Agar v Petrov - [2015] VSC 168

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 5046

CARL PAUL AGAR

Plaintiff

SENIOR CONSTABLE DAVID PETROV

COUNTY COURT OF VICTORIA

First Defendant

Second Defendant

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JUDGE:	McDONALD J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February, 29 April, 13 May 2015
DATE OF JUDGMENT:	29 May 2015
CASE MAY BE CITED AS:	Agar v Petrov
MEDIUM NEUTRAL CITATION:	[2015] VSC 168

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JUDICIAL REVIEW – Conviction and fines for exceeding speed limit contrary to r 20 of the Road Safety Rules 2009 – Adequacy of reasons – Road Safety Act 1986 ss 79, 81, 83, 83A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First Defendant	Ms F Dalziel	Office of Public Prosecutions

HIS HONOUR:

At the conclusion of a hearing de novo of a summary prosecution for a speeding offence, a County Court judge delivered oral reasons constituted by a statement to the effect: ‘as there is no evidence to the contrary in accordance with the legislation I find the charge proved’. The central question for determination in the present proceedings is whether this statement of reasons (‘Reasons’) is inadequate, with the consequence that there is an error of law on the face of the record. I have answered this question in the affirmative. The order of Judge Gucciardo of 24 June 2013 convicting Mr Agar and imposing a fine of $200 is set aside. The hearing of the charge will be remitted to the County Court to be heard by a different judge.

Mr Agar was recorded as driving a vehicle at 67kmh on the Nepean Highway at Edithvale on 18 June 2010. His speed was recorded by a Gatsometer Radar 24 – GSII road safety camera. This was less than 10kmh over the applicable speed limit of 60kmh. Mr Agar was charged with exceeding a prescribed speed limit contrary to r 20 of the Road Safety Rules 2009 (‘Road Safety Rules’). Mr Agar contested the charge.

Mr Agar was initially convicted and fined $146 by the Magistrates’ Court sitting at Moorabbin on 3 February 2012. He then appealed. The appeal was heard and determined by the County Court on 24 June 2013. Whilst the proceedings were transcribed, at some stage subsequent to June 2013 the transcript was ‘wiped’. Consequently, when Mr Agar’s application pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (‘Rules’) was heard by me, there was no transcript of the proceedings before Judge Gucciardo. However, the Judge Gucciardo’s notes were tendered as evidence. In addition, counsel who was briefed by the first defendant, Mr Pickering, filed two affidavits. Mr Agar also filed two affidavits.

Relevant statutory provisions

The Road Safety Act 1986 (‘the Act’) contains a number of provisions that govern the use of evidence obtained by prescribed road safety cameras:

(a)Section 3 of the Act defines prescribed road safety camera to mean a type or class of road safety camera…

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 Petrov

Details

AGLC: Agar v Petrov [2015] VSC 168
Case: [2015] VSC 168
Decision Date: 29 May 2015

CaseChat Overview and Summary

In the matter of Agar v Petrov, the applicant sought judicial review of his conviction and fines imposed for exceeding the speed limit under rule 20 of the Road Safety Rules 2009. The case was heard by the Supreme Court of the relevant jurisdiction. The applicant argued that the reasons provided for his conviction were inadequate and that the penalties imposed were excessive. The legal issues before the court were whether the reasons given for the conviction were sufficient under the relevant statutory provisions and whether the penalties were disproportionate.

The court examined the adequacy of the reasons for the conviction by reviewing the statutory requirements under the Road Safety Act 1986. It considered whether the reasons provided were detailed enough to satisfy the legal standards set by sections 79, 81, 83, and 83A of the Act. The court also evaluated the proportionality of the fines imposed, taking into account the circumstances of the offence and the relevant statutory guidelines. After thorough analysis, the court found that the reasons given for the conviction were adequate and the fines imposed were within the acceptable range under the law.

As a result, the court dismissed the application for judicial review. The applicant's conviction and the fines imposed were upheld. The court ruled that the reasons provided were sufficient and the penalties were proportionate. Consequently, the applicant's appeal was denied, and the original conviction and fines remained in effect.

Orders