Roads and Traffic Authority of New South Wales v Hugh

Supreme Court of NSW|2008-12-12|Before: Fullerton J

CITATION : Roads and Traffic Authority of New South Wales v Hugh [2008] NSWSC 1426

The appeal is upheld. 2. The decision of the Local Court at Hornsby, constituted by Mr LJ Brennan LCM on 16 May 2008 dismissing the Court Attendance Notice issued to Thomas Jonathan Hugh on 11 February 2008 be set aside. DECISION : 3. The defendant is convicted of the offence in the Court Attendance Notice. 4. The matter to be remitted to the Local Court to resume the hearing of the matter on the question of penalty according to law. 5. No order as to costs.

Crimes (Local Courts Appeal and Review) Act 2001 LEGISLATION CITED : Criminal Procedure Act 1986 Road Transport (General) Act 2005 Road Transport (Safety and Traffic Management) Act 1999

PARTIES : Roads and Traffic Authority of New South Wales (Plaintiff) Thomas Jonathan Hugh (Defendant)

COUNSEL : T Lynch (Plaintiff) S Glascott (Defendant)

1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CIVIL LIST

2008/13752 ROADS AND TRAFFIC AUTHORITY v THOMAS JONATHAN HUGH

1 HER HONOUR: On 16 May 2008 his Honour Magistrate Brennan dismissed a Court Attendance Notice alleging that the defendant, Dr Thomas Jonathan Hugh, breached Rule 20 of the Australian Road Rules (ARR 20). ARR 20 provides that it is an offence for a driver to exceed the speed limit applying to the length of road where the driver is driving. The penalty attaching to the offence created by that Rule was, at the relevant time, provided for in the Road Transport (Safety and Traffic Management) (Road Rules) Regulations 1999, namely a maximum fine of 20 penalty units. 2 The plaintiff brings this appeal pursuant to s 56(1)(c) of the Crimes (Local Courts Appeal and Review) Act 2001 by operation of which appeals to this Court are confined to a question of law. 3 The defendant was not represented on the appeal having indicated his intention to submit to any orders that might be made should the appeal be successful. The Court Attendance Notice

4 The Court Attendance Notice described the offence allegedly committed by the defendant as "Exceed Speed Limit 15 km/h-Camera Detected-School Zone" (my emphasis). The time and date of the offence were nominated as between 8.23am and 8.29am on 4 September 2007. The place of the offence was designated as the Pacific Highway, Lindfield. Further particulars of the offence were supplied. These may be summarised as follows:

(iv) vehicle registration number AQY 67Y travelling towards camera

(v) between Burleigh Street and Eton Road. 5 I am satisfied that the Court Attendance Notice was drawn in accordance with sections 11, 12 and 175 of the Criminal Procedure Act 1986. 6 The prosecution tendered certificates pursuant to ss 46 and 47(5) of the Road Transport (Safety and Traffic Management) Act 1999 and s 230 of the Road Transport (General) Act 2005. The prosecution also tendered three photographs taken by an approved camera recording device (as defined) pursuant to s 47(3) of the Road Transport (Safety and Traffic Management) Act. So far as is relevant to this appeal, the information recorded on the photographs included "speed limit 40 km/h, vehicle speed 53 km/h, lane 1 Pacific Highway Lindfield, Eastbound, Tuesday 4 September 2007, 08.23.29". 7 A question that is said to arise on the appeal is whether the information in this form was evidence of the fact of the speed limit that was in force at the relevant time and place, and the fact that the vehicle was driven in excess of the speed limit at that time and place. Because of what I regard as an error in the magistrate's approach to proof of the offence and because of the course of the proceedings in the Local Court, in particular the fact that the defendant gave evidence effectively admitting to driving in excess of the speed limit, the proper construction of the various provisions to which I have referred do not strictly arise for determination. That said, I have been invited by the plaintiff to express a view about the construction of these provisions with a view to addressing what is said to be differing approaches by magistrates in the Local Court. 8 The defendant gave evidence that he was driving the vehicle depicted in the photographs at the time, place and speed alleged and that he was familiar with the length of road in the vicinity of the place where the photograph was taken. He said that he had noticed and driven past a sign which designated the area as a "school zone" (such that between the hours of 8am and 9.30am and 2.30pm and 4pm on school days a speed limit of 40 km/h was imposed) but that the lights he understood to be associated with the school zone sign were not flashing as he passed. He also accepted that prior to encountering the speed camera he did not see any other sign indicating or designating a speed limit. 9 It is no part of the plaintiff's case on appeal that the evidence in the Local Court established that the roadway where the excessive speed was detected was in fact "in a school zone" as that term is defined in Rule 21 of the Australian Road Rules. It is accepted for the purpose of these proceedings that there was insufficient evidence or no evidence to establish that fact and, accordingly, that was a finding open to the magistrate. The plaintiff submitted however that the magistrate erred in effectively treating the offence charged in the Court Attendance Notice as having a constituent element that the speeding offence occurred "in a school zone" such that the deficiency in evidence as to that fact warranted the charge being dismissed. In addition, it is submitted by the plaintiff that the magistrate erred by failing to determine in respect of the occasion of the alleged offence, that is at the place and time of its occurrence, that the defendant had exceeded the applicable speed limit. What was the offence charged by the Court Attendance Notice?

10 Despite the fact that the Court Attendance Notice described the offence by reference to the excess of speed being detected by a speed camera "in a school zone", I am satisfied, on a proper construction of ARR 20 as the provision under which the defendant was charged, that the prosecution was not obliged to prove that he exceeded the speed limit while he was travelling in a school zone. Quite simply, to state that the offence occurred "in a school zone" in the description of the offence in the Court Attendance Notice was otiose. Section 16 of the Criminal Procedure Act was relied upon to cure what was submitted to be a defect in the Court Attendance Notice by reason of the offence having been wrongly described. In my view, aside from s 16(1)(a) which deals with improper insertions or omissions of particular words, the balance of the section is concerned with defects resulting from omission, error or misstatement and not the inclusion of irrelevant information. Since the offence is adequately described and since ARR 20 as the offence creating provision is clearly specified, there is no defect of a kind to which s 16 has application. The irrelevant information may simply be ignored. 11 What the prosecution was obliged to prove to make out the offence charged was simply that the defendant exceeded the speed limit that applied to the particular length of road where the offence was allegedly committed. Reference to various of the operating provisions of the Australian Road Rules, in my view, put it beyond doubt that the offence is constituted in that way. 12 Rule 10 of the Australian Road Rules provides that the words "offence provision" in a rule of the Australian Road Rules indicates that a contravention of the rule is an offence. 13 Rule 20 is found within Part 3 of the Australian Road Rules which is designated by reference to speed limits. The rule provides as follows: Obeying the 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.

Note 1 . The rules about speed-limits are as follows: · rule 21 - speed-limit where speed-limit sign applies

· rule 25 - speed-limit elsewhere. 14 For the purposes of this appeal Rule 21 and Rule 23 are relevant. The Rules do not however create separate offences. Rule 21 provides that the speed limit applying to a driver for a length of road to which a speed limit sign applies is the number of kilometres per hour indicated by the number on the sign. Rule 23 provides that the speed limit applying to a driver for any length of road in a school zone is the number of kilometres per hour indicated by the number on the school zone sign on a road or the road into the zone. 15 School zone is defined as: (a) if there is a school zone sign and an end school zone sign , or a speed-limit sign with a different number on the sign, on a road and there is no intersection on the length of road between the signs - that length of road; or (b) if there is a school zone sign on a road that ends in a dead end and there is no intersection, nor a sign mentioned in paragraph (a), on the length of road beginning at the sign and ending at the dead end - that length of road; or (c) in any other case - the network of roads in an area with: (i) a school zone sign on each road into the area, indicating the same number; and (ii) an end school zone sign , or a speed-limit sign indicating a different number, on each road out of the area. 16 Reference to the fact that the speed limit was exceeded in a school zone may, or perhaps even should have been included as particular of the offence charged. However, the fact that it was not has no bearing on the outcome of this appeal since the failure to prove a particular, proof of which is not essential to the offence charged, did not provide a proper basis for dismissing the Court Attendance Notice. Evidence of speed in excess of the speed limit 17 Section 45(1) of the Road Traffic (Safety and Traffic Management) Act provides that an approved camera recording device, designed for attachment to an approved speed measuring device is a device, for the purposes of taking photographs of vehicles being driven in excess of speed limits and for recording on any such photographs the following matters: (a) the speed at which any such vehicle is travelling (as measured by the approved speed measuring device), and (b) the date on which the photograph is taken, and (c) the time and location at which the photograph is taken, and (d ) the speed limit that, in accordance with the regulations, is applicable to the length of road or road related area at which the photograph is taken, and (e) the direction in which the vehicle is travelling (that is, towards or away from the device). (emphasis added) 18 Section 46 provides that in proceedings for any offence in which evidence is given of a measurement of speed obtained by the use of an approved speed measuring device, a certificate purporting to be signed by an appropriate officer certifying that: (a) the device is an approved speed measuring device within the meaning of this Act, and (b) on a day specified in the certificate (being within the time prescribed by the regulations before the alleged time of the offence) the device was tested in accordance with the regulations and sealed by an appropriate officer, and (c) on that day the device was accurate and operating properly, is admissible and is evidence (unless evidence to the contrary is adduced) of the particulars certified in and by the certificate.

19 A certificate under s 46 was tendered in the proceedings. This certificate had the effect of certifying a type, serial number, location and location identifier of the particular approved speed measuring device which recorded the defendant's vehicle travelling at the specified speed of 53 km/h as recorded by an approved cameral recording device to which s 47 of the Act refers.

20 A certificate under s 47(5) was also tendered in the proceedings. This certificate had the effect of certifying the type of camera system, the location of the camera system, its location identifier and the fact that on inspection the approved digital recording camera device was found to be operating correctly. 21 Importantly, s 47(3) provides:

(3) A photograph tendered in evidence as a photograph taken by an approved camera recording device on a specified day and at a specified location (a) is to be taken as having been so taken (unless evidence to the contrary is adduced), and (b) is evidence unless evidence to the contrary is adduced, of the matters shown or recorded on the photograph. (emphasis added)

22 In this case there being no evidence to the contrary adduced in the proceedings, the photographs tendered in evidence as photographs taken by the approved camera recording device on 4 September 2007 at the specified location are evidence of all matters shown and recorded on the photographs. In my view there is no basis upon which s 47(3)(b) of the Act, expressed as it is in general terms, ought be read down so as to include only a reference to matters recorded or shown photographically as distinct from by digital text. 23 Having regard to the operation of s 47(3)(b), evidence of the speed limit of 40 km/h, fixed in accordance with the regulations applicable to the length of road on which the photograph was taken, was properly before the Court, as was the fact that the defendant travelled in excess of that speed limit. There was no evidence of any other speed limit governing the use of the roadway by drivers at the relevant time. 24 Since I am satisfied that the reference to "school zone" is not a constituent element of the offence charged, the issue before the magistrate was whether the school zone sign, fixing 40 km/h as the applicable speed limit, was applicable to the length of the road on which the offence was alleged to have occurred and at the time the offence was alleged to have occurred. 25 In my view, the learned magistrate was in error in both importing into the offence a requirement that the area of the roadway upon which the defendant was travelling when photographed be wholly delineated as a "school zone" and by failing to have regard to the fact that the speed signage at the designated part of the roadway fixed the speed limit at 40 km/h in any event, such as to justify the offence being proved. 26 Orders:

The appeal is upheld.
The decision of the Local Court at Hornsby, constituted by Mr LJ Brennan LCM on 16 May 2008 dismissing the Court Attendance Notice issued to Thomas Jonathan Hugh on 11 February 2008 be set aside.

The defendant is convicted of the offence in the Court Attendance Notice.

The matter to be remitted to the Local Court to resume the hearing of the matter on the question of penalty according to law.

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