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 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; and
5.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.
Rule 22(2) provides:
A speed-limited area is the network of roads in an area with:
(a)An area speed-limit sign on each road into the area, indicating the same number; and
(b)An end area speed-limit sign on each road out of the area.
The Australian Road Rule Dictionary forms part of the ARR. It defines “built-up area” to mean:
“…an area in which there are buildings on land next to the road, or there is street lighting, at intervals not over 100 metres for a distance of at least 500 metres or, if the road is shorter than 500 metres, for the whole road.”
The Appeal
The appellant submits that, at trial, the prosecution did not prove its case beyond reasonable doubt as it did not adduce any evidence of the following matters:
1.a speed-limit sign did not apply to the relevant length of road; and
2.the length of road was not in a speed-limited area.
Alternatively, the appellant submits that magistrate erred in his finding that the default speed-limit is 50 kms per hour on the relevant stretch of road. He contended that the absence of a speed sign does not always mean that the default speed-limit applies. He submitted the relevant stretch of road is a “traffic route”. He had turned onto South Terrace from a road that was signed as being a 60km per hour (Bridge Road) area. South Terrace then continued into a 60 km per hour area (Main North Road). Accordingly, he submitted that South Terrace was subject to a speed-limit of 60 kms per hour.
The respondent submits that a speed-limit sign did not apply to South Terrace. Neither was it a speed-limited area or a shared zone. While there was a school zone further along South Terrace, a school zone did not exist at the point where the speed detection occurred. Accordingly, a default speed-limit applied.
The respondent submitted that the default speed-limit applying is 50 kms per hour as South Terrace is in a built-up area.
At trial, the appellant contended that the traffic travelling in a westerly direction along South Terrace was not in a built-up area as there were neither buildings nor street lighting on the southern side of South Terrace. By way of contrast, the appellant submitted that the traffic travelling in an easterly direction along South Terrace was in a built-up area. In any event, the appellant accepted that traffic travelling in an easterly direction on South Terrace was subject to a 50 kms per hour speed-limit. On appeal, however, the appellant did not pursue the argument that traffic travelling in an westerly direction was not in a built-up area as that question did not arise because he contended that South Terrace was a speed-limited road being subject to a 60 kms per hour speed-limit as it was the traffic route between Main North Road and Bridge / Briens Road.
Did Rule 25 apply?
Mr Mancini, counsel for the appellant, submitted that to establish that the default speed-limit of 50 kms per hour applied to that part of South Terrace on which the appellant was detected driving at 59 kms per hour, it had to prove two facts. First, that a speed-limit sign did not apply to that length of road. Secondly, that that length of road was not a speed-limited area. He submitted that the prosecution failed to prove these matters, and the learned magistrate had not found those matters proved.
The respondent submitted that these matters had been proved by documentary evidence in the prosecution case and by the evidence taken on the view in the course of the appellant’s case. Further, Mr Micklethwaite, counsel for the respondent, submitted that it was implicit in the learned magistrate’s ex tempore reasons that he accepted that the police had proved both these matters. The learned magistrate said:
Taking into consideration the evidence Mr Dinovitser [sic] I am of the view and I reiterate that the offence for which Mr Dinovitser is charged relates to driving on a road in South Australia where there is a built-up area and in the absence of road signage to the contrary, the default speed-limit applies, pursuant to the Australian Road Rules.
At trial, a traffic safety camera operator statement was admitted into evidence. This is a form which is completed by the traffic safety camera operator. The tendered form referred to the safety camera that was operating on this occasion. The form indicates that the camera location was South Terrace, Pooraka, near Mercedes Court, on the northern side of the road. It records the road consists of two lanes travelling in opposite directions; one north-west, the other south-east. In respect of each lane of traffic there are three boxes from which the operator must select to describe the basis upon which the speed-limit is regulated at that location. The operator had to choose from a box marked either “SS”, “SLA”, or “Default”. In respect of the traffic travelling in a north-west direction, the operator had ticked the “Default” box. In relation to traffic travelling in the opposite direction, the operator had ticked the “SS” box. The form contains a key for its interpretation. This provides as follows:
“SS” – speed signed rule 21 (where a speed-limit sign applied).
“SLA” – speed-limited area rule 22 (where an area speed-limit applies).
“D” – Default speed rule 25 (where there are no speed signs).
I note there is an inconsistency in that the box the operator ticked is marked “Default” not “D”. Nonetheless, it is clear that the box “Default” is intended and must be understood as referring to the default speed prescribed by rule 25 where no speed signs apply.
The document was admitted without challenge.
In addition, on the view the learned magistrate observed the absence of any speed-limit sign at the eastern end of South Terrace for traffic travelling in a westerly direction.
In the circumstances, I am satisfied that the prosecution proved that a speed-limit sign did not apply to the relevant length of South Terrace where the appellant’s vehicle was detected travelling at 59 kms per hour, and that length of road was not in a speed-limited area.
In any event, I consider that the allegation in the complaint and summons that a speed-limit sign did not apply and that the road was not in a speed-limited area, was sufficient evidence, in the absence of proof to the contrary, of the facts in issue, pursuant to s 175 of the Act.[1] Section 175 provides, inter alia:
(1)In proceedings for an offence against this Act, an allegation and a complaint that -
(a) A specified place was a road or road related area, or a specified kind or portion of road or road related area; …
…
is proof of the matters so alleged in the absence of proof to the contrary.
[1] Tsakonakos v Police [2007] SASC 149.
In circumstances where the evidence had been admitted with the appellant’s consent, without contradiction or challenge, it was not necessary for the learned magistrate to explicitly set out every factual finding upon which he concluded that the default speed-limit applied. I accept that it is implicit in the learned magistrate’s reasons that he accepted these facts proved.
Did a 60 kms per hour limit apply?
I turn to consider the alternative submission. The appellant contended that the interpretation of the ARR is informed by the terms of the Australian Standard AS 1742.4-2008, being the Manual of Uniform Traffic Control Devices, Part 4: Speed Controls (the Standard).
Clause 2.1.1 provides, inter alia, that:
Speed-limits should be set to maintain a balance between a driver’s reasonable understanding of the reasons for setting them at a particular level, and an acceptable level of environmental amenity for all road users and abutting land use.
Speed-limits should be set so as to encourage, as far as practicable, a uniform speed of travel and hence reduce the potential for conflicts due to speed differentials between vehicles.
Clause 2.1.2(a) provides:
The following principles shall be observed when determining speed-limits: except in the case of speed-limit buffers, speed-limits shall be capable of being practically and equitably enforced by use of speed zones of adequate length, by limiting speed-limit changes, and by clarity and frequency of sign posting.
Further, the Standard defined a “traffic route” as “a road or street that serves primarily to enable travel between localities, typically, arterial, sub-arterial and major collector roads”.
The appellant referred to Table 2.1 of the Standard which set out an “hierarchy of speed-limits”. This provided that the speed-limit for a local road was 50 kms per hour. The table described such roads as “residential, commercial and other property accessed roads that are not primarily traffic routes.” It prescribed a speed-limit of 60 kms per hour for a traffic route for an urban arterial road.
The appellant submits that the Standard informs the construction of ARR. Accordingly, notwithstanding the absence of a speed-limit sign on South Terrace, as it is a traffic route between two arterial roads, both of which are subject to a speed sign limit of 60 kms per hour, South Terrace is also subject to such a speed-limit.
I reject this submission.
The ARR are not to be construed by reference to the Standard or any other extrinsic materials. The Standard is not incorporated into the Act, the regulations made under the Act, or the ARR. The position under the Act and the regulations is to be contrasted with the position under legislation such as the Occupational Health, Safety and Welfare Act 1986 (SA) where the regulations made under that Act frequently incorporate relevant Australian standards. The interpretation of the Act and the ARR begins with a consideration of their text. While historically courts referred to extrinsic materials only where the text was ambiguous, the modern approach to statutory construction permits recourse to extrinsic materials to identify the mischief or purpose to which the enactment was directed, so as to identify the context in which the legislation was enacted,[2] I do not consider it appropriate to refer to the Standard for that purpose.
[2] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 521 – 522.
The Standard is, as the objective in Clause 1.2 specifies, “to provide road authorities throughout Australia with a set of uniform requirements and guidelines for the regulatory management of traffic speeds”. The Standard is for use by road authorities, not road users. By its terms, it recognises that speed-limits are fixed by a statute or regulation, not by the terms of the Standard.[3] The Standard is not material to which the Court can refer to identify the purpose of the ARR. The prescription of speed-limits is found in the Act and the ARR. Speed-limits are not fixed by the Standard, nor is the construction of the Act and the ARR informed by a consideration of the Standard.
[3] See Clause 2.2.1.
The scheme of the Act includes the regulation of traffic movement, flows and conditions, the use of roads, and aspects of driver conduct, by the making of rules by the Governor pursuant to s 80. These are the ARR.
The ARR addresses speed-limits in Part 3. It prescribes a regime by which the speed-limit applying to a driver for a length of road can be regulated by a speed-limit sign or an area speed-limit sign. A speed-limited area is a network of roads in an area marked by area speed-limit signs on each road into the area. That speed-limit will apply until the driver comes to a different speed-limit sign, an end speed-limit sign, or the end of the road. Alternatively, the speed-limit for a length of road in a speed-limited area can be regulated by another speed-limit for the length of road under another rule. To this end, the ARR further provides for the regulation of speed-limits in school zones and shared zones which are indicated by a school zone sign or a shared zone sign. However, where 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 ARR provides for a default speed-limit. This speed-limit is prescribed in rule 25.
In any event, there are two further difficulties with the appellant’s argument. First, the suggestion that a road to which a speed-limit sign did not apply is governed by the speed-limit applicable to the road with which it intersects, would contradict the concept of a speed-limited area, and leave little room for the operation of a default speed-limit. Secondly, the terms of rule 25 are clear and unambiguous, and leave no scope for recourse to extrinsic material for the interpretation of its provisions.
In my view, the appellant’s contention cannot be accepted. Once he turned from Briens Road onto South Terrace, the speed-limit applicable to South Terrace was to be fixed by reference to a speed-limit sign on South Terrace, or where no speed-limit sign applied to South Terrace, and that length of road on which the appellant was travelling was not a speed-limited area, school zone or shared zone, the applicable speed-limit was the default speed-limit.
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.