The Roads & Traffic Authority of New South Wales v Bourke

CATCHWORDS : TRAFFIC OFFENCES - speeding offence - speed limit sign - appeal on question of law alone - Australia Road Rules, Rule 20 and Rule 21 - appeal allowed, matter remitted

Crimes (Appeal and Review) Act 2001 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Road Rules 2008

Alramadan v Director of Public Prosecutions (NSW) (No. 2) [2008] NSWCCA 69 CASES CITED : Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 Rasic v R; Johnny Lee Vella v R; Damien Charles Vella v R [2009] NSWCCA 202 The Roads and Traffic Authority of New South Wales v O'Reilly & Ors [2009] NSWSC 134

TEXTS CITED : Butterworths Australian Legal Dictionary (1997) The Macquarie Dictionary, 3rd ed (1997)

PARTIES : The Roads & Traffic Authority of New South Wales (Plaintiff) Lee Terence Bourke (Defendant)

COUNSEL : B Eurell - Solicitor (Plaintiff) Self represented (Defendant)

SOLICITORS : Hunt & Hunt Lawyers (Plaintiff) Self represented (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

296102/2010 The Roads & Traffic Authority of New South Wales v Lee Terence Bourke

JUDGMENT 1 HIS HONOUR: The Roads & Traffic Authority of New South Wales, the plaintiff, operated a speed camera, which detected that a car, driven by the defendant, Mr Bourke, was travelling at 62km per hour in an area that, according to the plaintiff, is a 50km zone. An infringement notice issued. This was dealt with by the Local Court, which dismissed the charge against Mr Bourke. The Roads & Traffic Authority (hereinafter "the RTA") appeals to this Court pursuant to the terms of s 56(1)(c) of the Crimes (Appeal and Review) Act 2001. 2 The summons does not refer to s 56 of the Crimes (Appeal and Review) Act, but the RTA made it clear that it was under that provision that the appeal was agitated. The facts are not in issue. Relevantly, Mr Bourke was travelling north along Anzac Parade, Kensington/Moore Park and turned left into Cleveland Street, Moore Park and travelled at a speed of 62km per hour. A sign on the side of road (to which other signs have since been added) indicates that the area in Cleveland Street was a 50km zone. 3 The "defence" of Mr Bourke before the Local Court was that the defendant did not see or have knowledge of the 50km per hour sign and that the RTA had given insufficient or inadequate notice of the speed limit. 4 While the defendant was still in cross-examination (and without having heard the RTA on its case), the learned magistrate dismissed the Court Attendance Notice (CAN) in the following terms: "… They've given you inadequate notice. And you'd have to argue in any further submission to me that the RTA would have to acknowledge that up until they changed the signs in late April/early May of this year, they hadn't given the motorists sufficient notice of the speed change from 70 to 50 out of Anzac Parade into Cleveland Street … I agree with you and the information's dismissed." 5 By way of clarification, it should be noted that the speed limit on Anzac Parade, prior to the left-turn into Cleveland Street was a 70km speed limit. Speeding: strict liability 6 Speeding is an offence that is a contravention of Rule 20 of the Road Rules 2008, which is in the following terms: " 20 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.

Penalty and disqualification: a driver who contravenes this rule is guilty of an offence and is liable to a maximum penalty and a period of disqualification (if any) determined in accordance with rule 10-2." 7 It is irrelevant, for the purpose of the present proceedings, to discuss the quantum of the maximum penalty and any period of disqualification. It is clear that, in one sense at least, a contravention of Rule 20 (i.e. speeding) is an offence of strict liability. A driver commits the offence, even though the driver may have no subjective knowledge that the speed limit is being passed, and requires no mens rea (in the foregoing sense) or fault: The Roads and Traffic Authority of New South Wales v O'Reilly & Ors [2009] NSWSC 134, per Schmidt AJ (as her Honour then was) at [11]. With respect, I accept the view of her Honour that a contravention of Rule 20 occurs, notwithstanding the lack of subjective intent to drive at a speed over the limit. 8 The RTA submits that there are three essential elements that a prosecutor must establish (beyond reasonable doubt) to give rise to the strict liability. According to the RTA, they are:

(i) that the defendant was the driver of a motor vehicle;

(iii) that applied to the particular length of road. 9 The difficulty with expressing the essential elements in the foregoing manner is that it does not refer, expressly, to proof of the speed limit. Nevertheless, to the extent that the elements identified by the RTA include that the driver "exceeded the speed limit", it necessarily implies that the speed limit must be proved. But it is in that area that there may be some issue. 10 While Rule 20 of the Road Rules applies as aforesaid, Rule 21 specifies the speed limit by referring to a "speed limit sign". Relevantly, the Rule is in the following terms: " 21 Speed limit where a speed limit sign applies (1) 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.

(3) A speed limit sign on a road applies to the length of road beginning at the sign and ending at the nearest of the following: (a) a speed limit sign on the road with a different number on the sign, …" 11 The Road Rules (including the Dictionary thereto) do not define a speed limit sign in any relevant sense. The most relevant Dictionary definition seems to be "an inscribed board, space, etc., serving for information, advertisement, warning, etc., on a building, along a street, or the like." (The Macquarie Dictionary, 3rd ed (1997)). 12 It has also been defined as "a device used to convey information or a command to people by words, pictures or lights." (Butterworths Australian Legal Dictionary (1997)). 13 The evidence before the Local Court included evidence that the defendant was the driver of the vehicle and had been travelling west-bound in a section of the road prior to which there was a sign marking the roadway as 50km, which sign had not been countermanded. 14 The evidence before the Local Court also disclosed that the speed limit sign was partly obscured, at least from the vantage point of a driver proceeding in the direction that the defendant had proceeded. The fundamental issue that seems to arise from the issue before the Local Court and, before this Court, on appeal, is whether, if, for example, a speed limit sign had been or was totally obscured, would it be a sign of the requisite kind? 15 If the answer to the foregoing is that the structure ceases to be a sign when it cannot be seen, is there not always a question of fact as to whether that part of the road has been delineated by a speed limit sign? As a consequence, no speed limit sign would be applicable and no speed limit, to that effect, would be applicable. 16 The foregoing does not suggest that, in this case, the speed limit sign was obscured, totally or partially, in any sense that would prevent it from being classified as a speed limit sign within the meaning of the Road Rules. However, if that question arises, does not the judgment of the Local Court depend upon a question of fact, namely whether there is a speed limit sign designating a speed limit for that part of the road upon which the driver has been travelling and is alleged to have been speeding? 17 Indeed, whether or not the obscuring of a speed limit sign affects its status as a "sign", there must always be a question of fact, namely, whether a sign is in existence, such as to delineate a speed limit for that particular part of the road. 18 However, in this case, the learned magistrate has not based the dismissal of the proceedings on a proposition that there was no sign, in the sense that there was not a board or structure that brought the speed limit to the attention of a driver, rather that the sign that did exist (which fact was uncontentious) was inadequate. The inadequacy of the notice is not an issue that is relevant to the determination of guilt or innocence. 19 The offence is one of strict liability. The adequacy or otherwise of the notice delineating the speed limit is irrelevant, unless it can be said that there was no speed limit sign (as defined). 20 If, as I suspect may have been the intention of the learned magistrate, it is suggested that the "speed limit sign" was so inadequate as not to be a sign at all, then questions of fact would arise and interesting questions would arise as to whether there was an appeal under s 56 of the Crimes (Appeal and Review) Act. In that sense, the interesting question would be whether, in those circumstances, the ground of appeal involved a question of law alone: see Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 at [44] et seq; Alramadan v Director of Public Prosecutions (NSW) (No. 2) [2008] NSWCCA 69; Rasic v R; Johnny Lee Vella v R; Damien Charles Vella v R [2009] NSWCCA 202 at [12], and the cases cited in each of the foregoing. 21 Nevertheless, that is not the situation with which the Court is faced. 22 In the judgment of the Local Court, the test that was used by the magistrate was the "inappropriateness" or "insufficiency" or "inadequacy" of the notice, not whether the notice was a sign at all. 23 As a consequence, the Local Court has erred in applying the wrong test and misunderstanding the strict liability nature of the offence in question. Further proceedings 24 As it stands, Mr Bourke has now appeared before the Local Court and this Court over a speeding infringement, namely, as stated, that he was travelling at 62km per hour in a 50km zone. At each stage Mr Bourke has been self-represented. Persons charged are entitled to their day in court and are entitled to complain that the notice, being the speed limit sign, was inadequate or insufficient. It may have nothing to do with their guilt or innocence, but it goes to issues such as the sentence to be imposed and whether or not an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 may be appropriate. It is not Mr Bourke's fault that the Local Court misconstrued the section and dismissed the proceedings in a manner that involved an error of law. 25 During the course of the proceedings, I raised with the RTA, or the representative of the RTA, whether, were this Court to find that there was an error of law of a kind that required the appeal to be allowed, an order under s 10 may be made by this Court, rather than remit the proceedings to the Local Court. Supplementary submissions were filed by the RTA in answer to that question. 26 The Crimes (Sentencing Procedure) Act requires a Court, in determining whether to issue an order under s 10, to have regard to the defendant's character, antecedents, age, health and mental condition, the trivial nature of the offence, the extenuating circumstances in which the offence was committed, and any other matter that the court thinks proper to consider. Some of the material, which the Court is required to consider, is not before the Court. As a consequence, having due regard to the requirements of s 20 of the Crimes (Sentencing Procedure) Act, the Court is not in a position to issue such an order. 27 In other words, the Court has been denied the material that would allow it to consider that which is required by the Act. However, if such material were before the Court, given the manner in which these proceedings have now progressed, the material that related to Mr Bourke's character, antecedents, age, health and mental condition (which is the material the Court does not have before it) would have to be extraordinary, for a s 10 order not to be appropriate. 28 Nevertheless, the Court, because it has been denied that material, cannot make such an order. A question arises as to whether the Court can refuse, or decline, to remit the matter to the Local Court, having allowed the appeal. It may be that the Court has such a discretion, but, if it does, I am not minded to exercise it. It is for the RTA as to whether they wish to pursue the proceedings once remitted, or withdraw them. And it is for the Local Court, if the RTA pursues the matter, as to whether an order under s 10, as earlier mentioned, might be made. 29 For the foregoing reasons, the Court makes the following orders:

(ii) The decision of the Local Court, made at the Downing Centre on 24 July 2009, to dismiss the Court Attendance Notice issued by Mr Paul Bimson to Lee Terence Bourke on 8 December 2008, be set aside;

(iii) The matter be remitted to the Local Court to deal with in accordance with law.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.