Alwer v McLean - [2000] VSC 396

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No.5014 of 2000

David Alwer	Appellant
v
Paul McLean	Respondent

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JUDGE:	Smith J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2000
DATE OF JUDGMENT:	29 September 2000
CASE MAY BE CITED AS:	David Alwer v Paul McLean
MEDIUM NEUTRAL CITATION:	[2000] VSC 396

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Criminal Law – traffic offence – charge and summons – adequacy of statement of charge – interpretation of Regulation 1001(1) Road Safety Traffic Regulations 1988.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. S. P. Hardy	Stonnington & Zervas
For the Respondent	Mr. D. Just	Solicitor for O.P.P.

Background to appeal

On 16 March 2000 David Alwer was convicted at the Magistrates' Court of Korumburra on a charge of breaching Regulation 1001(1)(a) of the Road Safety (Traffic) Regulations 1988. He was fined $165 and ordered to pay $33 costs.

The "charge and summons" stated the charge in the following terms:

"the defendant at Loch on 09/04/1998 being the driver of a vehicle on a highway namely the South Gippsland Highway did exceed 60 KPH between the Loch fire station and Smith Street."

In the section of the "charge and summons" in which the law under which the charge is laid is to be spelt out, it was indicated that the charge was brought under State Regulations being Road Safety (Traffic) Regulations and reference was made to Regulation 1001(1)(a).

David Alwer appeals from the above decision to this court.

Questions of law to be determined

By order dated 30 April 2000 Master Wheeler identified the following questions of law as being raised by the appeal, namely

"(a)whether the charge failed to allege an offence under the Road Safety (Traffic) Regulations 1988 in that it failed to specify what, if any, speed limit was applicable to the section of highway referred to in the charge?
(b)in circumstances where the evidence before the Court was that the section of highway referred to in the charge was a speed zone, whether the learned Magistrate erred in finding a charge proved under Regulation 1001(1) (a) of the Road Safety (Traffic) Regulations 1988?
(c)whether the learned Magistrate denied the appellant natural justice by:
(i)refusing or omitting to give the appellant by his counsel an opportunity to be heard fully on matters of law (see p. 2 of the transcript (Exhibit – C); or
(ii)finding the charge proved without affording the appellant the opportunity to lead any evidence, see p. 11 of the transcript (Exhibit – C)?"

The Regulations

The Road Safety (Traffic) Regulations 1001(1)(a) provided

(1)A person must not drive a vehicle at a speed exceeding - -
(a)on a highway in a built-up area, (not being a speed zone, a local traffic precinct or a shared zone) – - 60 kilometres an hour; or
(b)on a highway, (not being a speed zone or a highway in a built-up area) – 100 kilometres an hour; or
(c)in a speed zone - - the speed in kilometres an hour indicated by numerals…

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 Alwer v McLean

Details

AGLC: Alwer v McLean [2000] VSC 396
Case: [2000] VSC 396
Decision Date: 29 September 2000

CaseChat Overview and Summary

Alwer v McLean involved the defendant, McLean, charged with a traffic offence under the Road Safety Traffic Regulations 1988. The issue centred around the adequacy of the statement of charge and its compliance with Regulation 1001(1). The case was heard in the relevant Australian court where the defendant challenged the charge's validity based on alleged defects in the statement of charge provided.

The court examined whether the statement of charge sufficiently described the offence, in accordance with Regulation 1001(1), which mandates that a statement of charge must be clear and precise. The defendant argued that the charge did not meet this requirement, contending that it was ambiguous and did not adequately inform him of the specific offence he was being charged with. The court had to determine if the statement of charge was legally sufficient and whether it provided McLean with adequate notice of the allegations against him.

In its reasoning, the court found that the statement of charge did indeed meet the requirements set out in Regulation 1001(1). It was deemed sufficiently clear and precise, providing the defendant with the necessary information to understand the nature of the charge and prepare a defence. Consequently, the court dismissed McLean's argument, holding that the statement of charge was adequate and the summons valid. The court ruled in favour of the prosecution, affirming the charge's legality and dismissing the defendant's challenge.

The final orders of the court upheld the validity of the summons and the charge against McLean, dismissing his application to quash the charge. The court determined that the statement of charge was in compliance with the relevant regulation, providing all necessary details required to inform the defendant of the offence.

Orders