Plaintiff v First Defendant Second Defendant Third Defendant

1 Mr Jack Cai was convicted in the Magistrates' Court at Moorabbin in December 2013 of a traffic offence of entering an intersection against a red traffic arrow. He was fined $352.00 with $73.20 statutory costs. The offence was that:

At Clayton South on 12/03/2013, being a driver of a vehicle on a road named Springvale Road and, at traffic lights showing a red arrow at the intersection with Wellington Road and, turning in the direction indicated by the traffic arrow, did enter the intersection against the red traffic arrow.

2 The offence was brought under r 60 of the Road Safety Road Rules 2009 (Vic) ('the Road Rules'), which was made under the Road Safety Act 1986 (Vic), and provides:

60 Proceeding through a red traffic arrow

If traffic arrows at an intersection are showing a red traffic arrow, and a driver is turning in the direction indicated by the arrow, the driver must not enter the intersection or marked foot crossing.

Penalty: In the case of a natural person, 10 penalty units;

In the case of a body corporate, 120 penalty units.

3 The term 'enter' is defined by the Dictionary to the Road Rules as follows:

enter an intersection or crossing, for the driver of a vehicle or a train, means enter the intersection or crossing with any part of the vehicle or train.

intersection means the area where 2 or more roads (except any road related area) meet, and includes -

(a) any area of the roads where vehicles travelling on different roads might collide; and

(b) the place where any slip lane between the roads meets the road into which traffic on the slip lane may turn -

but does not include any road related area.

5 Other Road Rules relevant to a driver's obligations at an intersection include: r 56, stopping for a red traffic light or arrow, r 57, stopping for a yellow traffic light or arrow, r 59, proceeding through a red traffic light and r 61, proceeding when traffic lights or arrows at an intersection change to yellow or red.

6 Mr Cai's occupations include that of driving instructor. His case is that he still saw a right direction yellow arrow when his car passed the stop line and that his car entered the intersection before the red arrow came on. He says that he gave evidence to that effect in the Magistrates' Court.

7 He appealed the conviction to the County Court. The appeal apparently is now listed for July 2015. Prior to the first listing of the appeal, Mr Cai issued three subpoenas seeking the production of documents.

8 Those subpoenas were returnable before a judge of the County Court of Victoria on 24 June 2014. After hearing argument the judge ordered:

...that access to the documents subpoenaed be refused. Direct that the Appellant's subpoenas be set aside.

9 Liberty to the third defendant to apply for costs at a later date was reserved.

As I understand Mr Cai's submission, it is that he needs the manual to demonstrate that the sensor on the road is wrong, the system is designed in a wrong way and he can use the manual to demonstrate that. He says when he obtains the manual he can consult a solicitor who could find an expert but maintains he does not need an expert because the solid evidence supports what he says. He said it will prove the conviction wrong. He explained to me how the sensor on the ground could not trigger the body of the vehicle, therefore the certificate that will be tendered in the hearing by the prosecution is wrong, that is, that shows the position of his vehicle in the intersection 2.2 seconds after it has passed the sensor.

It is my view that Mr Cai gets nowhere near establishing that it is a reasonable possibility that this material would materially assist his defence. On the explanations that he has offered to me, he is expressing hopes and wishes based on knowledge that he believes he has but is not an expert in the field. He handed to me a decision of Nathan J back in 2001 that concerned a speed camera space attached Supreme Court 23 March 2001 - I do not have any details of that apart from an order. In my view, that is not a binding authority on the hearing in this case because it relates to a speed camera and I do not know what the facts were in that case. This is a different case of different provisions in the Road Traffic Act. So my view is that Mr Cai has not demonstrated a legitimate forensic purpose so I refuse access to the documents and set aside the subpoenas.

11 Mr Cai seeks judicial review under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 of the judge's order to set aside the subpoenas. He must establish that either the judge made a jurisdictional error or his decision involved an error of law on the face of the record. It is insufficient to assert, as many of Mr Cai's grounds do, that the judge erred.

12 The grounds of the originating motion surviving after a number were struck out by an Associate Justice, were as follows:

(a) That the first named Defendant, His Honour Judge Montgomery erred in law in finding that the subpoenas for production of documents are 'fishing expedition' in criminal proceedings and quashing the subpoenas.

(b) That the first named Defendant, His Honour Judge Montgomery erred in not finding the Plaintiff's specific and compelling reasons for need of specific documents as material evidence to be used at next hearing at County Court.

(c) That the first named Defendant, His Honour Judge Montgomery erred in not providing a fair trial or hearing in the court in terms of Federal Government and Human Right Law by quashing the subpoenas and ban the Plaintiff to use technical manual and test report as material evidence in court.

13 Mr Cai was given leave by the Associate Justice to file an amended originating motion and a replacement affidavit. The amended originating motion contained 15 grounds. A number of those grounds were in substantially the same form as those that had been struck out by the Associate Justice. The case came before the Associate Justice again and she stated that she had no confidence that Mr Cai would prepare a complying affidavit, but considered that it was best to allow his case to proceed to a hearing so that his grievance could be determined.

14 I will not set out the grounds contained in the amended originating motion, save to say that they included assertions that his Honour had erred in applying the forensic purpose test. The grounds that alleged that error, in one form or another, were grounds (a), (c), (d), (e), (h) and (i).

15 Other grounds raised issues concerning the manner in which the County Court hearing had been conducted. These were contentions that the judge had been wrongly influenced by the s 83A certificate (ground (b)), that the judge had failed to consider a court order made by Nathan J in proceedings in 2001 in which Mr Cai was the plaintiff (grounds (f), (g) and (m)), that Mr Cai's submissions to the Court had been wrongly limited (ground (j)), that the judge had been misled about statements made by the Court in an earlier hearing (ground(l)) and that Mr Cai had received an unfair hearing (grounds (n) and (o)).

16 None of the allegations referred to in the previous paragraph established any error of law or jurisdictional error by the judge. The 2001 order was made in proceedings brought by Mr Cai also challenging a decision of a County Court judge to quash subpoenas. The order of Nathan J was that Mr Cai's proceeding be dismissed, but the Court received the following undertaking which was noted in the order:

Upon receiving the undertaking of Counsel for the Defendant that the Plaintiff will be granted access to "Gastrameter MRC System Speed Camera Operators Training Manual No.63", in order for the Plaintiff to obtain a copy thereof, and that the Defendant will cause to be delivered to the Plaintiff the results of any test relating to the Speed Camera No. RG-051 on or before 20 April 2001.

17 That undertaking did not require that the County Court judge determine the outcome of this case in favour of Mr Cai as this case turns on its own facts and issues, not least whether Mr Cai had established a legitimate forensic purpose for obtaining the documents.

18 The principles governing the validity of a subpoena were stated by Redlich and Mandie JJA in Shaw v Yarranova Pty Ltd[1] as follows:

[t]he applicant must identify a legitimate forensic purpose for which access is sought, and establish that it is 'on the cards' that the documents will materially assist his case. There will be no legitimate purpose if 'all the party is doing is trying to get hold of the documents to see whether they may assist him in his case'.

19 Beach J in Glare v Bolster[2] and Kyrou J in State of Victoria v Lane[3] applied similar principles in respect of subpoenas seeking documents relating to the operation of road safety cameras.

20 The informant, the third defendant, relied on a certificate of an authorised person under s 83A of the Road Safety Act 1986 (Vic), which states:

83A Evidence relating to prescribed road safety cameras

(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.

Road Safety Act 1986

Road Safety (General) Regulations 2009

Certificate of an Authorized Person under Section 83A Road Safety Act 1986

(a) On 12/03/2013 the REDFLEX red-speed HDX system was a prescribed road safety camera as defined in the Road Safety Act 1986 and was tested, sealed and used in the prescribed manner and produced the images produced in printed form in paragraph (c)

(b) The printed images and messages, set out in paragraph (c) were produced by a process prescribed for the purposes of section 80 of the Road Safety Act 1986

(c) Printed Images and Messages:

23 It then contained two photographs of Mr Cai's vehicle, with part of it apparently in the intersection of Springvale Road and Wellington Road, Mulgrave, with the traffic signal and the right-hand arrow both showing red.

At the intersection of Springvale Road and Wellington Road, Mulgrave in lane 4 turning left from the vehicle direction of travel on 12/03/2013 at 11.07pm. When vehicle entered in the intersection 2.2 seconds had elapsed since the lights turned red.

25 Underneath the photographs, the following text appeared:

I Kevin Lai, am the person who caused the printed images and messages produced in paragraph (c) to be printed and I certify that, to the best of my knowledge and belief the matters set out in this Certificate are true and correct and I am a person authorised by the Chief Commissioner of Police for the purposes of section 83 of the Road Safety Act 1986 to issue this Certificate under section 83A(1) of the Road Safety Act 1986.

26 Mr Lai's signature and name were followed by the words:

Serco Traffic Camera Services

Level 19, 535 Bourke Street

Melbourne 3000

Vic

27 Mr Cai issued three subpoenas. Two were in similar terms: one to the 'Traffic Camera Office (Kevin Lai)' and another to 'SGS Australia Pty Ltd, Yiling Ling'. I will refer to them as the 'records subpoenas'. They sought production of:

A copy of original test record and service record of camera No. SDC 4148 dated from 4/8/2012 to another date after 12/3/2013. It must include:

(1) Two test reports (1) dated before or on 4/9/2012

(2) dated after 12/3/2013.

(2) Record must show (1) date (time of test)

(2) where (location of camera)

(3) error on first check

(4) fix after error, pass test

(5) name of tester, signature onside of camera location.

28 Mr Cai issued a third subpoena to 'Traffic Camera Office (Michelle Corbett)'. I will refer to it as the 'manual subpoena'. It sought production of:

Red light camera operation, test, and training manual, regarding[s] to Red Hex HDX system.

Include: (1) set up outline of sensors, specification of gap between

sensors.

(2) specification of signal, trigger, e-file format.

(3) onside, test, service procedure, record format, etc.

(4) specification of camera output as evidence.

29 I will consider the issues that relate to the records subpoenas and the manual subpoena separately.

30 The documents sought in the records subpoenas are the test reports and service records for the camera that took the photographs. Mr Cai referred to an earlier hearing in 2006 where he made a similar objection to a red arrow camera fine and the infringement notice was withdrawn. He considers that the same system that took the photograph relied on in connection with the 2006 charge had been applied in this case. In his view, the system remained faulty.

31 In State of Victoria v Lane,[4] Kyrou J dismissed an application for judicial review of a Magistrate's order refusing to dismiss a summons seeking production of documents relating to the service and calibration details of three speed cameras which had produced photographs relied on in the prosecution of the plaintiff for five speeding offences. Kyrou J found that there was material before the Magistrate entitling her to conclude that the plaintiff had a legitimate forensic purpose in seeking the documents.[5]

32 In Glare v Bolster,[6] Beach J accepted that, while it may be entirely proper in a particular case for a defendant to seek documents pursuant to subpoena to challenge the reliability of a speed measuring device, it was not proper to make a general challenge to the reliability of speed detection devices, or a particular speed measuring device.

33 Mr Cai produced no evidence nor provided any basis before the judge to suggest that the service records might materially assist his defence. He speculated that they might. That speculation did not provide a legitimate forensic purpose for the production of the documents. No error of law or jurisdictional error appears in his Honour's decision to set aside the two records subpoenas.

34 The challenge to his Honour's decision in respect of the manual subpoena raises different issues.

35 To consider whether his Honour erred in deciding that Mr Cai had failed to establish a legitimate forensic purpose for production of the manual, it is necessary to consider the purposes that Mr Cai advanced to his Honour and his Honour's conclusion. Mr Cai filed a lengthy affidavit in support of this judicial review proceeding. However, because this is an application for judicial review, the Court's must focus on the case put to his Honour, rather than additional material filed subsequently.

36 I take into account that Mr Cai was self-represented and has less than complete fluency in spoken English. He had the assistance of an interpreter before the County Court judge and before me.

37 In Craig v The State of South Australia,[7] the High Court stated:

[t]he ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.[8]

38 Mr Cai wanted to use the manual to seek legal and expert advice before the hearing of the appeal.

39 Counsel for the third defendant by reference to the photographs and a diagram stated that there were inductive loops on lanes four and five of Springvale Road. Mr Cai was in lane four immediately before he commenced his turn into Wellington Road. Those loops detected the vehicle going across the intersection once the lights turned red. The loops were on both sides of a line stretching across the intersection, which counsel contended marked the intersection, or at least, the commencement of the intersection .

40 Mr Cai explained to his Honour that in order to present his defence he needed to know when the sensors commenced to operate; whether it was when the front of his vehicle touched the stop line or whether some other part of his vehicle, such as the back of the vehicle, could activate the camera and timer or clock. These matters were relevant to when the camera and the annotation on the photograph identified his vehicle as having entered the intersection.

41 Mr Cai relied on minimum guarantees contained in the International Covenant on Civil and Political Rights, particularly those relating to a fair hearing. The Charter of Human Rights and Responsibilities Act 2006 (Vic) also recognises the right of a person charged with a criminal offence to a fair hearing.[9]

42 Mr Cai described the technical manual as being a critical tool in order to advance technical detail of the TCO red light camera system to the Court.

43 Before me, Mr Cai developed his reasons for seeking production of the manual to included his desire to obtain:

(b) details of what part of the vehicle the sensor detected;

(d) details of what line the camera counted as the start of the intersection;

(f) details of why the camera calculated elapsed time without superimposing the time on the photo;

(g) details of the camera set up and outline of sensors, the gap between the sensors;

(h) details of the specific signal triggers and the e-file format;

(i) details of the onsite test service, reset trouble fix procedure.

44 The third defendant, in submitting that Mr Cai's amended originating motion should be dismissed, relied on the certificate of Mr Lai given under s 83A of the Act and the legislative policy that red light offences could be proved by certificate. The judgment of Beach J in Glare v Bolster[10] suggests that the legislative intent was to enable certificates under s 83A to have that effect. In written submissions, the third defendant submitted that Parliament intended traffic offences detected by a road safety camera to be proved without the need to call evidence related to all aspects of the operation of the cameras and instead provided for proof of the proper operation of the camera by tender of a certificate under s 83A of the Act. The certificate provided proof of the vehicle entering the intersection after the relevant light had turned red in the absence of evidence to the contrary. The third defendant contended that Mr Cai did not point to any facts to the judge upon which a reasonable possibility could be held that the specific road safety camera was not operating properly. Parliament's intention was to provide an efficient method of proving road safety offences.

45 In written submissions, the third defendant also relied on public interest immunity in answer to the production of documents pursuant to Mr Cai's subpoenas, but no material was filed in support of that claim. The third defendant expressed a general concern about possible misuse of documents produced pursuant to the subpoenas. However, documents produced pursuant to subpoena are subject to an implied undertaking that they will only be used for the purpose of the proceeding. [11] Breach of that undertaking may constitute a contempt of court.

46 In my opinion, Mr Cai has established that the judge made an error of law on the face of the record by setting aside the manual subpoena. Mr Cai had stated a legitimate forensic purpose to justify production of the manual. The only issue in the proceeding was whether his vehicle entered the intersection against the red arrow. The informant relied on the certificate under s 83A, with its photographs and annotation of when Mr Cai's vehicle entered the intersection. Mr Cai was entitled to produce evidence to the contrary.

47 Mr Cai's defence appear to be that the photographs and annotation erroneously record the time at which his vehicle entered into the intersection, as his vehicle had already entered the intersection before the change of traffic light to red. Alternatively, he contended that that the photographs recorded the progress of parts of his vehicle after the front of his vehicle had entered the intersection. Mr Cai's defence to the charge may require him to establish what the annotation on the photograph meant. The photographs do not appear to show the point of entry of Mr Cai's vehicle into the intersection. Nor is there an indication of what information the annotation on the photograph conveys when it states 'when the vehicle entered in the intersection' that 2.2 seconds had elapsed since the lights turned red.

48 The judge proceeded on the basis that Mr Cai wanted to know whether the sensors were working properly. That would have been a fishing expedition. However, Mr Cai indicated that he was attempting to establish a different point. He wanted to establish the point at which the photograph, the camera and the time clock treated his vehicle as having first entered the intersection, in order to challenge the 2.2 second time elapse annotation contained on the photograph.

49 I consider, with respect, that his Honour did not identify or consider the basis on which Mr Cai argued that he had a legitimate forensic purpose for issuing the manual subpoena. There was, of course, no definite proof that the contents of the manual would assist his case, but as Gibbs CJ stated in Alister v R:[12]

Although a mere "fishing" expedition can never be allowed, it may be enough that it appears to be "on the cards" that the documents will materially assist the defence.

50 His Honour applied the applicable legal principle of legitimate forensic purpose. However, I consider, with respect, that his Honour did not address the relevant questions and issues raised by Mr Cai's statement of his purpose for issuing the manual subpoena and made an error of law in the sense discussed in the passage that I have quoted from Craig v State of South Australia.[13]

51 That error of law appeared in his Honour's reasons and therefore on the face of the record.

52 I consider that an order in the nature of certiorari should issue to quash that part of his Honour's order of 24 June 2014 that set aside the subpoena directed to the 'Traffic Camera Office (Michelle Corbett)'.[14] I will also issue an order in the nature of mandamus remitting that subpoena to the judge who made the orders on 24 June 2014, or another judge, to be dealt with according to law and in accordance with these reasons. That judge can extend the time for the return of the subpoena and for the production of the manual to the County Court.

[1] [2011] VSCA 55, [26].

[2] (1993) 18 MVR 53.

[3] [2012] VSC 328.

[4] [2012] VSC 328.

[6] (1993) 18 MVR 53.

[7] [1995] HCA 58; (1995) 184 CLR 163.

[9] Section 24.

[10] (1993) 18 MVR 53, 65.

[11] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, [96]-[97].

[12] [1984] HCA 85; (1984) 154 CLR 404, 414.

[13] [1995] HCA 58; (1995) 184 CLR 163.

[14] As to the issue of certiorari to quash part of an order, see M Aronson and M Groves, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013) 779-80 and Re Media, Entertainment and Arts Alliance; Ex parte Arnel [1994] HCA 1; (1994) 179 CLR 84.