appellant did not cross-examine as to the requirements of reg 45(a), that support was misplaced. The reg 45(a) requirements were an element of the offence for the prosecution to prove.

14 Counsel for the respondent submitted, first, that it was not necessary that a particular form of words be used to prove compliance with the requirements of s 79 and reg 45(a). The current case should be contrasted to the prosecution cases in McWhirter[3] and Roger,[4] each of which proceeded as an ex parte hearing in which the prosecution relied solely on evidence in the preliminary brief. Dixon J in McWhirter and Croucher J in Roger commented on the deficiencies in the preliminary brief in each case which resulted in there being no evidence of compliance with certain statutory requirements. By contrast, in the present case, there was viva voce evidence from the respondent that:

(b) before it was used, an alignment check was conducted by the respondent; and

(c) the respondent found the ProLaser III to be operating correctly.

The respondent argued that this evidence was unchallenged and should be accepted.

15 Second, it was submitted that in the context of the question which the respondent was answering, 'operating correctly' could only mean that the ProLaser III was operating in accordance with the regulations. In the context of the evidence, the Magistrate was entitled to draw an inference that reg 45(a) had been complied with.

16 Third, whilst it was correct to say that the prosecution bore the onus of proof of the elements of the offence, including compliance with reg 45(a), the deliberate lack of challenge to the evidence of the respondent meant that an inference adverse to the prosecution could not be drawn from the evidence that the ProLaser III was 'operating correctly'.

17 There are two elements of reg 45(a): first, the operator connecting the laser device to a source of electricity; and second, the operator ensuring illumination of all elements of the speed display. Both must be established by the prosecution beyond reasonable doubt.

18 I was told by counsel for the appellant during oral submissions that the ProLaser III can be powered by an internal battery or an external cable; that on this day it would have been powered by battery; that 'the operator connects the laser device to a source of electricity' when the operator turns the device on; and that until it is turned on 'it's just a dead device'. Counsel for the appellant submitted that there was no evidence from which an inference could be drawn as to the first element of reg 45(a). I disagree. In my view the evidence given by the respondent, set out in [8] above, establishes that the respondent turned on the ProLaser III in the process of checking that it was operating correctly and working correctly.

19 For the following reasons I conclude that the evidence does not establish compliance with the second element of reg 45(a). The regulation directs attention to the illumination of all elements of the speed display, rather than to the general operation of the ProLaser III. There was no evidence given describing the elements of the speed display. It was possible that the check by the respondent that the ProLaser III was operating correctly did not involve a check to ensure that all elements of the display were illuminated. I infer from the answer to the second question recorded in paragraph [8] above that 'working correctly' was evidence of the respondent that the ProLaser III was correctly recording speeds. However, that is not the requirement of the section. The evidence did not establish what was involved in ensuring all elements of the speed display were illuminated or whether this was necessarily part of an alignment check or a check that the device was correctly recording speeds.

20 Because the possibility exists that the alignment check and observation that the device was recording speeds correctly did not involve checking illumination of all elements of the speed display, the second necessary element of compliance with reg 45(a) was not proved. I agree that the appellant's argument on this point succeeds.

21 Counsel for the respondent submitted that, leaving aside evidence of speed derived from use of the ProLaser III, the other evidence given at trial established a speed of 125 kph.

22 The appellant gave evidence that he put his foot down to overtake a car on his left, and after some distance noticed a police car. At this point he checked his speedometer '... and it was around a hundred'. Whilst he accepted the possibility that at that point he had slowed down a little, he maintained a denial that he had travelled faster than about 100 kph.

23 The respondent's evidence was simply that she observed the appellant's vehicle travelling '... at a fast rate of speed'.

24 The respondent relies on the evidence of Sergeant Free that he had 18 years of speed detection experience and that he estimated the speed of the appellant's vehicle in a range of 125-130 kph. There were caveats to this evidence given by Sergeant Free. In examination in chief he said:

My estimation was in the range of 125 to 130 kilometres an hour. It might've been going a little bit faster or a little bit less, but that was my estimation upon seeing it and relative to the other vehicles, it was clearly much faster.

I would say if I've looked at a car and, yes, I believe it's doing approximately this, I'm usually within a five K range.

25 For the following reasons the evidence of Sergeant Free does not establish the speed of the appellant's vehicle at 125 kph. First, Sergeant Free expressed the speed range given by him as 'my estimation'. Second, Sergeant Free acknowledged the possibility that the speed of the appellant's vehicle might have been '... a little bit less'. Third, Sergeant Free said he was 'usually within a five K range'. This last piece of evidence means that even on Sergeant Free's estimation the speed might have been 120 kph, and that there were occasions when his estimations of speed were not so accurate.

26 The evidence of the respondent, Sergeant Free, and the appellant does not establish that the appellant's speed at the relevant time was 125 kph as alleged. I conclude that the evidence does establish, as is conceded by the appellant, that he was travelling 100 kph in an 80 kph zone.

27 I am empowered by s 272(9) of the Criminal Procedure Act 2009 (Vic) to make any order I consider appropriate, including an order remitting the matter to the Magistrates' Court. Counsel for the appellant submitted that, rather than remitting the matter to the Magistrates' Court, I should make appropriate orders disposing of the matter. The respondent made no submission opposing this course. I consider it is appropriate that I make orders disposing of the matter.

28 The amount by which the appellant's vehicle exceeded the speed limit may have implications for the imposition of demerit points.[5] In the circumstances, I will declare that the appellant is guilty of the offence of exceeding the prescribed speed limit of 80 kph by 10 kph or more but less than 25 kph.

29 The parties were agreed that a usual fine for exceeding the speed limit by 10 kph to 25 kph is $380. I consider that in the circumstances of this case that is an appropriate fine.

30 Counsel for the respondent noted that pursuant to s 28(1)(b) of the Act I am empowered to make an order suspending or cancelling the appellant's licence. However, no basis for me doing so was given. I understand that the appellant's car was impounded for one month from the date of the offence. By order of the presiding magistrate, the appellant's licence was suspended for a period of 12 months, commencing 2 May 2016. That order was stayed by order of Daly AsJ on 24 June 2016. In the circumstances, I do not propose to impose any period of licence suspension or cancellation.

31 I propose to make the following orders and declarations:

(1) The appeal from the order of the Magistrates' Court at Broadmeadows made 2 May 2016 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 Pascoe Vale South on 1 August 2015 and that the appellant exceeded the applicable speed limit of 80 kph by 10 kph or more but less than 25 kph.

(4) In respect of the offence referred to in order (3), the appellant is convicted and fined $380 (with a stay of one month in respect to the payment of the fine).

32 I will hear from counsel as to the form of the orders and as to the question of costs.

[1] McWhirter v Dunlop; Tran v Harris (2013) 238 A Crim R 360 ('McWhirter'), 376 [61]; Roger v Wojcik [2014] VSC 308 ('Roger'), [28].

[2] Impagnatiello v Campbell [2003] VSCA 154, [33]-[34].

[3] (2013) 238 A Crim R 360.

[4] [2014] VSC 308.

[5] Road Safety Act s 35.