Pappas v Mirenda [2021] ACTSC 329

Legislation Cited: Road Transport (Road Rules) Regulation 2017 (ACT), s 20 Road Transport (Safety and Traffic Management) Act 1999 (ACT), ss 22A, 25

Cases Cited: R v Masina (No 3) [2020] ACTSC 154 WGC v The Queen [2007] HCA 58; 233 CLR 66

Parties: John Pappas (Appellant) Gregory Mirenda (Respondent)

Representation: Counsel T Taylor (Appellant) K McCann (Respondent)

Solicitors Hugo Law Group (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: SCA 28 of 2021

Decision under appeal: Court/Tribunal: Magistrates Court of the ACT Before: Chief Magistrate Walker Date of Decision: 6 August 2021 Case Title: Mirenda v John Pappas Court File Number: CAN40783/2020 MOSSOP J:

Introduction

1. This is an appeal from a conviction imposed by a magistrate. The appellant, John Pappas, was found guilty of speeding contrary to s 20 of the Road Transport (Road Rules) Regulation 2017 (ACT) (Road Rules Regulation). He was fined $400.

Overview of the case

2. The charge against the appellant was as follows:

On 1 February 2020 at 9:50am, John Pappas, did drive NSW vehicle registration [set out] in a non-school zone exceeding the speed limit by less than/equal to 15km/h on Pialligo Avenue in the suburb of Majura.

3. The offence provision was identified as Australian Road Rules s 20.

4. A speed camera had detected his vehicle travelling at a speed of 83 km/h. The proceedings before the magistrate were based upon documentary evidence. 10 exhibits were tendered by the prosecution and one by the appellant. Of significance for the present appeal was an evidentiary certificate issued under s 25 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (Safety and Traffic Management Act) with attached photographs. Relevantly, the certificate provided:

5. The series of images provided numbered 1-2 “Attached and marked as Annexure 1” are an accurate copy of the series of images taken of vehicle registration number [set out] NSW by the traffic offence detection device on 1 February 2020 at 9 hours 50 minutes and 11 seconds on Pialligo Avenue, Majura, Australian Capital Territory.

6. One of the images in annexure 1 identified the date and time as “01/02/2020 09:50:11”. It also identified the speed limit as being 70 km/h and the speed measured as being 83 km/h.

7. The submission made to the magistrate was that 9:50am and 9:50:11am were two different times and that the motor vehicle may have accelerated between 9:50am and 9:50:11am, hence there was a reasonable doubt as to whether it was travelling above the speed limit at 9:50am.

8. The reasons of the magistrate were, in full, as follows:

I don’t accept that argument. I could go about this a very long way, but I don’t intend to. I’m satisfied that the question of time as detailed in the charge is a form of particularisation. It is not an element of the offence. I am satisfied that the concept of 9.50 can extend to the full 60 minutes [this should be seconds] of it by the descriptor of 9.50. I am satisfied that 9.50 and 11 seconds falls within the descriptor in the particularisation. I am satisfied the offence is proved.

Grounds of appeal

8. The grounds of appeal as set out in the Notice of Appeal are as follows:

a. The evidence before Her Honour the Learned Magistrate was incapable of establishing, to the relevant standard, the offence alleged in the Initiating Process, namely, that the Appellant was driving his motor vehicle in excess of the legal speed limit on Pialligo Avenue Majura at 9:50 am on 1 February 2020. b. Her Honour the Learned Magistrate misdirected herself as a matter of law and logic in concluding that an offence alleged to have been committed at 9:50am could be established by evidence of offending conducted at any time between 9:50am and 9:51am.

c. Her Honour the Learned Magistrate failed to act upon the Section 25 Certificate under the Road Transport (Safety and Traffic Management) Act 1999 which was admitted as Exhibit 2 before her when she was obliged as a matter of law to do [so].

d. Her Honour the Learned Magistrate failed to apply or properly apply Section 25 of the Road Transport (Safety and Traffic Management) Act 1999.

e. Her Honour the Learned Magistrate failed to give any weight to the evidence placed before her by consent in the form of a business record which became Exhibit 10 in the proceedings.

9. Grounds (a)-(d) can be dealt with together. Ground (e) will be dealt with separately.

Relevant statutory provisions

10. The relevant provision of the Road Rules Regulation is s 20:

20 Obeying speed limit A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving. Maximum penalty: 20 penalty units.

11. The two provisions referred to in submissions were ss 22A and 25 of the Safety and Traffic Management Act. These related to speed cameras and evidentiary certificates. It is only necessary to refer to parts of s 25 which relate to evidentiary certificates used to prove offences against the Act:

25 Evidentiary certificates etc (1) This section applies to a proceeding against a person for an offence against this Act involving a vehicle. (2) A certificate that appears to be signed by a police officer or the road transport authority, and states a matter relevant to any of the following, is evidence of the matter: (a) the use of a traffic offence detection device in relation to the vehicle; (b) anything done or not done in relation to a traffic offence detection device under a regulation made for this part; (c) the recording or verification of an electronic file created by an approved camera detection device or an approved average speed detection system; (d) the vehicle’s average speed between stated detection points. (3) Without limiting subsection (2), a certificate given under that subsection may state any of the following matters: … (d) if the device is an approved camera detection device—that a stated image is an accurate copy of an image taken by the device at a stated date, time and place or is an accurate copy of 1 of a series of images taken by the device at a stated place during a stated period; (Underlining added.) … (4) An image stated by a certificate given under subsection (2) to be an accurate copy of an image taken by an approved camera detection device or an approved average speed detection system is evidence of everything indicated on or shown by the image. Note Information etc that is indicated on an image includes information etc accompanying or reasonably associated with the image (see dict, def indicated on). (5) Without limiting subsection (4), the information indicated on or shown by the image is evidence of the following matters: (a) that the vehicle shown in the image was being driven when and the place where (the relevant time and place) the image was taken by the device; (b) if the information indicates a speed limit—that the speed limit applied to the driver of the vehicle for the length of road where the driver was driving at the relevant time and place; (c) if the information indicates the speed of the vehicle—that the driver was driving the vehicle at that speed at the relevant time and place; … (e) if the information indicates the lane and the general direction in which the vehicle was travelling—that the vehicle was travelling in that lane in the general direction indicated; … (7) Evidence may be given by a police officer or authorised person about any matter mentioned in subsections (2) and (3). (8) Without limiting subsection (7), evidence by a police officer or authorised person of the speed a vehicle was moving as measured by a traffic offence detection device is evidence that the vehicle was being driven at that speed when and where the measurement was taken. (9) Evidence of the condition of a traffic offence detection device is necessary only if evidence is given that the device was not accurate or operating properly. (10) This section does not limit evidence that can be presented apart from this section. (Underlining added.)

12. Counsel for the appellant placed particular reliance upon the reference to “a stated date, time and place” in s 25(3)(d). Counsel for the respondent placed particular reliance upon the terms of s 25(10).

Grounds (a)-(d)

13. Relying upon the decision of Crennan J in WGC v The Queen [2007] HCA 58; 233 CLR 66 at [155]-[157] and the summary of the authorities in R v Masina (No 3) [2020] ACTSC 154 (Masina) at [258]-[261], the appellant submitted that for the purposes of the speeding offence, the prosecution was required to prove beyond reasonable doubt that the offence occurred at the exact time as charged in the information. That meant that the prosecution was required to prove that the speeding occurred at precisely 9:50am and that it was insufficient to prove it occurred at 9:50:11am, as had been stated in the evidentiary certificate.

14. As will be apparent from the terms of s 20 of the Road Rules Regulation, the time at which the offence occurred is not an element of the offence. It is a matter of particularisation. The requirement to particularise a charge is a matter of procedural fairness. That is, the particularisation was accurate but not as precise as the evidence relied upon, which specified the time down to the second. As a matter of substance, there was no unfairness to the appellant. No doubt as a result of the disclosure of the evidentiary material, he knew precisely the allegation that he was to meet. Had a particularisation to the second been sought, there is no doubt that the prosecution would have particularised in accordance with the photograph annexed to the s 25 certificate. No request for greater particularisation was made, because the appellant must have been in no doubt as to what conduct was alleged to contravene the law. There was no procedural unfairness in proceeding on the basis of particularisation to the minute rather than the second.

15. The circumstances of this case are readily distinguishable from those in Masina where an alibi notice had been served and the trial conducted on the basis that the incident was alleged to have occurred “on or about” a particular day.

16. The submissions of the appellant were founded on two different false premises.

17. First, the submissions on behalf of the appellant proceeded on the assumption that the charge was particularised as 9:50:00am whereas in fact it was simply 9:50am. The appellant sought to run the case as if the allegation was that the offending took place at 9:50:00am, thereby creating the opportunity to establish that the speeding occurred at a time not covered by the charge. As a matter of ordinary language, the reference to 9:50am is sufficient to encompass the whole of that minute in the same way as a reference to 1 February 2020 is sufficient to encompass the whole of that day. It would be a triumph of form over substance to interpret the reference to 9:50am as if it was 9:50:00am in those circumstances.

18. Second, the appellant submitted that the terms of the Safety and Traffic Management Act relating to traffic offence detection devices meant that the date, time and place of the offence became an element of the offence or was required to be stated, to the second, in the charge. The submission was that the terms of s25(3)(d) and its reference to “a stated date, time and place” along with other references elsewhere in that section to date and time, had the effect that the precise time shown by a camera detection device or an s 25 certificate meant that the time, to the second, was required to be stated in the information. That submission is without substance. The offence provision is s 20 of the Road Rules Regulation which is set out above. The provisions relating to camera detection devices and evidentiary certificates are simply evidentiary provisions facilitating the proof of contraventions of, inter alia, s 20 of that regulation. Section 25(10) of the Safety and Traffic Management Act makes it clear that the evidentiary certificate provision does not prevent proof by any other means and hence undermines the submission that the provisions relating to proof somehow alter the required content of a charge. Nothing about those provisions requires specification of the time of the offence in the charge to the second in the information, requires the specification of the time of the offence in the charge to be to the same level of precision as set out in the certificate, or requires that the reference to 9:50am be interpreted as if it was 9:50:00am.

19. These grounds of appeal are not made out.

Ground (e)

20. This ground related to some information from the owner’s manual of the appellant’s vehicle, which demonstrated that it could accelerate from nought to 100 km/h in 4.7 seconds. This was relied upon in order to demonstrate the possibility that the vehicle may not have been travelling above 70 km/h at 9:50:00am even if it was travelling at 83 km/h 11 seconds later.

21. This ground would have been of significance if the prosecution was required to establish that the offence occurred at 9:50:00am as opposed to 9:50:11am. It would have led to a reasonable doubt as to whether the vehicle was speeding at the earlier time just because it was shown to have been speeding at the later time. However, given that the prosecution was not required to prove that the vehicle was speeding at 9:50:00am, the ground does not demonstrate any error on the part of the magistrate.

Order

22. The order of the Court is:

23. The appeal is dismissed.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 16 March 2022