Dinovitser v Police - [2013] SASC 9

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DINOVITSER v POLICE
[2013] SASC 9
Judgment of The Honourable Justice Stanley
4 February 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS
Appeal against conviction from the Magistrates Court - appellant detected by speed detection device driving a motor vehicle at 59 kms per hour and was convicted of contravention of s 79B(2) of the Road Traffic Act 1961 (the Act) - magistrate held that pursuant to rule 25 of the Australian Road Rules (ARR), the default speed limit of 50 kms per hour applied.
Appellant submitted that at trial the prosecution did not prove its case beyond reasonable doubt - alternatively, it is submitted that the magistrate erred in finding that the default speed limit applied, and submits that the relevant section of road is a "traffic route" - appellant relies on the Australian Standard.
Respondent submitted that a speed-limit sign did not apply and that the default speed-limit applied as the relevant road is in a built-up area.
Held: appeal dismissed - the ARR are not to be construed by reference to the Standard or any other extrinsic materials - the relevant road was in a built up area, where the default speed-limit applied.
Road Traffic Act 1961 (SA) s 79B, s 175; Australian Road Rules Rule 20, Rule 25; Occupational Health, Safety and Welfare Act 1986 (SA), referred to.
Tsakonakos v Police [2007] SASC 149; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; K-Generation Pty Ltd v Liquor Licencing Court (2009) 237 CLR 501, considered.

DINOVITSER v POLICE
[2013] SASC 9
Magistrates Appeal: Criminal
Introduction

This is an appeal against conviction.
The appellant was convicted of a contravention of s 79B(2) of the Road Traffic Act 1961 (SA) (the Act) which prohibits involvement in the commission of a prescribed offence. The prescribed offence was that he drove at a speed in excess of the speed-limit, contrary to rule 20 of the Australian Road Rules (ARR). The learned magistrate found that, pursuant to rule 25 of the ARR, the speed-limit applying to the length of road on which the appellant was driving was the default urban speed-limit. As that the length of road was in a built-up area the default speed-limit was 50 kms per hour pursuant to rule 25 of the ARR. It was common ground at trial that the appellant was detected driving on South Terrace, Pooraka, at 59 kms per hour.
The grounds of the appeal can be distilled to two issues. First, did the prosecution prove that rule 25 applied to the appellant’s driving? Secondly, was the road on which the appellant was driving, a road where a speed-limit sign of 60 kms per hour applied, or was it a road where a speed-limit sign did…

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.

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Details

Case: [2013] SASC 9
Decision Date: 4 February 2013

CaseChat Overview and Summary

In the case of Dinovitser v Police, the appellant was convicted in the Magistrates Court of exceeding the speed limit on South Terrace, Pooraka, where he was detected driving at 59 km/h. The appellant appealed to the Supreme Court, arguing that the prosecution had not proven their case beyond reasonable doubt and that the magistrate had erred in applying the default speed limit of 50 km/h. The respondent maintained that a speed-limit sign did not apply, and the default limit for built-up areas was correctly applied.

The appeal raised two central issues: whether the prosecution had proven that rule 25 of the Australian Road Rules (ARR) applied to the appellant's driving, and whether the road was a location where a speed-limit sign of 60 km/h applied or if the default urban speed-limit of 50 km/h was applicable. The appellant contended that South Terrace was not a built-up area as per the ARR, whereas the respondent argued that it was in a built-up area.

The court dismissed the appeal, holding that the ARR should not be interpreted with reference to the Australian Standard or any other external materials. The court concluded that South Terrace was indeed in a built-up area where the default speed limit of 50 km/h applied, and the magistrate's findings were correct. The appellant's conviction for exceeding the speed limit was upheld.

Orders

Orders of the court

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Background

Background to the litigation

The grounds of the appeal can be distilled to two issues. First, did the prosecution prove that rule 25 applied to the appellant’s driving? Secondly, was the road on which the appellant was driving, a road where a speed-limit sign of 60 kms per hour applied, or was it a road where a speed-limit sign did not apply and accordingly the default urban speed-limit applied?Background On 5 June 2011 at South Terrace, Pooraka, the appellant, while driving a motor vehicle, was detected by a speed detection device driving at a speed of 59 kms per hour. The appellant was driving in a westerly direction along South Terrace, having turned left into South Terrace from Briens Road. Briens Road at that intersection becomes Bridge Road. Both Briens Road and Bridge Road are roads to which a speed-limit sign of 60 kms per hour applies. South Terrace is a sub-arterial road connecting Briens/Bridge Roads to Main North Road. South Terrace terminates in a T-junction at each end. The prosecution alleged that the relevant stretch of road, namely South Terrace, is located in a built-up area to which a speed-limit sign did not apply. Pursuant to rule 25(2) of the ARR, the default speed-limit in a built-up area is 50 kms per hour. The appellant was accordingly charged with exceeding the speed-limit, contrary to rule 25(2) of the ARR. At trial, the appellant was self-represented. He had obtained some legal advice. At the commencement of trial, the magistrate provided the appellant with a bundle of documents that contained:1. Section 175 of the Road Traffic Act 1961 (SA);2. Section 79B of the Road Traffic Act;3. Rule 20 of the Australian Road Rules;4. Rule 25 of the Australian Road Rules; and5.Australian Road Rule Dictionary, in relation to the definition of a “built up area”. The appellant argued that the location at which his motor vehicle was photographed was not a “built-up area” pursuant to rule 25(2). At trial, the learned magistrate, in the course of the appellant’s case, took a view of South Terrace. The ARR The ARR form a body of road rules to be applied consistently throughout Australia. Each State has enacted substantially similar provisions. In South Australia the ARR have force and effect as rules made by the Governor pursuant to the provisions of s 80 of the Act. Rule 20 of the ARR provides:A driver must not drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving. Rule 25(2) of the ARR provides:(1) If a speed-limit sign does not apply to a length of road and the length of road is not in a speed-limited area, school zone or shared zone, the speed-limit applying to a driver for the length of road is the default speed-limit.Note—Length of road is defined in the dictionary, school zone is defined in rule 23, shared zone is defined in rule 24, and speed-limited area is defined in rule 22.(2) The default speed-limit applying to a driver for a length of road in a built-up area is 50 kilometres per hour.Note—Built-up area is defined in the dictionary.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The speed-limit on South Terrace was not fixed by the speed-limit signs applicable to Briens Road. The evidence establishes that a speed-limit sign did not apply to that length of road on which the appellant was travelling on South Terrace when he was detected travelling at 59 kms per hour. Further, the evidence establishes that there were buildings and street lighting on land along the northern boundary of South Terrace. It follows that South Terrace is a road in a built-up area. Accordingly, the default speed-limit is 50 kms per hour. The learned magistrate was correct in finding the offence proved. Conclusion I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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