Challis v Williams - [2013] VSC 490

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 1219

IN THE MATTER OF s 272 of the Criminal Procedure Act2009

and

IN THE MATTER OF the Road Safety Rules 2009

BETWEEN:

MARK CHALLIS	Appellant
- and -
AIDAN WILLIAMS	Respondent

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2013
DATE OF JUDGMENT:	29 August 2013
CASE MAY BE CITED AS:	Challis v Williams
MEDIUM NEUTRAL CITATION:	[2013] VSC 490	Revised 8 October 2013.

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MAGISTRATES’ COURT APPEAL – Conviction for breach of r 20 Road Safety Rules 2009 by exceeding speed limit by 45 kilometres per hour or more – Evidence by preliminary brief under s 84 Criminal Procedure Act 2009 – Use of laser speed detector – No evidence of testing of device within previous 12 months – Sufficiency of evidence – Concession by respondent -Appeal allowed – Conviction quashed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S Hardy	The Law Offices of Barry Fried
For the Respondent	Mr P Rose SC	Stavroula Aridas, Solicitor for Public Prosecutions

HER HONOUR:

On 21 February 2013, the appellant was convicted at the Magistrates’ Court at Ringwood of a charge of exceeding the speed limit by 45 kilometres per hour or more under r 20 of the Road Safety Road Rules2009. He was fined $500 and his driving licence was suspended for a period of 12 months from 21 February 2013.

The charge was heard at an ex parte hearing under s 80 of the Criminal Procedure Act2009. It is common ground that the preliminary brief had been served on the appellant in accordance with s 84 of the Criminal Procedure Act. The prosecution relied upon the material in the preliminary brief.

It is also common ground that the prosecution relied upon inadmissible evidence of speed determined by a laser measuring device. The prosecution would have been able to rely upon admissible evidence of speed indicated by such a device under s 79 of the Road Safety Act 1986 which provides:

79 Evidence of speed
(1) If in any criminal proceedings 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 prescribed road safety camera or prescribed speed detector when tested, sealed and used in the prescribed manner 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.

The evidence would have been admissible if there had also been proof that the device been tested and sealed in the prescribed manner under r 45 of the Road Safety (General) Regulations 2009 (‘the Regulations’), that is, within 12 months prior to its use. Regulation 45 is in these terms:

45Use of laser devices
A laser device is used…

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 Challis v Williams

Details

AGLC: Challis v Williams [2013] VSC 490
Case: [2013] VSC 490
Decision Date: 29 August 2013

CaseChat Overview and Summary

In the Magistrates' Court of Victoria, Challis was appealing against a conviction for breaching rule 20 of the Road Safety Rules 2009 by exceeding the speed limit by 45 kilometres per hour or more. The conviction was based on evidence provided by a preliminary brief under section 84 of the Criminal Procedure Act 2009, which pertained to the use of a laser speed detector. The respondent did not provide evidence that the device had been tested within the previous 12 months, raising questions about the sufficiency of the evidence. The appeal hinged on the adequacy of the evidence presented and the absence of proof regarding the calibration of the laser speed detector.

The court had to decide whether the evidence was sufficient to uphold the conviction and whether the failure to produce evidence of the device's testing within the previous 12 months rendered the evidence inadmissible. Given that the respondent conceded that the evidence was insufficient, the court had to consider whether this concession was sufficient to warrant the quashing of the conviction. The central issue was whether the failure to provide evidence of the device's calibration was fatal to the prosecution's case, and if the concession by the respondent was enough to overturn the conviction.

The court found that the evidence provided by the preliminary brief was insufficient because there was no proof that the laser speed detector had been tested within the previous 12 months. This omission was critical as it undermined the reliability of the evidence. The court noted that the absence of such evidence was a significant factor in determining the sufficiency of the evidence. Consequently, the court accepted the respondent's concession that the evidence was insufficient and quashed the conviction. The appeal was allowed, and the conviction was set aside.

The court's decision resulted in the quashing of Challis's conviction for exceeding the speed limit. The court emphasised the importance of providing evidence that the laser speed detector had been tested within the previous 12 months to ensure the reliability and admissibility of such evidence in future proceedings. The appeal was successful, and the conviction was formally overturned.

Orders