Agar v McCabe & anor
[2015] VSC 378
•11 August 2015
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, S CI 2014 05702, 6 July 2015, (‘Plaintiff’s Amended Affidavit in Support’), Exhibit CPA-1.
Ibid [3a].
2009 (‘the Rules’).
Clause 29(1)(a) of the Road Safety (General) Regulations 2009 (‘the Regulations’) provides that all offences within the RSA and the Rules which involve a driver exceeding the applicable speed limit are offences which may be detected by a prescribed road safety camera. The speed measuring device used in detecting his speed was a Gatsometer Digital Radar Camera System – Parabolic (DRCS-P) (‘the Gatsometer Camera’), a speed camera with identifying number DRCS-P0038 (DCU number No.0492, antenna number 0492).3 The Gatsometer Camera is defined as a prescribed road safety camera under cl 30(n) of the Regulations.
A prescribed road safety camera is defined by s 3 of the RSA as a type or class of speed detector that is prescribed by regulations for the purposes of the RSA.
It is provided under s 79(1) of the RSA that prescribed road safety cameras which have been tested, sealed and used in the prescribed manner may be used to establish the evidence in a criminal proceeding of the speed of a motor vehicle in the absence of evidence to the contrary.
The present offence is one which is classified as an operator onus offence pursuant to s 66 of the RSA, as it was a prescribed offence that was detected by a prescribed road safety camera.
Section 81 of the RSA further provides that the evidence of speed, as determined or indicated by the prescribed road safety camera, is proof of that speed in certain circumstances. Specifically, s 81 states:
(1) If in proceedings for an offence to which section 66 applies the speed at which a motor vehicle or trailer travelled on any occasion is relevant, evidence of the speed of the motor vehicle or trailer as indicated or determined on that occasion by –
(a) a prescribed road safety camera when tested, sealed and used in the prescribed manner;…
…
Ibid Exhibit CPA-3.
is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the speed of the motor vehicle or trailer on that occasion.
Provision is made in s 83 of the RSA for establishing that a prescribed road safety camera was tested, sealed and used in the prescribed manner, where it is stated that:
A certificate in the prescribed form to the effect that any prescribed speed detector or device referred to in section 79 or 82 has been tested or sealed in the prescribed manner, signed or purporting to be signed by a person authorised to do so by the regulations is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof that the prescribed speed detector or device has been so tested or sealed.
Once it has been proven, through a certificate under s 83 of the RSA, that a prescribed road safety camera was tested, sealed and used in the prescribed manner, a further certificate may be tendered under s 83A, which may provide evidence of the speed of a motor vehicle. Section 83A states:
(1) A certificate containing the prescribed information purporting to be issued by an authorised person certifying –
(a) that a prescribed road safety camera was tested, sealed or used in the prescribed manner; or
(b) that an image or message described in the certificate was produced by a prescribed road safety camera or by a prescribed process; or
(c) as to any other matter that appears in, or that can be determined from, the records kept in relation to the prescribed road safety camera or the prescribed process by Victoria Police—
is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate.
…
Finally, cl 6(2) of the Regulations provides that a certificate under s 83A(1) of the RSA contains the prescribed particulars if, in addition to any of the matters referred to in s 83A(1), the certificate:
…
(c) certifies that, to the best of the knowledge and belief of the person issuing the certificate, the matters set out in the certificate are true and correct.
The Magistrates’ Court proceeding
In the Magistrates’ Court proceeding, the prosecution tendered a s 83 certificate4 and a s 83A certificate.5 Mr Agar did not call any witnesses and did not call for cross- examination on the contents of the certificate. Mr Agar relied on an affidavit sworn
6 January 2013.6 Mr Agar gave sworn evidence whereby he challenged the contention that he was speeding and gave evidence to the effect that he was not speeding and therefore by inference the information on the certificates was wrong.7
At the time the prosecution tendered the ss 83 and s 83A certificates, Mr Agar objected to the certificates. Initially it appeared that Mr Agar was objecting to the tendering of the certificates. However, Mr Agar clarified:MR AGAR: …I wasn’t objecting to them [ss 83 and 83A certificates] being entered into evidence, they are evidence, they are not proof. There’s – there’s a difference. The legislative scheme…
MARTIN J: I’m sorry, just I’ll hold you there. You did say earlier that you were objecting to the documents going into evidence, you are now saying that you are not objecting to it.
MR AGAR: I’m objecting to the documents as proof of the offence, yes.
They are certainly evidence, and the legislative scheme states that they are proof in the absence of evidence to the contrary or evidence of the opposite effect. [Emphasis added]
…
MARTIN J: If they are – if there is not proof of what’s contained in them then the tender of the certificates is probably objectionable in any event. But I’ll deal with this issue and then the prosecutor may then seek to call other evidence, he may not, I don’t know what – what.8
Magistrate Martin handed down a ruling in relation to the certificates and concluded:
I’m satisfied that they are prima facie proof of the matters contained in those certificates. Mr Agar, you may of course challenge this – the factual conclusion of the natures of those certificates.9
Ibid Exhibit CPA-3.
Ibid Exhibit CPA-2.
Ibid Exhibit CPA-4.
Transcript of Proceedings, Victoria Police v Carl Agar (Magistrates’ Court Frankston, D12092837, Magistrate Martin, 4 September 2014) (‘Transcript of the Magistrates’ Court Proceedings’) 9-15.
Ibid 6-7.
Ibid 8.
In his amended affidavit sworn 6 July 2015, Mr Agar provides a summary of what he says was the evidence he gave to the Magistrates’ Court which included:
(a) submission of an Affidavit written and sworn shortly after the alleged offence setting out my version of events at the time of the alleged events. ’CPA-4’;
(b) that the speed of his vehicle at the time was 80 km/h;
(c) that it was late at night and an unusually [sic] time for the plaintiff to be travelling on this road;
(d) the plaintiff was controlling my vehicles [sic] speed using cruise control;
(e) the plaintiff travel the road on average twice, six days per week;
(f) that the plaintiff was fully conversant with the location of the speed cameras on Eastlink;
(g) that the speed camera was located immediately at the end of an
80km/h construction zone;
(h) that the plaintiff took care to always check his vehicle speed at the camera locations he believed them to be inaccurate;
(i) that the plaintiff had particular recall of the occasional [sic] and circumstances;
(j) that the plaintiff had undertaken extensive checks of his speedometer to satisfy himself as to its accuracy; and
(k) that the plaintiff had driven numerous vehicles the full length of Eastlink in both directions in a range of motor vehicles without being detected of speeding over the past two years.10
In his evidence Mr Agar said in relation to the accuracy of his GPS:
…with respect to – to - as I said, I’d always drive on the freeway on cruise control, there’s a question, ‘Do I know the accuracy of the speedometer in that car?’. I’ve recently sold it. I drove it for 202,000 kilometres, regularly checked the – the speedo against either GPS or in New South Wales against marked five kilometer zones, the various signs that sometimes work giving you speed comparisons for your speedo in Victoria. That particular speedo was a-that car’s an Audi, has a very accurate speedo, it varied from 104km/h it would read at 100 when the tyres were new, and would change down to about 102 when the tyres were getting down towards the end of life. So if I set it on 100, I’d be travelling slightly below the speed limit; if I set it on 80 which I had in this particular case, the car would be travelling at 79, is my estimate. The-the operation of the cruise control in that car, if you – it’s a stalk on the left – on the left hand of the steering wheel, if you lift it momentarily it increases the
Plaintiff’s Amended Affidavit in Support [26].
speed by 1 km/h, if you lift it and hold it for two seconds, it increases it by 10. So, what I did on that night, as I got to the end of the road work sign, is I lifted the cruise control and that would take four seconds to lift the speed to
100km/h. I always did it that way.
…
I’ve also got a list here of vehicles that I’ve driven along Eastlink, I’ve been driving along Eastlink for many years, I live in Mount Eliza, my office is in Preston.11
Mr Agar was cross-examined about how it could be said that his speedometer and cruise control settings were reliable:
PROSECUTOR: …You said in your evidence that you know the accuracy of your speedo.
MR AGAR: Yep.
PROSECUTOR: And that you check it against a GPS.
MR AGAR: Yes.
PROSECUTOR: And in New South Wales the roadside road…
MR AGAR: Five kilometre marked sections on the freeways, yes, the way to…
PROSECUTOR: You’ve never had your GPS calibrated have you?
MR AGAR: GPS calibrated?
PROSECUTOR: Yes.
MR AGAR: Speedo or the GPS?
PROSECUTOR: Your GPS.
MR AGAR: No. I’ve used several…
PROSECUTOR: So you’re unable to give any evidence, direct evidence from your knowledge to the court as to the accuracy of your GPS, are you?
MR AGAR: Multiple GPS’s I’ve used.
PROSECUTOR: And have any of them been checked for their accuracy?
MR AGAR: No, no.
PROSECUTOR: So you can’t give any direct evidence as to how accurate they are?
Transcript of the Magistrates’ Court Proceedings 11-12.
MR AGAR: No.
PROSECUTOR: And with respect to your speedo, you say that you’ve always checked the accuracy of your speedos, I assume that’s always been against a GPS?
MR AGAR: No. As I said it’s been either against measured kilometres when I’ve been in New South Wales, there’s
– the New South Wales RTA put up measured
kilometres sections, they’ve been there for as long as I can remember driving in New South Wales to check your speedo; and also against the various signs that are put up – speed measurement signs that appears on the freeways when they’re working, the ones down to Geelong, there’s some on the Hume as you leave Melbourne and so on.
PROSECUTOR: Yes. You’re unable to give any direct evidence as to the accuracy of those either, are you?
MR AGAR: No, no.
PROSECUTOR. And you’ve done a great deal of research into speed cameras it would be fair to say… With relation to this Audi, when was the last time you had its speedometer checked on a dynamometer?
MR AGAR: I don’t.
PROSECUTOR: You’ve never..
MR AGAR: Because the dynamometer can’t give you a certified accuracy. A dynamometer would not give you the certified accuracy of greater than the – or better than the speed of the manufacturer.
PROSECUTOR: So..
MR AGAR: The manufacturers would certify it to be no greater than plus three kilometres an hour at 100.
PROSECUTOR: I’m not suggesting…I’ll rephrase that. You would agree that whilst your evidence is, ‘I checked the accuracy of my speedo, I know this is what I did on that occasion’. The reality is you can’t give any direct evidence that your speedo malfunctioned on that night, can you?
MR AGAR: Why would I? Why would I even think that it had malfunctioned?
PROSECUTOR: Well you can’t say that it didn’t, can you?
MR AGAR: No, I assume it always works and failing that…
PROSECUTOR: Same as you can’t say that albeit at that particular point
in time, that your cruise control wasn’t working correctly, you can’t give any direct evidence of that either, can you?
MR AGAR: As what, a mechanic?
PROSECUTOR: Yeah.
MR AGAR: Well…
PROSECUTOR: Well, you – you can’t say directly that neither.
MR AGAR: I-I can.
PROSECUTOR: ...One of those devices…
MR AGAR: I can say directly that when I set my cruise control at
100, or at 80 for example, in any sort of traffic zone, that car did not pass at great speed every other vehicle on the-on the highway. So the traffic generally, along the Eastlink, drives at somewhere about 95 to 100 km/h. When I set my speedo on 100…12
The parties then made legal submissions.13
Magistrate Martin then handed down his ruling, which I will set out in full.
MARTIN J: I’ve already made a ruling with respect to, well the three certificates, but in-principally with respect to the section 83 and the section 83A certificates. In making that ruling I said it was open to you to challenge the matters asserted in the certificates and when the Supreme Court spoke of challenge, when referred to challenge it’s, what I would suggest to you is not merely a statement that I challenge, but in fact that-that there be evidence adduced, admissible evidence adduced to support that challenge. You have indeed challenged the–the reading, or the contents of the certificate by giving evidence as to your observations of your own driving on the particular night. You have not of course called expert evidence, you’ve not sought to have police witnesses in court to challenge their evidence in the form of cross-examination. You have given evidence that you were aware of the–that you are familiar with the roadway, the freeway at this point. You gave evidence that you had a specific recollection of this night because you were leaving work much later than usual. You did say in your evidence that you were the only car on the road at the time. You gave evidence that you had your cruise control on your vehicle engaged whilst you were travelling through the 80 km/h construction zone. You said that on reaching the end of that zone you held the stalk that operates the cruise control, you told me that if you hold it for a period of four seconds it
Ibid 13-14.
Ibid 16-17.
will increase the control speed by 20 km/h, and that you also told me that from the end of the 80 km/h zone, or the commencement of the 100 zone, to the speed camera, the distance is such that you would cover it in about one second if you were travelling at 80 km/h. On your evidence, the conclusion would be that at the time you–there was a reading taken of your speed, that you would have been travelling at the control speed of 80km/h. You’ve given evidence that on past occasions when travelling on the freeway, but I think you didn’t confine it necessarily to the freeway, that travelling at
100 km/h in a 100 km/h zone, that your speed was generally the same as the vehicles around you and from that you concluded that your speedo was generally accurate. You gave evidence that you checked speeds on this vehicle, on GPS devices, and that you’d checked other speeds – other vehicles with the GPS devices. You told me that you checked them – the speed of this vehicle in New South Wales on the measured distance, and you gave evidence of also checking speeds on the Victoria speed advisory devices, you mentioned the Geelong Road and you mentioned the Hume Highway. But I can tell you that the Hume Highway one hasn’t operated for several years now so that wouldn’t have been much assistance to you. You also gave evidence that you have not, or that you did not calibrate the GT-GPS devices, that you didn’t know whether the other devices that you checked your speed against was operating appropriately. In the circumstances, whilst you have challenged it, and whilst I accept that you have a genuine belief as to your speed, your evidence does not, in my view, offer evidence to the contrary as to the speed of your vehicle at the point if was detected. So in those circumstances I find the charge proved.14
Evidence to the contrary
The concept of ‘evidence to the contrary’ has been considered by this Court, most recently in Agar v McCabe (‘McCabe’)15 and Agar v Petrov (‘Petrov’).16
In DPP v Cummings (‘Cummings’),17 Kellam J discussed a definition of evidence to the contrary in the context of proceedings where the respondent had sought to rebut a statutory presumption of the facts and matters set out in a certificate under s 57(3) of the RSA in relation to the taking of a blood sample. Kellam J found that the phrase
‘to the contrary’ meant ‘to the opposite effect’, and that it ‘must at least be accepted
by the tribunal of fact as having some weight’. Slight or unconvincing evidence
Ibid 17-18.
[2014] VSC 309.
[2015] VSC 168.
[2006] VSC 327.
would not be enough to constitute evidence to the contrary.18
This interpretation has subsequently been accepted in cases dealing with speeding offences and certificates issued pursuant to ss 83 and 83A of the RSA, with T Forrest J adopting the definition in McCabe, and McDonald J following this approach in Petrov.19
As per Kellam J’s approach, two separate elements must be made out to establish evidence to the contrary, with the first element being that there is evidence to the opposite effect of the matters set out in s 83A of the RSA, and the second element being that the tribunal of fact accepts that such evidence has some weight.
As to what may be held to constitute evidence to the opposite effect in the present matter, it was held in Agar v Dolheguy that ‘to adduce other evidence of the vehicle’s speed, on the occasion in question, notwithstanding the speed indicated by the speed measuring device’ is an instance of evidence to the contrary contemplated by the RSA.20 That matter involved a challenge by Mr Agar to a certificate issued under s 83 of the RSA and the question of whether a speed measuring device had been properly tested. As part of his decision, Macaulay J found no error of law emerged in a decision by the County Court that Mr Agar’s oral testimony, as to his observations about his speed immediately before and after a speed measuring device, did not displace the evidence of the speed measuring device’s reading.
Petrov involved a similar factual matrix to the present matter, with Mr Agar seeking judicial review of a decision by the County Court to reject an appeal against a fine and conviction for a speeding offence in breach of r 20 of the Rules. The case involved judicial consideration of certificates granted under ss 83 and 83A of the RSA. In his decision McDonald J noted that Mr Agar had provided evidence to the opposite effect but that the lack of reasons provided by Gucciardo J in the County Court proceedings, as to the weight given to this evidence, was problematic,
Ibid [34]-[35].
Agar v McCabe [2014] VSC 309 [18]; Agar v Petrov [2015] VSC 168 [18].
Agar v Dolheguy [2010] VSC 506 [61].
especially as there had been no challenge to Mr Agar’s credit in the proceedings.21
In summary, Mr Agar submits that he gave evidence under oath before the
Magistrates’ Court which was to the opposite effect of the matters set out in the s
83A certificate. Mr Agar’s evidence set out the circumstances of his driving and claimed that his speed was 80 km/h at the time he was recorded detected speeding at 108 km/h. It was agreed that there was no challenge to Mr Agar’s credit in the Magistrates’ Court proceeding and that Mr Agar had a genuine belief as to his speed.
However, it was put to Mr Agar that he could not confirm the accuracy of his speedometer or GPS as they had not been calibrated. Mr Agar’s evidence was that he had never had the speedometer checked on a dynamometer; there was no independent expert as to whether his cruise control or speedometer had malfunctioned; and Mr Agar was not an expert and could not give an expert opinion as to how fast the traffic travelled.
The first defendant submits that this case can be distinguished from Petrov in that it can be concluded that Magistrate Martin was not satisfied that evidence to the contrary of sufficient weight to displace the prima facie proof of speeding, through the tender of the ss 83A and 83 certificates, had been provided. The first defendant submits that the prosecution cross-examined Mr Agar and challenged Mr Agar’s ability to determine the accuracy and speed of his vehicle at the time of the camera recording. The first defendant submits that Magistrate Martin’s reasons expressly raise sufficiency of evidence to the contrary as to the speed of Mr Agar’s vehicle at the time of the offence, and the calibration of the speedometer.22
As I have set out earlier in this judgment, the s 83A certificate tendered before Magistrate Martin contained an image of Mr Agar’s vehicle together with the message: ‘Eastlink, Rowville, Southbound, Wellington Road bridge in lane 3 from the left for the vehicle direction of travel. 100 km/h speed limit on 14/11/2012 at
Agar v Petrov [2015] VSC 168 [21]-[24].
Transcript of the Magistrates’ Court Proceedings 17.
12:32:07am. Vehicle speed 108 km/h at that time and place’. The certificate is then certified by Kevin Lai, Serco Traffic Camera Services and the certification states:
I KEVIN LAI, am the person who caused the printed images and messages produced in paragraph (c) to be printed and I certify that, to the best of my knowledge and belief the matters set out in this Certificate are true and correct and I am a person authorised by the Chief Commissioner of Police for the purposes of section 83A of the Road Safety Act 1986 to issue this Certificate under s 83A(1) of the Road Safety Act 1986.23
The combined effect of ss 81 and 83A(1)(b) is that, absent evidence to the contrary, the s 83 certificate was proof of the speeding charge.
In this case, given Mr Agar’s evidence on the above matters under cross- examination, I consider there was a basis for Magistrate Martin rejecting Mr Agar’s evidence about the speed he was travelling and to conclude that it was not of sufficient weight to displace the prima facie evidence before the court by the tendering of the ss 83 and 83A certificate.
Unlike Petrov, there was no evidence in this case about other vehicles potentially triggering the speed camera. There was full transcript of the proceeding in the Magistrates’ Court and there were no other witnesses called by either party.
As McDonald J said in Agar v Petrov:
The s 83A certificate constitutes prima facie proof that Mr Agar was travelling at 67kmh. Together with s 81—and in the absence of evidence to the contrary—it is proof that Mr Agar’s vehicle was travelling in excess of the prescribed speed limit.
…
If the judge concludes that the evidence of Mr Agar is of no weight then it will not be ‘evidence to the contrary’. In the absence of other evidence the charge will be proved on the basis of the s 83A certificate. If the judge is satisfied that the evidence is of some weight, it does not follow that the court cannot find the charge proved beyond reasonable doubt on the basis of the s 83A certificate. Rather, the court will have to weigh any evidence advanced by Mr Agar against the evidentiary weight to be attached to the s 83A certificate.
Once the s 83A certificate is admitted into evidence, it is evidence of the matters contained therein. Evidence which is to the ‘opposite effect’ of the
Plaintiff’s Amended Affidavit in Support, Exhibit CPA-2.
matters contained in the certificate, does not preclude a court from convicting on the basis of the s 83A certificate. Whether or not a court does so depends upon the judge’s assessment of the quality of the evidence which is put forward as being contrary to the evidence constituted by the s 83A certificate. For example, if a person charged with a speeding offence gives evidence that s/he looked at their speedometer which displayed a speed at or below the speed limit, such evidence invites close scrutiny. First, it is unlikely that a driver will have been looking at the speedometer at precisely the same moment the speed camera has been activated. Second, unless the driver can lead evidence that the speedometer has been checked for accuracy shortly prior to the vehicle having been recorded as speeding, there will be an issue as to the weight to be accorded to the driver’s evidence.24
I consider Magistrate Martin did weigh Mr Agar’s evidence against the evidentiary weight to be attached to the s 83A certificate. Magistrate Martin was in the unique position to assess Mr Agar’s evidence, as to content, credit and demeanour. It was open to Magistrate Martin to find on the facts that Mr Agar’s evidence was not sufficient and that there was no objective marker by which Mr Agar’s evidence could be measured. I do not consider there has been an error of law.
Adequacy of reasons
Mr Agar contends that ‘the record clearly does not include reasons for the decision’.25 Mr Agar submits that in circumstances where there is no challenge to his credit it was incumbent upon Magistrate Martin to articulate the basis for any conclusion which he reached.
It is clear from the authorities that there is an obligation on a judge to provide reasons for a judgment.26 There are several core purposes which serve as the basis for the need for reasons to be provided in judicial reasons. These include the need to assist an appellate court in determining whether the original decision contains an appealable error; to enable the parties to see the extent to which their arguments have been understood and accepted, as well as the basis of the judge’s decision; to further judicial accountability; and finally because the courts are not only required to
Agar v Petrov, [2015] VSC 168 [32]-[34].
Plaintiff’s Amended Affidavit in Support [75].
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72, 83-5;
Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1, 30-1 [99];
Ta v Thompson [2013] VSCA 344 [27].
resolve disputes, but to also formulate rules for application in future cases.27
The High Court has noted that the standard of reasons required of courts in making a judicial decision ‘can vary markedly with the context’.28 Particularly, there is less certainty as to the extent of reasons that are required to be given where there is no right of appeal from a decision. However, where it is a final decision there remains the obligation to state reasons which outline the grounds of the decision made.29
Justice T Forrest in McCabe noted that it is desirable in matters before the Criminal Division of the Magistrates’ Court for the Magistrate to ‘provide at least some reasons for their decisions. These need not be lengthy and in a case such as this might consist of no more than one or two lines.’30
The decision of McDonald J in Petrov is useful in its exploration of what the prior authorities have established as to the adequacy of reasons.31 Petrov refers to Brittingham v Williams (‘Brittingham’),32 where it was observed that ‘a case may turn entirely upon a finding in relation to a single and simple question of fact, or be so conducted that the reason or reasons for the decision is or are obvious to any intelligent person…’.33
Brittingham was cited with approval by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (‘Soulemezis’),34 where it was stated that:
… where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary ‘for him to go further and say, for example, that the reason was based on demeanour’… The position will usually be different if other evidence and probabilities are involved. A superior court, considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding.35
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279; Ta v Thompson [2003] VSC 183 [28].
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 498 [45].
Ta v Thompson [2003] VSC 183 [31]-[32].
[2014] VSC 309 [13] (citations omitted).
Agar v Petrov, [2015] VSC 168 [12]-[18].
[1932] VLR 237.
Ibid 239.
(1987) 10 NSWLR 247.
Ibid 280 (emphasis in original).
Ta v Thompson (‘Ta’)36 involved the judicial review of a County Court decision where the defendant was found guilty of possessing heroin. The County Court provided sparse reasons in its decision to reject the defendant’s testimony and evidence. On review, the Court of Appeal held that where the defendant had the burden of proof in respect of a certain issue and a judge had not been persuaded the burden had been satisfied, a judge is only required to provide a statement that he or she did not accept the testimony or evidence of the defendant in that respect. Although more extensive reasons may be preferable, the Court of Appeal held that a summary statement was sufficient.37
These cases demonstrate that in respect of a decision which turns in part upon a witness’ testimony, a judge is only required to provide a summary statement in explaining why he or she has not been persuaded by that witness.
As McHugh J noted in Soulemezis, where reasons are necessary, it is sufficient for a judge or magistrate to apprise the parties of the broad outline and constituent facts of the reasoning on which he or she has acted. This indicates to the parties why the decision was made and enables them to exercise any rights available to them in respect of it. There is no requirement that a judge or magistrate provide lengthy or elaborate reasons. There only needs to be articulated the essential ground or grounds upon which the decision was made.38
This was cited with approval in Ta, where the Court of Appeal observed that the judge’s ‘obligation extended to identifying the grounds or basis of her decision in the same way as such an obligation is regarded as a necessary corollary to a right of appeal on questions of law’.39 The reasons ultimately ‘needed to explain the process of reasoning of the County Court judge and to state the grounds of the decision sufficiently to enable the court to see whether the judge’s decision did or did not
[2013] VSCA 344.
Ibid [56].
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 271, 273, 280.
Ta v Thompson [2003] VSC 183 [36].
involve an error of law.’40
In Opeka Pty Ltd v Mackie Group Pty Ltd (‘Opeka’),41 Nettle J outlined the test to be applied to determine whether a judge or magistrate has erred in law by failing to state their reasons adequately:
It is not in issue that as a general rule a judge or a magistrate should state his or her reasons. Nor is it in issue that the failure of a judge or magistrate to state his or her reasons may constitute an error of law. But that is not always the case. Sometimes the simplicity or the context of a case or the state of the evidence may be such that a mere statement of the judge’s conclusion will be sufficient to indicate the basis of the decision. Some examples were given by Cussen ACJ in Brittingham v Williams. Other times it may be that only a brief statement of reasons is required. The test to be applied in determining whether a judge or magistrate has erred in law by failing to state his or her reasons or by failing to state them adequately was thus recently restated by the Court of Appeal in Agresta v Agresta in these terms:
‘Want of reasons may amount to an error of law where the absence of reasons would frustrate a right of appeal. That would occur if the appellate court is unable to ascertain the reasoning upon which the decision is based. Whether reasons are inadequate in this sense will depend upon the nature of the decision and the circumstances of the case.’42
An argument as to inadequacy of reasons was successful in Petrov. Justice McDonald found that the oral reasons delivered by Gucciardo J in the County Court, which constituted a statement to the effect that ‘as there is no evidence to the contrary in accordance with the legislation I find the charge proved’, were insufficient and constituted an error of law on the face of the record.43 The reasoning of Nettle J in Opeka was applied in finding that the simplicity and the state of the evidence of the County Court proceedings did not justify Gucciardo J providing such limited reasons.44
In finding the reasons inadequate, McDonald J noted that it was the ordinary course for a judge to lay out the basis for finding that a witness’ evidence had no weight in their final decision. In that case, no challenge had been made by opposing counsel to Mr Agar’s credit and nor had it been put to Mr Agar that his evidence was fabricated
Ibid [62].
[2003] VSC 183.
Ibid [24] (citations omitted).
Agar v Petrov, [2015] VSC 168 [1].
Ibid [17], [24].
or based on a mistaken belief. McDonald J therefore held that reasons should have been provided as to the basis for the conclusion that Mr Agar’s evidence be given no weight.45
Mr Agar argued in his submission before this court that the present matter is analogous to Petrov, with Magistrate Martin’s lack of reasons meaning that there was no clear path of reasoning as to why Mr Agar’s evidence in the Magistrates’ proceeding had no weight and was insufficient to displace the evidence of the ss 83 and 83A certificates.46
Petrov is distinguishable from the present matter as Magistrate Martin did more than simply indicate the basis of his decision. The matter before Magistrate Martin was a single-issue case. That is, was Mr Agar speeding? Magistrate Martin made a ruling in respect to ss 83 and 83A certificates and then set out in some detail the summary of Mr Agar’s evidence and his evidence under cross-examination.47 Magistrate Martin noted that the certificates had been tendered and that they were evidence in the absence of evidence to the contrary. Magistrate Martin considered Mr Agar’s evidence and it was not submitted that Magistrate Martin overlooked or missed some aspect of Mr Agar’s evidence.
Ultimately, Magistrate Martin had before him Mr Agar’s subjective account of what occurred at the time of the camera recording and he considered that Mr Agar had a genuine belief in the evidence he gave. However Magistrate Martin found that Mr Agar’s evidence was not sufficient to constitute ‘evidence to the contrary’. Implicitly, Magistrate Martin found that the prosecution had proved its case beyond reasonable doubt. The ss 83 and 83A certificates became proof of the matters contained within them, without more.
Magistrate Martin’s reasons enable a reviewing court to identify whether there was an error of law. In this case, I do not consider there has been an error of law.
Ibid [24].
Transcript (‘T’) 9 Lines (‘LL’) 21-31, T 10 LL 1-19.
Transcript of the Magistrates’ Court Proceedings 17.
Burden of proof
In paragraphs 35-50 of the amended affidavit, sworn 16 July 2015, Mr Agar makes submissions regarding the burden and standard of proof in matters related to road safety cameras. In summary, he submits that:
(a) there was clear evidence to the contrary as to whether the speed camera was operating correctly and the ss 83 and 83A certificates could not be accepted as proof of testing;
(b) the prosecution did not provide any evidence to support the facts alleged in the two certificates, despite Mr Agar raising questions at the time of their submission as to the factual basis of the statements made in the certificates;
(c) the prosecution did not call any witnesses to support the statements made in the certificates tendered;
(d) the prosecution did not prove its case beyond reasonable doubt;
(e) the Magistrate should have held that the obligation of proof beyond reasonable doubt was the burden of the informant; and
(f) there was an obligation on the prosecution to provide proof of facts alleged to the court.
Mr Agar’s submissions are misconceived in that the s 83A certificate taken together with the effect of s 81 and in the absence of evidence to the contrary, is proof that Mr Agar’s vehicle was travelling in excess of the prescribed speed limit. In this case, Magistrate Martin determined that the evidence was not evidence to the contrary, for the purposes of ss 81 and 83A of the RSA. Magistrate Martin concluded that Mr Agar’s evidence was not of sufficient weight and was not ‘evidence to the contrary’. As such, the charge is proved on the basis of the s 83A certificate. As discussed, even in the circumstances of this case, where the learned Magistrate was satisfied that the evidence may have been of some weight, it does not follow that the court cannot find
the charge proved beyond reasonable doubt on the basis of the s 83A certificate.48
Magistrate Martin in this case appropriately weighed the evidence advanced by Mr Agar against the evidentiary weight to be attached to the s 83A certificate and concluded that it was not evidence to the contrary.
There is no suggestion in the transcript of the Magistrates’ Court hearing that the prosecutor or Magistrate Martin misunderstood the burden of proof or standard of proof. The certificates were tendered and it was not incumbent upon the prosecutor, as there was not a call for witnesses for cross-examination, to do anything more. Once the certificates were admitted into evidence, they were evidence of the matters contained in them and could be used to prove the offence.
At no stage during the proceedings before Magistrate Martin was it suggested that the criminal burden had shifted. The plaintiff had an evidentiary burden that he was unable to discharge.
I do not consider that there has been an error of law.
Conclusion
Proposed order
For the reasons set out above, the application for review will be dismissed. I will hear from the parties on the question of costs.
Agar v Petrov [2015] VSC 168 [33].
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