Ali v Allan
[2018] VSC 515
•3 September 2018 (revised)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 00906
| BILAL ALI | Plaintiff |
| v | |
| PATRICK ALLAN (VICTORIA POLICE) | First Defendant |
| COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 September 2018 |
DATE OF JUDGMENT: | 3 September 2018 (revised) |
CASE MAY BE CITED AS: | Ali v Allan |
MEDIUM NEUTRAL CITATION: | [2018] VSC 515 |
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JUDICIAL REVIEW— Motor vehicle speeding offence — Magistrates’ Court — Charge proved — Appeal to County Court — Whether insufficient evidence to prove charge — Whether fair hearing —No jurisdictional error or error of law on the face of the record established — Road Safety Act 1986 s 83 — Road Safety (General Regulations) 2009 reg 52 — Road Safety Rules 2009 r 20.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Self-represented | - |
| For the Defendant | Ms A Roodenburg | Office of Public Prosecutions |
HIS HONOUR:
This is a judicial review proceeding brought by Mr Bilal Ali against Leading Senior Constable Allan and the second defendant, the County Court of Victoria, which, of course, made a Hardiman appearance.
The proceeding seeks judicial review of orders made by the County Court on 9 March this year, when hearing an appeal from orders of the Magistrates' Court at Bendigo. The orders concerned a charge against the plaintiff for exceeding the speed-limit applying to the driver for the length of road where the driver is driving by 45 kilometres per hour or more, at Ravenswood on the Calder Highway on 12 December 2016.
The County Court orders in issue were to set aside the Magistrates' Court orders and, in lieu thereof, order that Mr Ali without conviction pay a fine in the sum of $500, the payment of which was stayed until 8 May 2018, and that all Victorian licences and/or permits held by Mr Ali be suspended for a period of 12 months from 9 March 2018. That suspension was to take effect at 6.00 pm that day.
Mr Ali gave evidence in the County Court. He also outlined his arguments this morning quite clearly and I understand his case.
The first point of Mr Ali’s case is that there was not sufficiently strong evidence before the Magistrates' Court or the County Court to establish, as alleged by the police officer, that Mr Ali had been driving at the speed of 137 kilometres an hour.
The police officer was using a speed detector called a Stalker Dual DSR mobile radar. A certificate was produced at the County Court hearing under s 83 of the Road Safety Act 1986 that the radar had been tested in accordance with reg 52 of the Road Safety (General Regulations) 2009 on 16 September 2016.
Mr Ali's case, as I have said, was that there was not sufficiently strong evidence to prove the charge. The police officer's evidence at the County Court was that he had been detecting speed in the relevant section of the Calder Highway on 12 December 2016, that he initially estimated that the plaintiff's car was travelling in excess of 130 kilometres an hour, that the Stalker device recorded a reading of 137 kilometres an hour, and that there were speed signs erected on the relevant section of the Calder Highway indicating a new speed limit of 80 kilometres an hour. The defendant stated that, when questioned about his speed, the plaintiff stated that ‘it’s a new car’.
The plaintiff cross-examined Leading Senior Constable Allan, the police officer, about the accuracy of the device and, particularly, relied on the answers he received where Leading Senior Constable Allan mentioned the words ‘very rare’ in answer to a question by Mr Ali about the accuracy of the device. Mr Allan said, ‘They’re very robust pieces of equipment, and it's very rare – well, no, I don't know of any faults with that one’.
Mr Ali then asked, ‘Are you saying very rare? How can I know that I was not involved in this “very rare”? Like because it's not 100 per cent if you're saying “very rare”. So how can I know that I'm not belonging to “this rare".’
Leading Senior Constable Allan replied, ‘As I said, at the start of – at the commencement of the shift I did all the checks that it was possible for me to do, the device was working at the start of the shift. If it doesn't work - it doesn't give a false reading - it just doesn't work. It's either working, or you get an error message. Very - I could count the fingers on one hand in my 15 years the times I've seen an error message, and if that happens, it doesn't work at all’. Then, in answer to a question from the Judge: ‘So you wouldn't get a reading? Mr Allan replied ‘No, that's correct’.
As previously mentioned, Mr Ali’s proceeding seeks judicial review of the County Court orders. In order to grant judicial review remedies, I would have to be satisfied either that the County Court Judge made a significant legal error that affected the decision, being a jurisdictional error or an error of law on the face of the record, or that Mr Ali did not receive a fair hearing.
Mr Ali's submissions included that he did not receive proper support at the hearing, and that he did not, as a self-represented litigant, receive a fair hearing. He referred to the fact that at least two police officers were present in court sitting behind him, and that this seemed inappropriate to him in light of the fact that he was not charged with any serious criminal offence. He submitted that this affected his ability to put his case.
Secondly, as I have already mentioned, Mr Ali submitted that there was no strong evidence presented to the County Court Judge to prove that he did exceed the speed limit. Mr Ali submitted that, once the police officer admitted that the devices could on occasion, although very rarely, be wrong, then the charges should have been dismissed.
Mr Ali also referred to his assessment of the manner in which the proceedings were conducted, where it seemed to him that his issues and his questions were not taken seriously or given appropriate weight. He also referred to the fact that his past record, as well as other aspects of his character and personal circumstances, made it highly unlikely that he would have exceeded the speed limit by more than 45 kilometres an hour.
He also referred to various events that he said occurred on the day of the hearing of his appeal in the County Court, including receiving advice that he would have to plead guilty and suggestions from police officers that he was wasting his time. He has also informed me of his family history. It seemed most creditable including the fact that his family respect the police and have served, themselves, in positions of some authority.
The County Court Judge’s reasons were the following: ‘I've heard the evidence in this case. I accept the evidence of Mr Allan and I accept that the machinery – and that's the way I'm referring to it - but it's a speed detector Stalker Dual DSR – was operating correctly on this day and was operated correctly by Mr Allan and on the day in question, 12 December 2016 at approximately 2.00 pm, that Mr Allan has detected the speed of your car, Mr Ali, at 137 kilometres per hour as travelling north towards Bendigo and I find that on the standard of beyond reasonable doubt.’
The Judge then said, ‘And just so it's clear to you, I've found the charge of exceeding the speed limit proven and I've found the actual speed being at 137 kilometres per hour. They're my findings. What do you want to say?’ The Judge then went on to consider what fine and suspension should be imposed.
When there is conflicting evidence, as very often happens in a court hearing, a Judge must decide which evidence he or she accepts. In this case the Judge accepted the evidence of the police officer. I do not think it can be said that the fact that the police officer conceded that there might be very rare cases where the device would not work properly meant that the Judge could not accept his evidence. In addition, the police officer’s evidence also was that on such occasions the device would display an error message rather than a reading.
So, as often occurs, the case involved conflicting evidence from the driver, in this case Mr Ali, and evidence from the police officer of the reading on his speed detection device. The Judge preferred the evidence of the police officer, and once he did so, there was sufficient evidence to prove the charge beyond reasonable doubt. I cannot see any error entitling this Court to grant judicial review remedies.
I should say that speed offences are normally ones that do not require any proof that the driver intended to breach the speed limit. In most instances they are what is called strict liability offences. Obviously, there are drivers on the road who do not care about the speed limits, who drive recklessly and without regard to the speed limits. It is not suggested that Mr Ali fell into that category. It is common experience that drivers will often breach the speed limits because they have missed a speed sign, or because the speed limits change over a short distance. But it is remains an offence under law to exceed the speed limit.
As I have mentioned, Mr Ali’s other major submission is that he did not feel that he received a fair hearing. He did not think that his propositions or questions were given sufficient weight.
In his originating motion he states among other things, ‘The Judge at the County Court in Bendigo did not consider any of my explanations and decided not to take any information from me’ and that ‘also, I did not know which questions I was allowed to ask the informant at the County Court.’
He also submits that he did not get a fair hearing, and raised grounds of bias. He says that the Judge seemed to agree with everything that was said by the police officer, and that that left him in shock and with a feeling of discrimination. He has also mentioned the presence of the police officers in the County Court proceedings. I asked Mr Ali whether there was any matter that he could think of that he did not raise with the Judge, any matter that he forgot to raise or did not think he could raise because of the presence of the police officers. I am not satisfied that there were any such matters.
After reading the transcript, I am not satisfied that Mr Ali did not receive a fair hearing. The Judge had to decide which evidence to accept, after he had asked a number of questions, some of which might have assisted Mr Ali's case, but he ultimately accepted the police officer's evidence. I am not satisfied that there was any unfair hearing.
As often occurs in speeding cases, the Court gave greater weight to the evidence of the police officer who was using a speed detection device.
Accordingly, I am not satisfied that Mr Ali has established any judicially reviewable error by the County Court Judge.
Therefore, the proceeding must be dismissed. The order is that the proceeding is dismissed.
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