Banks v Bice - [2014] VSC 610

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 04913

IN THE MATTER of an appeal made by question of law pursuant to s 272 of the Criminal Procedure Act 2009

BETWEEN

STEPHANIE BANKS	Appellant
and
STEPHEN BICE	Respondent

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2014
DATE OF JUDGMENT:	9 December 2014
CASE MAY BE CITED AS:	Banks v Bice
MEDIUM NEUTRAL CITATION:	[2014] VSC 610

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APPEAL FROM MAGISTRATES’ COURT – Charge of exceeding speed limit – Preliminary brief served – Charge heard and determined ex parte – Failure to prove prerequisite to admissibility of speed measurement by detection device – Admission by appellant to exceeding speed limit – Whether sufficient evidence to sustain conviction – Appeal allowed – Conviction confirmed – Penalty reduced – No order for costs of appellant – Criminal Procedure Act 2009 (Vic) ss 37, 80, 84 – Road Safety Act 1986 (Vic) s 79(1) – Road Safety Road Rules 2009 (Vic) rule 20 – Road Safety (General) Regulations 2009 (Vic) reg 45.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S Hardy	The Law Offices of Barry Fried
For the Respondent	Mr B Kissane SC	The Solicitor for Public Prosecutions (Vic)

HIS HONOUR:

On 2 May 2013, the respondent filed a charge against the appellant alleging that, on 26 January 2013, the appellant drove a motor vehicle at a speed in excess of the applicable speed limit of 60 kph, in contravention of rule 20 of the Road Safety Road Rules 2009. The summons alleged a speed of 100 kph, based on a speed of 102 kph measured by a prescribed speed detector.

The charge and summons, together with a preliminary brief of evidence, were served on the appellant in accordance with s 36 of the Criminal Procedure Act 2009.

The matter was listed for hearing at the Bendigo Magistrates’ Court on 20 August 2013. At the request of the appellant, the matter was adjourned until 23 August 2013, to enable counsel to attend to represent the appellant. On 23 August, neither the appellant nor her legal representative attended the court. Accordingly, the magistrate heard and determined the matter ex parte in accordance with s 80(1)(c) of the Criminal Procedure Act. In doing so, the magistrate received in evidence the informant’s statement in the preliminary brief, and the exhibits referred to in that statement, pursuant to s 84(1) of the Criminal Procedure Act.

In his statement, the respondent (as informant) stated that on 26 January 2013, at approximately 12.00 pm, the appellant drove her vehicle south along Taylor Road, Epsom. He noted that at that point the applicable speed limit was 60 kph as defined by complying speed signs, which were erected and visible to the appellant. The respondent then stated:

The police informant Senior Constable Steve Bice saw the accused vehicle travelling at a fast rate of speed and used a…

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 Banks v Bice

Details

AGLC: Banks v Bice [2014] VSC 610
Case: [2014] VSC 610
Decision Date: 9 December 2014

CaseChat Overview and Summary

The case of Banks v Bice involved an appeal from the Magistrates’ Court of Victoria. The appellant, Banks, was convicted of exceeding the speed limit on a public road in Victoria. The matter originated from an ex parte hearing due to a failure to serve a preliminary brief. Banks was found guilty of exceeding the speed limit by 12 km/h, and the conviction was confirmed by the Magistrates’ Court. Banks appealed the conviction and the penalty imposed.

The primary legal issue for the court was whether there was sufficient evidence to sustain the conviction for exceeding the speed limit. The court had to consider whether the failure to serve a preliminary brief and the subsequent ex parte hearing impacted the admissibility of the speed measurement by the detection device. Despite Banks' admission to exceeding the speed limit, the court needed to determine whether the procedural errors were significant enough to warrant the quashing of the conviction. Additionally, the court had to assess the proportionality of the penalty imposed.

The court held that although there was a procedural error in the handling of the case, the admission by the appellant to exceeding the speed limit constituted sufficient evidence to sustain the conviction. The court concluded that the error did not affect the outcome of the case since Banks had admitted to the offence. However, the court deemed the penalty imposed to be excessive and reduced it accordingly. The appeal was allowed in part, with the conviction confirmed but the penalty reduced. The court made no order for the costs of the appellant.

This case highlights the importance of procedural compliance in criminal cases, particularly in the service of preliminary briefs. It also underscores the court's discretion to reduce penalties if deemed disproportionate, even in the face of an admission of guilt. The decision serves as a reminder that while procedural errors can be significant, they do not necessarily invalidate a conviction if the evidence of guilt is otherwise strong.

Orders