Director of Public Prosecutions v Mifsud
[2018] VSC 608
•18 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 04809
| DIRECTOR OF PUBLIC PROSECUTIONS | Plaintiff |
| v | |
| LUKE MIFSUD | Defendant |
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 October 2018 |
DATE OF JUDGMENT: | 18 October 2018 |
CASE MAY BE CITED AS: | DPP v Mifsud |
MEDIUM NEUTRAL CITATION: | [2018] VSC 608 |
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VEHICLES AND TRAFFIC – driving offences – speeding – temporary speed-limit sign – appeal from Magistrates’ Court – whether elements of offence include proof that sign erected with lawful authority – whether prosecution required to so prove when called upon to do so – whether sign substantially complying with specified physical parameters speaks for itself – Road Safety Road Rules 2009 (Vic) rr 1, 20, 21, 315, 316, Road Safety (Traffic Management) Regulations 2009 (Vic) rr 1, pt 2, Criminal Procedure Act 2009 (Vic) s 272(1)
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | E H Ruddle | Office of Public Prosecutions |
| For the defendant | P J Billings with S Thomas | Ondrik Larsen Lawyers |
HIS HONOUR:
Luke Mifsud was charged with violating r 20(1) of the Road Safety Road Rules 2009 (Vic) by driving his motor vehicle on the Hume Highway, Somerton at a speed of 86 kph. A temporary speed limit of 40 kph applied at the time. The usual speed limit was 80 kph, but there were roadworks underway.
At the hearing of the charge in the Magistrates’ Court at Broadmeadows, the defence placed in issue whether the 40 kph temporary speed-limit sign had been erected with lawful authority. It was contended that the prosecution had to establish that it had been. The prosecution declined to do so. It contended that it was enough to establish that the driver had driven on the road exceeding the speed limit specified in a regulation-complying sign, which it had.
The magistrate upheld the defence submission and dismissed the charge. From that decision the prosecution appeals to this court on grounds of error of law pursuant to s 272(1) of the Criminal Procedure Act 2009 (Vic).
Rule 20(1) of the Road Safety Road Rules creates the offence of disobeying a speed limit. It relevantly 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.
Certain penalties are prescribed for breaching this rule. As can be seen, the critical element of the offence created is that the driver has driven at a speed over the ‘speed-limit applying’ to the relevant length of road.
Rule 21(1) specifies what speed limit applies to a length of road. It provides:
The speed-limit applying to a driver for a length of road to which a speed-limit sign applies is the number of kilometres per hour indicated by the number on the sign.
As can be seen, the ‘speed-limit’ applying to a length of road is the limit specified in a ‘speed-limit sign [that] applies’ to it. The italics in this and other rules are original and call up definitions that do not need to be set out.
Rule 21(3) specifies where a ‘speed-limit sign … applies’ to a length of road. It provides:
A speed-limit sign on a road applies to the length of road beginning at the sign and ending at the nearest of the following–
(a)a speed-limit sign on the road with a different number on the sign;
(b)an end speed-limit sign or speed derestriction sign on the road;
(c)if the road ends at a T-intersection or dead end—the end of the road.
As can be seen, a speed-limit sign applies to a length of road beginning with the sign and ending with another sign or a T-intersection or dead end.
In the present case, the length of road concerned was the Hume Highway, Somerton, between Gasoline Way and Patullos Lane. A 40 kph speed-limit sign of the kind specified in r 21(3) applied to this length of road. The objection raised by the defence was that the prosecution had failed (declined) to prove that it was an authorised sign. This was the proposition that the magistrate accepted.
The reasons for decision of the magistrate are set out in the following passage from the transcript of the proceeding:
The primary issue here is the proof the speed limit applying to the driver for the length of road. There’s no dispute about the speed or the manner in which the speed was detected, it’s whether or not the speed signs are authorised. There was no evidence advanced by the prosecution to show that those signs were erected by an authorised person or authority. Presumably they were but the onus is on the prosecution to prove that element. There is an absence of any proof that the temporary road signs were erected with proper and lawful authority.
Relevant is the Road Safety Traffic Management Regulations which I have reviewed. The importance of that regulation as His Honour Mr McCann clearly stated in his decisions it’s clear from the outset of those regulations it sets out an offence for anyone or any person or any organisation that erects and installs traffic control devices when not authorised. It seems clear to me that that is an important element that must be proven, and so in all those circumstances the charge is dismissed.
PROSECUTOR: Thank you, Your Honour. Can I just seek clarification in one matter. Is it your decision that it doesn’t apply to the accused because it wasn’t erected by an authorised person?
HER HONOUR: There was no proof of who authorised. Like I said, I suspect it was authorised by someone, but my decision is this is a technical issue but one which my view must be rectified by the legislature as it appears to be in Western Australia, so my decision is because there’s no evidence of the authorisation from an approved authority then that element of the offence must fail, and so the charge cannot be proven beyond reasonable doubt and is therefore dismissed.
While this reasoning is based upon the provisions of the Road Safety (Traffic Management) Regulations 2009 (Vic), there is nothing in the Road Safety Road Rules to suggest that the offence in r 20(1) requires the prosecution to prove that the speed-limit sign was authorised. The language of the rule suggests that the offence was created with the contrary intention in mind. A driver must not drive at a speed over the ‘speed-limit applying’ to the relevant length of road (r 20(1)), the speed limit so applying is the limit specified in a ‘speed-limit sign [that] applies’ to that length of road (r 21(1)) and the speed limit applies to the length of the road from where the sign begins to where it or the road ends (r 21(3)). With circumspection that I think is deliberate, it is neither specified nor implied that the prosecution must prove that the sign was authorised.
This is confirmed by other provisions of the Road Safety Road Rules which deal with the subject of the legal effect of traffic control devices, including traffic signs.[1] Rule 315(1) and (2) specifies when such devices have legal effect. It relevantly provides:
[1]The Dictionary in the Road Safety Road Rules defines ‘traffic control device’ to mean ‘a traffic sign, road marking, traffic signals, or other device, to direct or warn traffic on, entering or leaving a road;…’.
(1)A traffic control device of a kind mentioned in these Rules has effect for the Rules if–
(a)the device is on a road; and
(b)the device complies substantially with the Rules.
…
(2)A traffic control device is taken to comply substantially with these Rules unless the contrary is proved.
With equally deliberate circumspection, this rule specifies that the physical presence of a substantially compliant device (sign) on the road enlivens the legal effect.
Rule 316 specifies when a traffic control device complies substantially with the Rules. Sub-rule 316(1) relates specifically to traffic signs. It provides:
(3) A traffic sign complies substantially with these Rules if–
(a)it is a reasonable likeness of a diagram in Schedule 2 or 3 of that kind of traffic sign; or
(b)for a traffic sign of a kind for which there is not a diagram in Schedule 2 or 3—it complies substantially with a description of that kind of traffic sign in the Rules and, if the description includes a symbol for which there is a diagram in Schedule 4, the symbol on the sign is a reasonable likeness of the diagram.
...
As can be seen, the specified parameters of compliance are physical in nature and not based on prosecution proof of the authorisation of the sign. The 40 kph speed-limit signs in the present case complied with the specified physical parameters.
With some force, it was submitted for Mr Mifsud that the interpretation of the Road Safety Road Rules for which the prosecution contends would lead to absurd results. Anybody could interfere with the road traffic management system by erecting substantially compliant signs that increase or decrease the otherwise applicable speed limit and these would have legally enforceable effect on the length of road concerned. This would result in the possibility of a person being convicted of a speeding offence upon the basis of an unauthorised sign. The Director of Public Prosecutions agreed with this submission but said it was what the legislation intended, which I do not accept.
The possibility that someone might interfere with the system in this way is the subject of pt 2 of the Road Safety (Traffic Management) Regulations 2009. The provisions of div 1 of that part generally prohibit erecting, installing and interfering with traffic control devices. The provisions of div 2 empower road authorities to erect such devices. The provisions of div 3 empower other entities to do so. The provisions of pt 2 have a connection with s 99 of the Road Safety Act 1986 (Vic), which permits persons and bodies corporate ‘having authority pursuant to the regulations’ to install and maintain signs for the regulation and control of vehicular and other traffic.
It was submitted for Mr Mifsud that these provisions support the conclusion that it is necessary for the prosecution to establish that a speed-limit sign is authorised. The proposition was advanced that, if it would be unlawful to erect a sign without authority, it must be necessary for the prosecution to prove that the sign was erected with authority when the matter is placed in issue. I cannot accept that submission.
In my view, the provisions of the Road Safety Road Rules and the Road Safety (Traffic Management) Regulations have different objectives. As specified in r 1, the main objectives of the Road Safety Road Rules are:
(a)to provide road rules in Victoria that are substantially consistent with road rules elsewhere in Australia, based on the current version of the Australian Road Rules approved by the Australian Transport Council under the National Transport Commission Act 2003 of the Commonwealth;
(b)to establish rules to be observed by road users in Victoria in matters not otherwise dealt with in the Australian Road Rules; and
(c)to consolidate in a single instrument the road rules applying to Victoria.
As specified in r 1, the objectives of the Road Safety (Traffic Management) Regulations are:
(a)to set out the responsibilities of road authorities and other bodies exercising road management functions in relation to the installation, operation and maintenance of traffic control devices; and
(b)to regulate the carrying out of activities on roads; and
(c)to prescribe the requirements for a traffic management plan.
The purposes of the Road Safety Road Rules are not promoted by using the authority provisions of pt 2 of the Road Safety (Traffic Management) Regulations, which were enacted for different purposes, to conclude that the prosecution must prove that a speed-limit sign is authorised.
This being a matter going to the civil liberties of the individual (particularly the presumption of innocence and the prosecutorial onus of proof), I would interpret the relevant rules in Mr Mifsud’s favour if I could.[2] It is understandable why the magistrate did so. But I do not think it is open to adopt this interpretation. The language of the rules is clearly against it and so is their purpose.
[2]Director of Public Prosecutions v Kaba (2014) 44 VR 526, 573 [165]–[166] (Bell J).
Observance of road traffic rules, including speed limits, by all drivers and other road users is indispensable to the operation of the road safety management system. The central purpose of criminal enforcement of the rules, including those relating to speed limits, is ensuring that observance. Road traffic devices, including speed signs, are installed, operated and changed in a highly dynamic road traffic environment. A very large number of people working for road authorities, other entities and police are involved in discharging this function over thousands of kilometres of roadway throughout the entire network at all hours of day and night. To require police and other prosecution authorities to obtain proof of the authority of a device or sign when called upon to do so in an enforcement proceeding would impose intolerable burdens upon them.
A road safety device such as a speed-limit sign is not like an electronic speed detector or breathalyser instrument. A substantially compliant speed-limit sign speaks for itself and can be understood and is capable of being obeyed according to the specified number. Some electronic devices must be certified for accuracy absent which the reading might be statutorily challenged, and this is necessary in respect of each such device. The two cases are quite different.
Road safety devices like speed-limiting signs may be[3] but generally are not installed, operated and changed by the police. Yet it is police who usually enforce the rules of the road, including speed limits. As the two functions are carried out by or on behalf of different government agencies, the practicalities are strongly against requiring police to furnish proof of the authority of a speed-limit sign in the prosecutorial process when called upon to do so.
[3]Road Safety (Traffic Management) Regulations r 15(1).
This was the reasoning of McGill DCJ in the Queensland case of Crossley v Auld.[4] As road rules in Australia reflect a uniform scheme,[5] the rules in question in that case are indistinguishable from our own. Police prosecuted a driver for exceeding an 80 kph speed limit. Among other things, the defence relied upon the failure of the police to establish the legality of the speed-limit sign. For reasons with which I respectfully agree, McGill DCJ rejected this submission:
However, it appears to me that the terms of the [relevant Queensland] Regulation are such that it is not necessary to show, in order to establish the legal validity of a speed limit sign, that it was installed by the chief executive under s 68 [of the relevant Queensland Act], or by a local government under s 69, or by another person under s 72. It is apparent from the terms of the Regulation that what is required for a speed limit sign is simply that it display the physical characteristics identified for such a sign in Schedule 2. Section 316 provides that a traffic control device of a kind mentioned in the Regulation has effect for the Regulation if it is on a road and it complies substantially with the Regulation; it includes a presumption that the device so complies. Section 316 provides that, if a traffic sign is a reasonable likeness of a diagram in Schedule 2, it complies substantially with the Regulation. There is no express requirement that it be installed by any particular person, or with any particular authority. There is no other requirement so far as I can see in the Regulation for the validity of a speed limit sign. It may be that the effect of s 72A of the Act is that a speed limit sign will only be effective if it is installed in a way specified by the Manual of Uniform Traffic Control Devices. It is unnecessary to decide that question, because no reliance was placed by the appellant on any failure to comply with any particular requirement in that manual.
I can find nothing in the Act or Regulation which imposed any condition on the legal effect of something which meets the physical description of a speed limit sign by reference to any particular requirement which has to be complied with before it is installed. Indeed, it would be somewhat surprising if there were any such requirement. The only information which is conveyed to a motorist is that a particular sign looks like a speed limit sign. It is obviously impossible by looking at the sign to determine upon what authority it has been erected. In these circumstances, it would be unsurprising if the legislature provided that the speed limit sign was effective so long as it looked like a speed limit sign, and I can see nothing in the Regulation or the Act which indicates to the contrary.[6]
[4][2011] QDC 270 (17 November 2011) (‘Crossley’).
[5]See the objective specified in r 1(a) of the Road Safety Road Rules.
[6]Crossley [2011] QDC 270 (17 November 2011) [25]–[26].
The submissions made for Mr Mifsud in the present case sought to distinguish Crossley upon the basis that the relevant Queensland Act creates the offence of installing a traffic sign without lawful excuse. McGill DCJ took this into account[7] but not in a way that qualifies the generality of his Honour’s reasoning and, in any event, the provisions of pt 2 of our Road Safety (Traffic Management) Regulations create a similar offence (see above).
[7]Ibid [27].
Contrary to the submissions of the Director, I do not think the legislation, regulations and rules intend that drivers will be liable for exceeding the speed specified in an unauthorised speed-limit sign. If a driver proves that the sign is unauthorised, it is a valid defence. But it is up to the driver to supply that proof. In respect of the issue of authorisation of the speed-limit sign, it is effectively a reverse-onus situation. Where such proof is forthcoming, prosecution of the charge may have to be reconsidered. But routine prosecutions must not be frustrated by requiring police to prove that substantially compliant speed-limit signs are authorised. The regulations criminalise the erection of an unauthorised speed-limit sign without requiring police to so prove, and the rules do not so require. The position here is therefore effectively the same as under comparable regulations in Western Australia.[8]
[8]Rule 300(3) of the Road Traffic Code 2000 (WA) provides:
A traffic sign or traffic-control signal marked, erected, established or displayed on or near a road is, in the absence of evidence to the contrary, presumed to be a traffic sign or traffic-control signal marked, erected, established or displayed under the authority of these regulations.
Driving a motor vehicle on a road in excess of the specified speed limit is an offence of strict responsibility and the prosecution does not have to prove that the driver knew, or did not have a mistaken belief as to, what the limit was.[9] The prosecution must prove that the speed limit applied to the driver for the length of the road concerned, which (in the usual and present case) requires proof that a substantially compliant speed-limit sign applied to that length of road when the driver was driving.[10] It must prove that, when doing so, the driver exceeded the limit specified in the sign. It does not have to prove that the sign was authorised.
[9]Kearon v Grant [1991] 1 VR 321, 323 (Brooking J, Kaye and Murphy JJ agreeing); Roads and Traffic Authority of New South Wales v Bourke [2010] NSWSC 559 (31 May 2010) [7] (Rothman J).
[10]Road Safety Road Rules rr 20–1, 315–16.
The appeal will therefore be upheld. I will hear submission on the appropriate orders.
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