Plaintiff v First Defendant Second Defendant

2 Mr Agar was recorded as driving a vehicle at 67kmh on the Nepean Highway at Edithvale on 18 June 2010. His speed was recorded by a Gatsometer Radar 24 - GSII road safety camera. This was less than 10kmh over the applicable speed limit of 60kmh. Mr Agar was charged with exceeding a prescribed speed limit contrary to r 20 of the Road Safety Rules 2009 ('Road Safety Rules'). Mr Agar contested the charge.

3 Mr Agar was initially convicted and fined $146 by the Magistrates' Court sitting at Moorabbin on 3 February 2012. He then appealed. The appeal was heard and determined by the County Court on 24 June 2013. Whilst the proceedings were transcribed, at some stage subsequent to June 2013 the transcript was 'wiped'. Consequently, when Mr Agar's application pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2005 ('Rules') was heard by me, there was no transcript of the proceedings before Judge Gucciardo. However, the Judge Gucciardo's notes were tendered as evidence. In addition, counsel who was briefed by the first defendant, Mr Pickering, filed two affidavits. Mr Agar also filed two affidavits.

4 The Road Safety Act 1986 ('the Act') contains a number of provisions that govern the use of evidence obtained by prescribed road safety cameras:

(a) Section 3 of the Act defines prescribed road safety camera to mean a type or class of road safety camera that is prescribed by regulations for the purpose of this Act.

(b) Regulation 29(1)(a) of the Road Safety (General) Regulations 2009 ('Regulations') provides that all offences in the Act for breaches of the Road Safety Rules which involve a driver exceeding the applicable speed limit are prescribed offences which may be detected by a prescribed road safety camera.

(c) Regulation 30(o) of the Regulations confirms that the camera system known as the Gatsometer Radar24-GS11 is a prescribed road safety camera.

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.

(e) In relation to 'testing', reg 38 of the Regulations provides:

For the purposes of sections 81 and 84(7) of the Act, a mobile digital RSC is tested in the prescribed manner if the testing officer who tests the system -

(a) is satisfied that the system is in a satisfactory electrical condition and, in particular, that any maintenance carried out on the system has been carried out in a satisfactory manner; and

(b) is satisfied that the speed calculation unit is properly calibrated so that the frequencies or speeds at which calibration is effected indicate speed readings within a limit of error not greater than or less than 3 kilometres per hour or 3 per cent (whichever is greater) of the true speeds determinable from those frequencies or speeds.

(f) In relation to 'sealing', reg 39 of the Regulations provides:

A mobile digital RSC is sealed in the prescribed manner for the purposes of sections 81 and 84(7) of the Act if the speed calculation unit is sealed -

(a) by the testing officer who carried out the test under regulation 38; and

(b) with a seal that effectively prevents interference with the time measuring or speed computing components of the speed calculation unit without breaking the seal.

(g) In relation to 'use', reg 40 of the Regulations provides:

For the purposes of sections 80, 80A, 81, 83A(1), 84(7) and 84H(2)(a) of the Act, a mobile digital RSC is used in the prescribed manner if -

(a) the speed calculation unit is used in accordance with operating instructions approved by a testing officer; and

(b) the speed calculation unit has been tested in accordance with regulation 38 within 12 months before the occasion of its use; and

(c) the speed calculation unit has been sealed in accordance with regulation 39 at the time that it was last tested.

(1) If in proceedings for an offence to which section 66 applies 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) a prescribed road safety camera when tested, sealed and used in the prescribed manner; or

(b) an image or message produced by a prescribed road safety camera when tested, sealed and used in the prescribed manner; or

(c) an image or message produced by a prescribed process when 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.

A certificate in the prescribed form to the effect that any prescribed speed detector or device referred to in section 79 or 82 has been tested or sealed in the prescribed manner, signed or purporting to be signed by a person authorised to do so by the regulations is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof that the prescribed speed detector or device has been so tested or sealed.

(1) A certificate containing the prescribed information purporting to be issued by an authorised person certifying -

(a) that a prescribed road safety camera was tested, sealed or used in the prescribed manner; or

(b) that an image or message described in the certificate was produced by a prescribed road safety camera or by a prescribed process; or

(c) as to any other matter that appears in, or that can be determined from, the records kept in relation to the prescribed road safety camera or the prescribed process by Victoria Police -

is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate.

(2) In this section authorised person means a person authorised for the purposes of this section by the Chief Commissioner of Police.

5 In the County Court proceedings, the prosecution tendered a s 83 certificate[1] and a s 83A certificate.[2] The prosecution also tendered a speed camera photograph[3] and a certificate under s 84 of the Act.[4] The prosecution also called Predrag Blazevski, the speed camera operator, and he gave evidence and tendered the documents referred to above.[5]

6 Mr Agar gave evidence. He relied upon an affidavit that he had sworn on 28 September 2010 in which he deposed as follows:

On the evening of 18 June 2010 I was driving home south along Nepean Highway, a road I have commuted on most weekdays from my home to work in Melbourne, since 2002. On the occasion I observed a small SUV speed camera vehicle parked on the left-hand side of the Nepean Highway facing south.

My car was set on cruise control at 60kmh, and I checked my speedo to ensure that this [sic] I was travelling at or below the speed limit.

I know my car speedo to be accurate and to read very slightly fast. Therefore I am confident that I was not travelling at the speed alleged.

I was travelling on the centre lane. There was an older model Falcon sedan on the inside lane, between myself and the speed camera SUV.

As we passed the SUV I observed the front of my car to be level with the rear of the Falcon sedan.

Shortly thereafter there was a flash from the speed camera and at the time I observed that Falcon sedan was no longer level with the front of my vehicle, but further in front.

I have check [sic] the photo of this offence.

The allegation that my vehicle was speeding is not valid as there were two vehicles in the speed camera radar beam.

I refer you to page 13 of the MRC Training manual that explains that the camera is triggered when there is 20ms gap in the signal, indicating that there is no longer a vehicle in the radar beam.

I have on audio record the testimony under oath of the testing officer that when there are multiple vehicles in the radar beam, the camera takes a photo when the last vehicle leaves the beam, on the assumption that all vehicles were travelling at the same speed.

I refer to the attached diagram, marked CPA1 which depicts the situation.

7 Mr Agar sought to challenge the validity of the s 83 certificate. To this end he sought to lead evidence from Dr Richard Brittain, an employee of the National Measurement Institute. Prior to the hearing on 24 June 2013, Dr Brittain had prepared a written report. Judge Gucciardo refused to admit Dr Brittain's report into evidence. The affidavit of Mr Pickering[6] includes the following:

I recall that his Honour said that, having read the decision of Agar v Dolheguy and a statement of Dr Brittain, the evidence of Dr Brittain was properly objected to as:

(a) proposed evidence concerned compliance with the National Measurements Act; and

(b) in the decision of Agar v Dolheguy his Honour Justice Macaulay found that compliance with the National Measurements Act was not required under the Victorian legislation; and

(c) Dr Brittain had not tested the actual machine involved in the charge.

8 Mr Agar also called Mr Chris Burden, the technical officer who signed the s 83 certificate in respect of the road safety camera which recorded Mr Agar speeding. Mr Burden gave evidence that it was part of his duty to calibrate the device and was satisfied that it was operating correctly and properly sealed. He gave evidence that if there were two vehicles in the beam, and they were close together, the camera takes a photo when the last car leaves the beam and the speed of the last car to leave the beam is calculated.[7]

9 At the conclusion of the evidence both Mr Agar and Mr Pickering made submissions. In an affidavit sworn 23 April 2015 Mr Pickering deposed that:

In summary, I submitted that there was no 'evidence to the contrary', and that his Honour should find the charge proven on the basis of the certificates tendered by the prosecution.

Mr Pickering also deposes that Judge Gucciardo then ruled that, as there was no 'evidence to the contrary' in accordance with the legislation, he found the charge proved.[8]

10 The application for judicial review of the orders of the County Court was listed for hearing before me on 26 February 2015. Following this hearing, I requested that the parties file further evidence as to the oral reasons for judgment which had been given by Judge Gucciardo on 24 June 2013. An affidavit was filed on behalf of the first defendant and deposed to the oral reasons given by Judge Gucciardo in the terms set out above. The matter was relisted for further hearing on 29 April 2015. Mr Agar sought - and was granted - leave to amend the grounds in support of the relief claimed in his originating motion by contending error of law on the face of the record by reason of a failure by Judge Gucciardo to provide adequate reasons for the finding that the charge had been proved. The amended originating motion was served upon the County Court of Victoria. The hearing concluded on 13 May 2015.

11 Ms Dalziel of counsel who appeared for the first defendant submitted that whilst the reasons given by Judge Gucciardo were concise, they were adequate. Ms Dalziel submitted that the resolution of the proceedings before Judge Gucciardo involved a single issue: whether there was evidence to the contrary, being evidence of some weight which displaced the prima facie proof of the speeding charge arising from the certificates under ss 83 and 83A of the Act. Ms Dalziel submitted that Judge Gucciardo's reference to 'in the absence of evidence to the contrary' necessarily entailed a rejection of Mr Agar's evidence. Having done so, the charge was proved by the ss 83 and 83A certificates.

12 Ms Dalziel placed reliance upon the judgment of the Full Court of the Victorian Supreme Court in Brittingham v Williams.[9] In this case, Brittingham brought an action in the County Court of Victoria against Williams for recovery of money lent. The only defence raised on the hearing was the statute of limitations, in reply to which Brittingham relied upon an alleged agreement for part-payment within six years. The County Court judge found in favour of the defendant but gave no reasons for his decision and refused to comply with a request to do so. The Full Court dismissed an appeal from his judgment:

After an examination of the evidence set out in the Appeal Book it ultimately became obvious that unless the plaintiff's account as to the alleged agreement was accepted and the learned judge had held that it amounted to an agreement as alleged (as to part-payment), his claim was barred by the statute of limitations... a case may turn entirely upon a finding in relation to a single and simple question of fact, or be so conducted that the reason or reasons for the decision is or are obvious to any intelligent person...[10]

13 Brittingham has been cited with approval in subsequent judgments. In Ta v Thompson and anor,[11] Osborn JA (Beach JA agreeing) cited with approval the following passage from the judgment of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd[12] where his Honour, referring to Brittingham, said:

In that case the trial judge had given no reasons. However, the Full Court held that 'having regard to the only defence raised' the proper conclusion to be drawn from a judgment for the defendant was that the judge had not accepted the plaintiff's evidence. Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary 'for him to go further and say, for example, that the reason was based on demeanour': Connell v Auckland City Council [1977] 1 NZLR 630. The position will usually be different if other evidence and probabilities are involved. A superior court, considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding.[13]

14 In Opeka Pty Ltd v Mackie Group Pty Ltd[14] Nettle J (as his Honour then was) stated:

I turn to the first question for determination on the hearing of this appeal. Did the magistrate err in law by failing to express his reasons for decision adequately? In my opinion he did not. It is not in issue that as a general rule a judge or a magistrate should state his or her reasons. Nor is it in issue that the failure of a judge or magistrate to state his or her reasons may constitute an error of law. But that is not always the case. Sometimes the simplicity or the context of a case or the state of the evidence may be such that a mere statement of a judge's conclusion will be sufficient to indicate the basis of decision. Some examples were given by Cussen ACJ in Brittingham v Williams. Other times it may be that only a brief statement of reasons is required. The test to be applied in determining whether a judge or magistrate has erred in law by failing to state his or her reasons or by failing to state them adequately was thus recently restated by the Court of Appeal in Agresta v Agresta in these terms:

Want of reasons may amount to an error of law where the absence of reasons would frustrate a right of appeal. That would occur if the appellate court is unable to ascertain the reasoning upon which the decision is based. Whether the reasons are inadequate in this sense will depend upon the nature of the decision and the circumstances of the case.[15]

15 Error of law on the face of the record constitutes a distinct basis for relief by way of judicial review in the nature of certiorari.[16] The County Court was deciding by way of a hearing de novo a summary prosecution. The Court's determination of whether the charge was proved was a final decision of the type which attracted an obligation to state reasons.[17] The statement of reasons 'facilitates effective judicial review and protection of a party's rights to see whether a decision was made in accordance with the law'.[18]

16 In Thompson, the Court of Appeal held that, where the County Court was deciding by way of hearing de novo a summary prosecution, the obligation to provide adequate reasons 'extended to identifying the grounds or basis of [the] decision in the same way as such an obligation is regarded as a necessary corollary to a right of appeal on questions of law'.[19] The reasons 'needed to explain the process of reasoning of the County Court judge and to state the grounds of the decision sufficiently to enable the court to see whether the judge's decision did or did not involve an error of law.'[20]

17 Applying the reasoning of Nettle J (as his Honour then was) in Opeka, the question for determination is as follows: was the simplicity or the context of the proceedings or the state of the evidence in the County Court proceedings such that a statement by Judge Gucciardo that, in the absence of evidence to the contrary and in accordance with the legislation, he found the charge proved, sufficient to indicate the basis of his decision? Ms Dalziel urged that this question should be answered in the affirmative. I do not agree.

18 In Agar v McCabe,[21] T Forrest J observed, in respect of the phrase 'evidence to the contrary' in s 83A:

Evidence to the contrary will be 'evidence to the opposite effect' and 'must at least be accepted by the tribunal of fact as having some weight.'[22]

19 In effect, Ms Dalziel submitted that the reference by Gucciardo J to the absence of evidence to the contrary constituted a finding by his Honour that he rejected the evidence of Mr Agar as being of no weight.

20 I have set out earlier in this judgment ss 81 and 83A(1)(b). The s 83A certificate tendered in the proceedings before Gucciardo J contained an image of Mr Agar's vehicle together with the message: 'Nepean Highway, Edithvale between Bank Road and Foy Avenue. Vehicle detected travelling away from the Road Safety camera. 60kmh speed limit on 18 June 2010 at 7:21:17 pm. Vehicle speed 67kmh at that time and place. Operator ID 231715. Camera Number DRG153.' The combined effect of ss 81 and 83A(1)(b) is that, absent evidence to the contrary, the s 83A certificate was poof of the speeding charge.

21 Putting to one side the question of weight, there is no doubt that there was evidence before Judge Gucciardo which was to the opposite effect of the matters set out in the s 83A certificate. Mr Agar gave direct evidence that contrary to what was recorded in the certificate, his speed was 60kmh at the time he was recorded as driving at 67kmh.

22 In the ordinary course, where a judge rejects the evidence of a witness as being of no weight, the basis for such a finding will be set out. It was an agreed matter before me that there was no challenge to Mr Agar's credit in the proceedings in the County Court. In particular, counsel for the first defendant did not put to Mr Agar that his evidence was fabricated or based on a mistaken belief. The failure to do so is surprising given that Judge Gucciardo was invited by counsel for the first defendant to make a finding that there was 'no evidence to the contrary' for the purposes of s 83A of the Act. Effectively, Judge Gucciardo was invited to make a finding that the evidence of Mr Agar could not be given any weight. The notes of the cross-examination of Mr Agar[23] indicate that it was put to Mr Agar that he was associated with a website 'Fight Fines', that he provided advice to others as to how to challenge speeding fines, that he regarded speeding fines as unfair and that he challenged all fines that he received. Mr Agar disputed some of these matters.

23 It was not put directly to Mr Agar that his recollection of his speed at the time he was recorded as exceeding the speed limit was flawed, that his speedometer or cruise control was or may have been faulty, or that he was being deliberately dishonest. In circumstances where Judge Gucciardo has given no reasons for rejecting the evidence of Mr Agar, it is difficult to understand the basis upon which his Honour may have concluded that the evidence was of no weight.

24 I do not consider that the line of questioning directed at establishing that Mr Agar challenged other speeding fines he received provides the basis for a conclusion that Mr Agar's evidence was of no weight. In contradistinction to the circumstances in Brittingham, and the example provided by McHugh JA in Soulemezis, where the resolution of a case depends entirely on credibility, Mr Agar's evidence was not subject to any challenge based on credit. For this reason alone I am satisfied that the proceedings before Judge Gucciardo do not fall into the class of proceedings identified by Nettle J as being such that a mere statement of the judge's conclusion will be sufficient to indicate the basis of a decision. In circumstances where there was no challenge to Mr Agar's credit, it was incumbent upon Judge Gucciardo to articulate the basis for any conclusion which he had reached that Mr Agar's evidence was to be given no weight.

25 In addition to the matters set out above, there are other matters which take the proceedings out of the class of cases in which a mere statement of the judge's conclusion will be sufficient to indicate the basis of the decision. Effectively, Mr Agar's defence to the speeding charge turns on the proposition that his vehicle was travelling at 60kmh but a vehicle to his left was travelling at a faster speed, and it was this vehicle which activated the speed camera. In support of this proposition he cross-examined Mr Burden, the testing officer. Before me, Mr Agar submitted that Mr Burden's evidence in cross-examination corroborated that where two cars are in a speed camera's radar beam, the camera will take a photo of the last car to leave the beam. The notes of Judge Gucciardo are somewhat equivocal:

Two in the photo not two in the beam.

Photo taken when the last car leaves the beam.

Its speed is calculated.

26 The first line of the notes suggest that Mr Burden's evidence was to the effect that it does not follow from there being two cars in a photo that both cars are in the speed camera's radar beam. However, the second and third lines suggest that Mr Burden gave evidence that there can be two cars in the speed camera's radar beam. The s 83A certificate contains a photo of Mr Agar's vehicle and another vehicle on the inside lane in front of his vehicle. The photo is consistent with Mr Agar's account of the circumstances at the time his vehicle was recorded as travelling at 67kmh. If Mr Burden did give evidence that the photo was taken when Mr Agar's car left the beam such evidence raises a substantive question of whether the first car to leave the beam (which presumably was travelling at a faster speed than Mr Agar's car) has triggered the speed camera.

27 The absence of transcript of proceedings - and in particular, Mr Burden's evidence - makes it difficult to resolve the question of whether his evidence did or did not support Mr Agar's contention. The matter cannot be resolved by reference to the trial judge's notes.

28 Plainly, the evidence given by Mr Burden relating to the radar beam of a speed camera was of a highly technical nature. The absence of any reasons of Judge Gucciardo concerning this evidence does not allow for any meaningful assessment to be undertaken as to whether his decision did or did not involve an error of law.

29 The order of Judge Gucciardo of 24 June 2013 convicting the plaintiff and imposing a fine of $200 will be quashed. The hearing of the charge that Mr Agar exceeded the speed limit will be remitted to the County Court to be heard by another judge. On the remittal it will be entirely a matter for the judge to whom the case is allocated to determine the conduct of the proceedings. Nevertheless, I make the following observations.

30 A considerable amount of time was expended in the proceedings before Judge Gucciardo by Mr Agar's challenge to the validity of the s 83 certificate. In Agar v McCabe,[24] T Forrest J observed, in respect of a s 83A certificate which recorded the detected speed of a motor vehicle alleged to be exceeding the speed limit and which included an imagine of the vehicle and a statement as to its speed:

The plaintiff was served with certificates under both ss 83 and 83A. Because a certificate that complies with s 83A is proof of the matters stated in the certificate and because one of those matters, in addition to certification that the device was tested, sealed and used in the prescribed manner, was in this case an image and message indicating the detected speed, the certificate under s 83A appears to have made a s 83 certificate unnecessary.[25]

31 I agree with the observations of T Forrest J set out above. The fact that the s 83A certificate included an image of Mr Agar's vehicle and a statement that the vehicle was travelling at 67kmh, rendered the s 83 certificate of no legal consequence. In the absence of 'evidence to the contrary', the s 83A certificate stands as proof that Mr Agar was travelling at 67kmh in a 60kmh speed zone.

32 The s 83A certificate constitutes prima facie proof that Mr Agar was travelling at 67kmh. Together with s 81 - and in the absence of evidence to the contrary - it is proof that Mr Agar's vehicle was travelling in excess of the prescribed speed limit. Upon remittal, if Mr Agar gives evidence to the same or similar effect to that which he gave before Gucciardo J, the trial judge will have to determine whether that evidence is 'evidence to the contrary' for the purposes of ss 81 and 83A of the Act.

33 If the judge concludes that the evidence of Mr Agar is of no weight then it will not be 'evidence to the contrary'. In the absence of other evidence the charge will be proved on the basis of the s 83A certificate. If the judge is satisfied that the evidence is of some weight, it does not follow that the court cannot find the charge proved beyond reasonable doubt on the basis of the s 83A certificate. Rather, the court will have to weigh any evidence advanced by Mr Agar against the evidentiary weight to be attached to the s 83A certificate.

34 Once the s 83A certificate is admitted into evidence, it is evidence of the matters contained therein. Evidence which is to the 'opposite effect' of the matters contained in the certificate, does not preclude a court from convicting on the basis of the s 83A certificate. Whether or not a court does so depends upon the judge's assessment of the quality of the evidence which is put forward as being contrary to the evidence constituted by the s 83A certificate. For example, if a person charged with a speeding offence gives evidence that s/he looked at their speedometer which displayed a speed at or below the speed limit, such evidence invites close scrutiny. First, it is unlikely that a driver will have been looking at the speedometer at precisely the same moment the speed camera has been activated. Second, unless the driver can lead evidence that the speedometer has been checked for accuracy shortly prior to the vehicle having been recorded as speeding, there will be an issue as to the weight to be accorded to the driver's evidence.

35 I have concluded that there will be no order as to costs. Mr Agar represented himself in the proceedings before me. As such, no question arises of him having incurred any costs by way of legal representation. Even if he had been represented by solicitors and counsel I would have made no order of costs in his favour. Prior to amending his originating motion to contend that the reasons of Judge Gucciardo were inadequate, none of the grounds in Mr Agar's originating motion provided any basis for the relief which he sought. The grounds in the originating motion were misconceived. They failed to have any regard to the fact that proceedings under O 56 of the Rules are by way of judicial review. None of these grounds provided any basis for a finding that there was jurisdictional error or error on the face of the record.

[1] Exhibit D1: Exhibit DZ4 of the Affidavit of Danya Ziukelis.

[2] Exhibit D1: Exhibit DZ3 of the Affidavit of Danya Ziukelis.

[3] Exhibit D1: Exhibit DZ5 of the Affidavit of Danya Ziukelis.

[4] Exhibit D1: Exhibit DZ6 of the Affidavit of Danya Ziukelis.

[5] Exhibit D2: Exhibit PP1 of the Affidavit of Peter Pickering sworn 27 October 2014. The notes of Predrag Blazevski's evidence are recorded at pp 147-8 of the notes of Judge Gucciardo.

[7] Exhibit D2: Exhibit PP1 of the Affidavit of Peter Pickering sworn 27 October 2014. See pp 150-1 of the notes provided by Judge Gucciardo.

[9] [1932] VicLawRp 35; [1932] VLR 237 ('Brittingham').

[11] [2013] VSCA 344.

[12] (1987) 10 SWLR 247 ('Soulemezis').

[13] Soulemezis, 280 (emphasis in original).

[14] [2003] VSC 183 ('Opeka').

[16] See Ta v Thompson [2013] VSCA 344 [21] ('Thompson').

[21] [2014] VSC 309.

[22] Ibid [18]; See also Agar v Dolheguy [2010] VSC 506 [35]; DPP v Cummings [2006] VSC 327 [35].

[23] Exhibit D2: Exhibit PP1 of the Affidavit of Peter Pickering sworn 27 October 2014. See pp 149-50 of the notes provided by Judge Gucciardo.

[24] [2014] VSC 309.