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,…
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- AGLC
- Agar v McCabe [2015] VSC 378
- Case
- [2015] VSC 378
- Decision Date
CaseChat Overview and Summary
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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