Director of Public Prosecutions v Burns [2017] VSC 570

2 The stated question of law in the notice of appeal is:

Did the learned Magistrate err in law in dismissing the charges of dangerous driving and exceeding speed limit by placing undue weight upon evidence from Mr Burns as 'evidence to the contrary' to rebut the presumption in section 79 of the Road Safety Act 1968 [sic] as to proof of the speed of the motor vehicle driven by the accused as detected by the prescribed speed detector?

1. The orders made on 15 February 2017 by Magistrate Sargent in the Magistrates' Court at Ringwood Magistrates' Court in Case No. F12745017 be quashed.
2. The Charges in Magistrates' Court Case No. F12745017 be remitted back to the Magistrates' Court at Ringwood for hearing and determination according to law.
3. That the Respondent pay the Appellant's costs of this appeal, including any reserved costs.
4. Such further and other orders and relief as this Court deems appropriate.

4 The charges were issued and filed by a Senior Constable of Police, Daniel Seath ('the Informant'), on 14 June 2015; and the contested hearing of the charges proceeded at the Magistrates' Court at Ringwood on 15 February 2017.

5 The evidence before the Magistrate, which is relied upon by the DPP, has been summarised by a solicitor employed at the Office for Public Prosecutions as follows:

(a) On Tuesday 10 March 2015, the Informant and Senior Constable Spurrell were performing traffic patrol and speed detection duties in an unmarked police vehicle. They were in full police uniform.

(b) The police officers parked in Warrien Road, Croydon North, facing north about 30 metres south of Hawthorne Way. The applicable speed limit was 50 kilometres per hour.

(c) The police officers were using a Radar Speed Detector and a Prolaser III Laser Speed Detector. The Informant sat in the car and monitored the Mobile Radar Speed Detector. Senior Constable Spurrell stood outside the vehicle with the Laser Speed detector.

(d) At about 5:00 pm, Senior Constable Spurrell saw a Mercedes Benz, registration number VAF710, driven by the Respondent, travelling south on Warrien Road towards the police officers.

(e) The Informant and Spurrell were alerted to a fast approaching car by the rapidly increasing sound of the Doppler audio on the Radar Speed Detector. The Informant looked up and saw the Mercedes Benz, registration VAF 710, travelling towards them at a very fast rate of speed.

(f) Senior Constable Spurrell, activated the Laser Speed Detector. The speed was checked at 106 km/h at a distance of 179.1 metres.

(g) Senior Constable Spurrell attempted to flag down the vehicle. Instead the vehicle turned right into Hawthorne Way. Spurrell stepped into the police vehicle. The police vehicle followed the Mercedes Benz into Hawthorne Way with the lights and the siren activated.

(h) The vehicle was intercepted in Oaktree Road. Senior Constable Seath spoke to the Respondent who confirmed his identity by producing his Driver Licence.

(i) A digitally recorded field interview was conducted by the Informant, who informed the Respondent that he was 'travelling at 106 km/h in a 50 zone, which is 56 km/h over the limit'. The Respondent replied 'I wasn't doing that fast male. Look my wife suffers from a, she's had a kidney transplant. I promised her I'd be home at 5 o'clock, and if I was going a little quicker than I should have been, I wasn't doing 106 km/h'.

(j) The Respondent was advised that the offences would be reported and he would receive a summons to attend court. He was also advised that his vehicle would be impounded by way of appointment.

(k) At about 8:20 pm that same day, the Informant attended the Respondent's address [...] and served him with a Notice to Surrender Motor Vehicle.

6 I summarise Mr Burns' evidence from the transcript as follows:

(a) On 10 March 2015, he was driving his Mercedes Benz vehicle south on Warrien Road, Croydon North at about 5:00 pm. He drives the road 20 to 30 times a week.

(b) On 10 March 2015, he turned his Mercedes Benz vehicle from Exeter Road to travel south on Warrien Road; and there were at least 11 or 12 cars in front of him. He said he was not able to get even to the speed limit of 50 kph because of cars turning right and other cars in front of him, which were obstructed by parked cars because of oncoming cars.

(c) In the 100 metres north of a parked car, he said that 'we were all braking and having to stop'.

(d) About 50 or 60 metres north of Hawthorne Way (into which he ultimately turned right) there was a parked car, a blue Mazda 323, which required him to 'sit and wait' while oncoming cars cleared.

(e) After he overtook the parked car, he travelled only 57 metres before he turned right into Hawthorne Way.

(f) He said that he observed a green Commodore going at 'incredible high speed'.

7 After the evidence of the two police officers and Mr Burns, the Magistrate dismissed the charge and gave the following reasons:

HIS HONOUR: This is almost like dealing with two different cases in terms of the accounts given. Obviously there's some overlap but, in any event, Mr Burns is facing two charges related to 10 March 2015 in Warrien Road in Croydon North, one charge of driving at a speed dangerous, and the other, the related speeding charge with an alleged speed of 104 in a 50 zone, which is a read down from 106 that the court has heard evidence of a Pro Laser III properly-operated device gave.

The police evidence is that the accused vehicle was brought to their attention by two different means, effectively - by, I guess, initially the Doppler audio signal of the radar inside the vehicle. At the time, Leading Senior Constable Spurrell was outside the vehicle, with the Pro Laser III device and both he and Senior Constable Seath have given evidence of observing the accused vehicle approaching theirs, but then turning right.

Mr Burns driving that vehicle was heading home. He has stated that - or given evidence, of course, that he was contained in traffic and would have been certainly unable to reach anything like that speed given the surrounding conditions. There's no issue that the vehicle was capable of it, most vehicles would be these days. But, in any event, he says that the traffic conditions - he could not have been going that fast.

He also says that in fact he had prior to being intercepted been held up behind a parked vehicle, which he's further identified as a blue Mazda 323, I think it was, or was it 626? Anyway, it's a blue Mazda. I remember that bit. That's the important part.

The issue about whether or not there were other vehicles in the vicinity at the material time is, as I've alluded to, couldn't be more different. The police recollection is that there were no other vehicles along the distance of the road at the material time, although Senior Constable Seath indicated that there had been vehicles prior to, but he said, at the material time he doesn't recall any other vehicles. Mr Burns does, and as we've already alluded to - and that's partly what I was referring to really when I made a comment at the outset of these findings, that it's almost like dealing with two different cases.

In the end, I found the police evidence to be clear and concise. The device, at least insofar as the Pro Laser 3, which is the device that is being relied upon by the police, appears to have been properly operated and set up, again in a proper manner and operated by an experienced operator.

I found Mr Burns also to give clear evidence about the matter and I found his evidence to be consistent in terms of what he told the police during the conversation, certainly in circumstances where Mr Burns didn't have any time or opportunity to consider or reflect on what he was going to say, and his evidence today was consistent with that and, of course, not surprisingly, contained more detail in it.

I found Mr Burns to be a credible witness. As I'm hopefully getting the maths right, I make him to be 44 years old. He made a reference to having been driving for 25 years. There's also some reference to other driving experience but of course looking at just this particular instance, in the end - and the reading is extremely high and it's certainly the sort of reading that a driver could not possibly be aware of that they were doing even without looking at the speedometer, perhaps not to the exact kilometre but such an excessive speed would be well and truly known.

Obviously drivers have a self-interest in either playing down what's happened or denying it outright. The police officers, effectively, don't, they're carrying out their duties, and sometimes that is a telling factor. But in this case I can't be sure that without actually understanding how it might have come about [sic].

But I found Mr Burns's evidence sufficiently compelling that I have a reasonable doubt about the reading given by the device, not that it was operated, as I say, incorrectly, and notwithstanding the suggestion of corroboration, effectively, by the radar, but nevertheless I found Mr Burns's evidence to be sufficiently persuasive to create a doubt about the matter. So in those circumstances, of course with the prosecution bearing that onus, I have to dismiss the charge.

8 It was submitted by counsel for the DPP that, pursuant to s 79 of the Road Safety Act 1986, in the absence of evidence to the contrary, the reading of the Laser Speed Detector was proof that Mr Burns' vehicle was travelling at the alleged speed of 104 kph. It was submitted that the Magistrate had failed to consider the question of whether there was evidence to the contrary, which required the Magistrate to be satisfied that such evidence was 'to the opposite effect' and had some weight.[1] However, counsel for the DPP conceded (in my opinion properly) that, on the basis that the Magistrate had decided that there was sufficient evidence to raise a reasonable doubt, it would be pointless to send the matter back for determination of this issue.

9 Counsel for the DPP acknowledged that, in those circumstances, in order to raise a question of law, as would be required in the appeal before me, the Court must find that it was not open for the learned Magistrate to find the respondent not guilty.

10 Counsel for the DPP submitted that, on the evidence before the Court, the Magistrate was bound to find the charges proved against Mr Burns for the following reasons:

(a) There was evidence from two police officers, which the Magistrate found to be 'clear and concise'; and their evidence was inconsistent with the evidence of Mr Burns.

(b) The Magistrate was compelled to reject Mr Burns' evidence because after he was intercepted he conceded that he had not looked at his speedometer and that he was 'going faster than I should have been. It was a silly mistake on my behalf'. These concessions were inconsistent with Mr Burns' evidence that he could not have reached the speed alleged.

(c) The evidence of a properly tested and operated Laser Speed Detector indicating that Mr Burns' vehicle was travelling at 106 kph was strong evidence even without the statutory presumption in s 79 of the Road Safety Act 1986.

11 Counsel for Mr Burns submitted that, as the appeal was only on a matter of law, it could only succeed if this Court was to conclude that it was not open to accept the sworn evidence of his client. He submitted that there was ample evidence capable of supporting the Magistrate's decision and in particular referred to the following:

(a) Internal inconsistency in the evidence of [Senior Constable] Spurrell as to when he first saw the Respondent's vehicle 600 metres as opposed to 400 metres.

(b) The informant was not being in a position to deny that 300 metres prior to where the Police vehicle was located the Respondent's vehicle had stopped for traffic.

(c) Contemporaneously the Respondent specifically referred to large amount of traffic in the area at the time in conversations with the Informant.

(d) The Road where the incident is a known cut-through and rat run.

(e) The evidence of the Corroborator [Senior Constable Spurrell] in contrast to the Informant left it open to conclude there was a divergence of evidence as to whether the Informant had operated the laser device during the day of the incident.

(f) The observation by all 3 witnesses as adopted by the Prosecutor that for want of a better term within the relevant 'time frame' there had been considerable traffic around about the time of the incident.

(g) The corroborator ultimately agreed that the road the Respondent was travelling on was not wide enough to have three vehicles abreast.

(h) The Contemporaneous answer given by the Respondent it was impossible that his car did that speed?---He may have.

(i) The Corroborator and Informant giving conflicting evidence as to whether there was any conversation between them immediately after allegedly detecting the Respondent speeding.

(j) The corroborator conceded there could have been car/s parked in the vicinity of the Respondent's vehicle.

(k) The Informant conceded he briefly lost sight of the vehicle he was pursuing.[2]

12 Section 79(1) of the Road Safety Act 1986 provides as follows:

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.

13 This appeal has been brought by the DPP on a question of law pursuant to s 272(1) of the Criminal Procedure Act 2009 which provides as follows:

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.

14 Archetypal examples of questions of law have been identified as follows:

(a) Whether the court has identified the relevant legal test?

(b) Whether the court applied the correct legal test?

(c) Whether there is any evidence to support a finding by the court of a particular fact?

(d) Whether the facts found fall within a statute properly construed?[3]

15 The DPP contends that the error of law made by the Magistrate in this case was in the nature of that described in sub-para [14(c)] above. The relevant question to be asked in determining whether there has been an error on this basis is:

(a) whether there was 'any evidence upon which the magistrate might, as a reasonable person, come to the conclusion' reached;[4] or

16 As Cavanough J observed in Victoria v Subramanian,[6] these two formulations should be regarded as substantially equivalent.[7]

17 In ASA Nominees Pty Ltd v Owners Corporation PS 513436B,[8] Derham AsJ identified the question as whether there was any probative evidence to support the conclusion,[9] adopting the adjective used by Batt J in Roads Corporation v Dacakis.[10]

18 On the basis that 'probative' evidence is evidence 'upon which a magistrate might, as a reasonable person, come to a conclusion', this test is no different. In fact, the appropriate question may simply be whether there is relevant evidence - given that 'evidence which is relevant according to s 55 [of the Evidence (National Uniform Legislation) Act (NT)[11]] and admissible under s 56 is, by definition, "probative".'[12]

19 However, it is unnecessary for me to finally determine this question as, on any view of the tests expressed above, I would form the same ultimate conclusion in this appeal.

20 From the notice of appeal, it can be seen that the alleged error in law was expressed to be consequent upon the Magistrate 'placing undue weight' on the evidence of Mr Burns. As Osborn JA observed in Karakatsanis v Racing Victoria Ltd, 'This is not a proper form of ground on an appeal on a question of law'.[13]

21 Counsel for the DPP, in submissions before the Court, eschewed the 'undue weight' ground and, as noted in [9] above, contended that it was not open to the Magistrate to accept the evidence of Mr Burns in the face of the contrary evidence referred to in [5] above. Put in this way, the submission still invites this Court to weigh the evidence before the Magistrate in a manner which is not appropriate on an appeal of this type.

22 In any event, I consider it untenable to suggest that it was not open to the Magistrate to find that there was a reasonable doubt that Mr Burns was guilty of the offence as charged. Mr Burns gave evidence consistent with his innocence and the Magistrate found him to be a credible witness. Such is sufficient to dispose of this appeal, but I will simply add the following:

(a) Mr Burns gave sworn evidence before the Magistrate and the Magistrate found him to be a 'credible witness'. The Magistrate noted that Mr Burns had not looked at the speedometer and had a self-interest in denying the charges, but, nonetheless, found his evidence to be 'sufficiently compelling that [he had] a reasonable doubt about the reading given by the device'.

(b) Mr Burns denials of the speed alleged and his evidence about the state of traffic were substantially consistent with his statements made to the police on interception.

(c) It is a mischaracterisation to say that the Magistrate accepted the evidence of Mr Burns as truthful and rejected the evidence of the police officers relating to the reading of the Laser Speed Detector. Rather, he noted that the accounts given were 'two different cases'; and properly addressed the question of whether he had a reasonable doubt about the prosecution case. After considering the strength of the case for the prosecution he 'nevertheless ... found Mr Burns' evidence to be sufficiently persuasive to create a doubt about the matter'. Accordingly, the Magistrate dismissed the charges.

23 I do not consider that the Magistrate made any error of law; and I propose to dismiss the appeal.

[1] DPP v Cummings [2006] VSC 327; (2006) 46 MVR 84, 91 [35] (Kellam J); Agar v Petrov [2015] VSC 168 [33] (McDonald J).

[2] Transcript references omitted. Emphasis in original.

[3] Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd (2014) 45 VR 771, 783 [48] (Warren CJ), 805-6 [167] (Whelan JA, with whom Santamaria JA agreed); cited in Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167, 180-1 [45] (Garde AJA, Tate and Kyrou JJA agreeing).

[4] Formulated by Cavanough J in Victoria v Subramanian [2008] VSC 9; (2008) 19 VR 335, 347-8 [32] (emphasis in original) and Williams J in Ramus v Continence Foundation of Australia Ltd [2014] VSC 477 [108] from Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1, 11 (Stephen J) as adopted by the Court of Appeal in Cehner v Borg [2003] VSCA 72 [17] (Chernov JA with whom Batt and Eames JJA agreed).

[5] S v Crimes Compensation Tribunal (1988) 1 VR 83, 89-91 (Phillips JA, with whom Callaway JA and Hedigan AJA agreed).

[6] [2008] VSC 9; (2008) 19 VR 335.

[8] [2016] VSC 562.

[9] Ibid [49(a)]; adopted by Croft J in Pin Oak Holdings Pty Ltd v Risi Pty Ltd [2016] VSC 773 [21(a)] and Casa Di Iorio Investments Pty Ltd v Guirguis [2017] VSC 266 [29(a)].

[10] [1995] VicRp 70; [1995] 2 VR 508, 520.

[11] Which is relevantly identical to s 55 of the Evidence Act 2008 (Vic).

[12] IMM v The Queen (2016) 257 CLR 300, 312 [40] (French CJ, Kiefel, Bell and Keane JJ).

[13] [2013] VSCA 305; (2013) 42 VR 176, 185-6 [21] (Beach JA agreeing), citing ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180; (2008) 20 VR 447, 464-5 [65]-[69] (Warren CJ, Kellam JA and Osborn AJA).