(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
13 The situation in relation to the offence with which Mr Ahmed was charged was that the speed applicable to the length of road where the alleged offence occurred, as well as the speed at which Mr Ahmed was driving, was established on the evidence, in accordance with the provisions relating to speed cameras in the Road Transport (Safety and Traffic Management) Act, as discussed in Hugh. The relevant photographs and certificates were in evidence. Mr Ahmed also conceded at the hearing below that the speed limit was 40 kilometres per hour and that he was driving in excess of that speed.
14 In accordance with Rule 21(3), the 40 kilometre speed limit applied to the length of road after the sign notifying that speed, until the speed limit was thereafter changed, by another sign, or the road ended.
15 In terms of the offence created by Rule 20 with which Mr Ahmed was charged, what had to be proven, and was proven, was that Mr Ahmed was driving at a speed above the speed-limit applicable to the length of road at which the offence was alleged to have occurred, that being where Mr Ahmed was driving, when the alleged offence occurred. That the speed limit applicable later changed, or that the length of road ended, was irrelevant to the question of whether an offence had been committed at the point of the road to which the charge related.
16 In this case the speed limit at that point of the road was not in question. There was evidence of the signage, as well as the speed limit recorded by the speed camera. Mr Ahmed did not challenge the prosecutor's case that the applicable limit was 40 kilometres per hour, or that he was driving in excess of that speed, as the speed camera had recorded. The dismissal of each charge flowed from his Honour's view that the prosecutor also had to establish where the 40 kilometre speed limit applicable to the length of road at which the offence occurred later changed, or the road ended. Consistently with the views of Fullerton J in Hugh at [11] and that of Price J in Roads and Traffic Authority of New South Wales v Lian [2009] NSWSC 146 (who agreed with her Honour at [15]), I am also of the view that this was not an element of the offence charged and was not otherwise required to be proven by Rule 21. Fullerton J observed in Hugh:
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.
17 It follows that his Honour misconstrued the provisions of Rules 20 and 21 of the Australian Road Rules and failed to have regard to the relevant provisions of the Road Transport (Safety and Traffic Management) Act. On the evidence there can be no question that the offence charged was proven. The appeal must be upheld and the matter returned to the Local Court for further hearing.
18 I have considered the submissions which Mr Ahmed advanced. They are not a basis upon which this appeal my be refused.
19 Consistent with the plaintiff's submissions, I am satisfied that this case is an appropriate one for orders contemplated by s 6 of the Suitors Fund Act 1951 to be made in favour of the defendant. (See the discussion of Hall J in Burringbar Real Estate Centre Pty Limited v Anthony John Ryder & Ors [2008] NSWSC 891.) That will accommodate Mr Ahmed's concerns about bearing the costs of this appeal.