Agar v McCabe & anor - [2015] VSC 378

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 5702

CARL PAUL AGAR Plaintiff v

LEADING SENIOR CONSTABLE KATHLEEN McCABE (21804) OF TRAFFIC CAMERA OFFICE

First Defendant

And

THE MAGISTRATES’ COURT OF VICTORIA Second Defendant

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JUDGE:	ZAMMIT J
WHEREHELD:	Melbourne
DATEOFHEARING:	22 July 2015
DATEOFJUDGMENT:	11 August 2015
CASEMAYBECITEDAS:	Agar v McCabe & anor
MEDIUMNEUTRALCITATION:	[2015] VSC 378

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JUDICIAL REVIEW – Conviction and fines for exceeding speed limit – Evidence to the contrary – Evidence to the opposite effect – Evidence accepted by the tribunal of fact as having some weight – Adequacy of Reasons – Standard of reasons – Clear path of reasoning – Burden of proof – Certificate under ss 83 and 83A of the Road Safety Act 1986 – Road Safety Act 1986 ss 66, 79, 81, 83, 83A – Road Safety Road Rules 2009 r 20 – Road Safety (General) Regulations 2009 cls 6, 29, 30.

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APPEARANCES:

Counsel

Solicitors

Forthe Plaintiff

In person

For the First Defendant

For the Second Defendant

Dr G Lyon

No appearance

Maddocks Lawyers

HER HONOUR:

Mr Agar, the plaintiff, was found guilty of a charge of speeding on 4 September 2012 at the Frankston Magistrates’ Court. He was convicted and fined $170 together with
$75.50 statutory costs (the order). Mr Agar now seeks judicial review of the order pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005.

On 14 November 2012, Mr Agar was detected by a fixed road safety camera driving his motor vehicle at 108 km/h in a 100 km/h zone on Eastlink and subsequently charged on 10 July 2013 with a speeding offence.1

In the amended originating motion dated 10 July 2015, Mr Agar alleges in summary that:

(a) the Magistrate erred in law in accepting the certificates tendered by the prosecution under ss 83 and 83A of the Road Safety Act 1986 (‘the RSA’) as proof of the matters contained therein, as Mr Agar led evidence under oath to the contrary, sufficient to displace the proof provided in the certificates;

(b) the Magistrate provided inadequate reasons for judgment, therefore constituting an error on the face of the court record. That is, the Magistrate did not provide any reasons as to why Mr Agar’s evidence was rejected even though it was given weight, nor why the prosecution’s evidence was taken to be proof beyond reasonable doubt of the alleged offence2; and

(c) the Magistrate erred in that the prosecution did not prove its case to the requisite standard of ‘beyond reasonable doubt’ and the Magistrate shifted the onus of proof to Mr Agar.

Legislative framework

The relevant offence with which Mr Agar was charged was that of exceeding the applicable speed limit, which is an offence under r 20 of the Road Safety Road Rules

Plaintiff, ‘Amended Affidavit in Support’, Submission in Carl Paul Agar v Leading Senior Constable Kathleen McCabe (21804) of Traffic Camera Office & Anor,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Agar v McCabe & anor

Details

AGLC: Agar v McCabe [2015] VSC 378
Case: [2015] VSC 378
Decision Date: 11 August 2015

CaseChat Overview and Summary

The applicant, Agar, sought judicial review of a decision by McCabe and another to convict him of exceeding the speed limit and impose fines. The decision was made under the Road Safety Act 1986. The dispute centred on whether the tribunal's decision was supported by evidence and whether the reasons provided were adequate.

The court had to determine whether the tribunal's decision was based on evidence that was open to it and whether the reasons provided were sufficient. The applicant argued that the evidence presented to the tribunal did not support the decision and that the reasons provided were inadequate. The court needed to consider the standard of reasons required in such cases and whether the tribunal's decision met that standard.

The court found that the tribunal's decision was supported by evidence and that the reasons provided were adequate. The court held that the applicant had not discharged the onus of proving that the decision was not supported by evidence. The court further held that the reasons provided by the tribunal were sufficient and met the standard required. The application for review was dismissed.

The court will hear from the parties on the question of costs. The orders made by the court are that the application for review will be dismissed. The court will hear from the parties on the question of costs.

Orders

Orders of the court

The application for review will be dismissed. I will hear from the parties on the question of costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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