Director of Public Prosecutions v Meade

[2011] VSC 358

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEWS AND APPEALS LIST

No. SCI 2010 06582
SCI 2010 06584

IN THE MATTER of two appeals on a question of law pursuant to s 272 of the Criminal Procedure Act 2009

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of BRIAN QUINN)	Appellant
and
MICHAEL MEADE	Respondent

DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of ANDREW KEITH BRUCE)	Appellant
and
SHABBIR SIRAJUDDIN	Respondent

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JUDGE:	CURTAIN J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June 2011
DATE OF JUDGMENT:	23 June 2011
CASE MAY BE CITED AS:	DPP v Meade & Anor
MEDIUM NEUTRAL CITATION:	[2011] VSC 358

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr McArdle QC	Office of Public Prosecutions
For the Respondent Meade	In person
For the Respondent Sirajuddin	No appearance

HER HONOUR:

1. These are two appeals on a question of law pursuant to s 272 of the Criminal Procedure Act 2009. The appeals arise from decisions of the learned Magistrate, Ms Cure, sitting at the Dandenong Magistrates’ Court, wherein she dismissed charges of speeding in respect of both respondents and, in respect of Mr Michael Meade, ordered the Chief Commissioner to pay his costs fixed at $3,000.

1. Mr McArdle QC, who appeared on behalf of the Director of Public Prosecutions representing the informants, submitted that it was convenient to deal with the appeals together;  they raise the same issue.  Mr Meade appeared in person, but declined to make any submissions.  There was no appearance by or on behalf of Mr Sirajuddin.

1. The question of law to be answered in each appeal is posed as follows:

“Is the prosecution required to prove that a person is authorised by the Chief Commissioner of Police to issue a certificate under s 83A of the Road Safety Act 1986 before the certificate can be relied upon in proceedings in proof of a charge under Road Rule 20 of the Road Rules – Victoria”[1] [2]

[1]The “Road Rules – Victoria” were incorporated into Victorian law by the Road Safety (Road Rules) Regulations 1999 and commenced operation on 1 December 1999.

[2]The Regulation currently in place is the Road Safety Road Rules 2009 (No. 94) and it came into effect on 9 November 2009.

1. I will deal principally with the facts and submissions made in respect of Mr Meade’s case. At 9.09pm on 19 June 2009, on the Eastlink Freeway at Rowville, a speed measuring device detected the respondent’s motor vehicle travelling at 153 kilometres per hour, which was in excess of the speed limit of 100 kilometres per hour. An infringement notice was issued and on receipt of a notice of objection, that notice was rescinded and a charge and summons subsequently issued. On 6 October 2010, the matter came before the learned Magistrate at the Dandenong Magistrates’ Court and the respondent was represented by counsel, Mr L. Simpson. On that occasion, the informant tendered the certificate pursuant to s 84 of the Road Safety Act 1986 certifying the respondent’s ownership of motor vehicle ULB 604 and a certificate pursuant to s 83A of the Road Safety Act 1986, which incorporated two photographs of motor vehicle ULB 604 at the time of the detection and the detected speed. That certificate, signed by Kevin Bolton, also certified in the following terms:

“I, Kevin Bolton, am the person who caused the printed images and messages produced in paragraph (c) to be printed and I certify that to the best of my knowledge and belief the matters set out in this certificate are true and correct and I am a person authorised by the Chief Commissioner of Police for the purposes of s 83A of the Road Safety Act 1986 to issue the certificate under s 83A(1) of the Road Safety Act 1986, sub-section (2).”

1. Such evidence as was constituted by the production of both certificates was the entirety of the informant’s case. Counsel for the respondent tendered written submissions concerning the adequacy of the s 83A certificate; in particular, that the certificate did not identify the detection device by serial number and that the prosecution was required to prove as a separate matter that Kevin Bolton was in fact authorised by the Chief Commissioner, Mr Simpson submitting that s 83A was not an evidentiary provision in respect of that aspect of the certificate. The matter was adjourned to allow the informant to make reply, and subsequently both parties submitted written submissions when the matter came back on for hearing on 10 November 2010. On that day, the learned Magistrate did not uphold the submission that the detection device should have been identified by serial number in the certificate, but did uphold the submission in respect of Mr Bolton’s authority to certify, ruling that a person cannot certify his own authority.[3] In coming to that decision, the learned Magistrate had regard to the matters which the authorised person can certify as described in sub-ss (a), (b) and (c) of s 83A and had particular regard to sub-s (c) and held that the wording therein was not sufficiently wide enough to encompass Mr Bolton’s authorisation[4] and therefore came to the view that the prosecution must prove authority to certify independently of the provisions in s 83A.

   [3]Page 10 of the ruling.

   [4]Page 10 of the ruling.

1. Section 83A of the Road Safety Act, as it then was,[5] provided as follows:

   [5]Road Safety Act 1986 as amended by the Justice Legislation Further Amendment Act 2009 (No.55 of 2009) and the Road Legislation Amendment Act 2009 (No. 28 of 2009).

“(1) A certificate containing the prescribed information purporting to be issued by an authorised person certifying-

(a)  that a prescribed detection device for the purposes of section 66 was tested, sealed or used in the prescribed manner; or

(b)  that an image or message described in the certificate was produced by a detection device prescribed for the purpose of section 66 or by prescribed process; or

(c)  as to any other matter that appears in, or that can be determined from, the records kept in relation to the detection device or the prescribed process by the police force of Victoria-

is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate.

(2) In this section authorised person means a person authorised for the purposes of this section by the Chief Commissioner of Police.”

1. Mr McArdle QC submitted that it could be argued that Mr Bolton’s certification came within the provisions of s 83A(1)(c), but the better view was to consider that the answer to the question was dictated by the use of the word “purporting” in sub-s (1).

1. Section 83A(1) speaks in clear and unambiguous terms of a certificate in the prescribed form purporting to be issued by an authorised person, and s 83A(2) clearly defines an authorised person for the purposes of this section as a person authorised by the Chief Commissioner of Police. The word “purport” is defined in the Macquarie Dictionary, 5^th Edition, as “to profess or claim”, and in the Shorter Oxford English Dictionary, 3^rd Edition, as “to mean, imply or to profess or claim by its tenor”. Thus, given the plain meaning of the word “purporting”, when read in combination with s 83A(2), it is clear that the section does not contemplate actual proof of authorisation before the certificate is admissible as proof of the matters contained therein.

1. Section 83A of the Road Safety Act 1986 forms part of the owner onus provisions of the Act[6] and, as such, one of the purposes of the section is to streamline the prosecution of speeding offences; reliance upon the certificate obviating the need to call witnesses in every case.[7]  To adopt the learned Magistrate’s approach would clearly frustrate and contradict the legislative purpose.[8] The section does not require the authorisation of the person issuing the certificate to be established independently, that is, as a pre-condition to the admissibility of the certificate. To do so would be to deny the meaning of the word “purporting”. The section does not require the person to be actually authorised, only purporting to be so, but read in conjunction with s 83A(2) effects no injustice. The section provides that in the absence of evidence to the contrary, the certificate is evidence of the matters contained therein. It would still be possible to call evidence challenging matters in the certificate and the authorisation of the person certifying, but that is quite distinct from the prosecution having to prove the authorisation of the person certifying in order to prove the offence. It follows, by reason of the above, that the answer to the question posed on the appeal is no.

   [6]Sections 81 to 84 of the Road Safety Act 1986.

   [7]Road Safety (Further Amendment) Bill 2001, Second Reading Speech 20 November 2001, Hansard pages 1749 – 1763.

   [8]DPP v Juchnowski (2008) 185 A Crim R 66.

1. Although the issue was not litigated in Mr Sirajuddin’s case, the Magistrate dismissed the charge against him consistently with her ruling given previously in Mr Meade’s matter.

1. Accordingly, for the above reasons, I propose the following orders:

(1)       That the appeals are allowed.

(2)       That the orders of Magistrate Cure made on 10 November 2010 at the Dandenong Magistrates’ Court in respect of each of the respondents is set aside.

(3)       That both matters are remitted to the Magistrates’ Court for hearing and determination according to law.

1. As to the issue of costs, pursuant to s 408 of the Criminal Procedure Act 2009, it is a matter of the Court’s discretion. The issue is an important one of general application with relevance beyond the individual cases. Mr Meade took no issue with any of the matters raised on appeal and the order that the Chief Commissioner pay his costs had been stayed. In these circumstances, I propose to make no order as to costs.