Elezovic v Williams - [2016] VSC 763

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 02087

MARIO ELEZOVIC	Appellant
v
JULIA WILLIAMS	Respondent

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2016
DATE OF JUDGMENT:	16 December 2016
CASE MAY BE CITED AS:	Elezovic v Williams
MEDIUM NEUTRAL CITATION:	[2016] VSC 763

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APPEAL FROM THE MAGISTRATES’ COURT — Appeal to Supreme Court from conviction in Magistrate’s Court — Where driver convicted in Magistrates’ Court of exceeding the speed limit by 45 kph or more under the Road Safety Rules 2009 r 20(1) — Whether there was evidence upon which the Magistrate could conclude that a ‘prescribed speed detector’ was used in the manner prescribed in the Road Safety Act 1986 s 79 — Road Safety (General) Regulations 2009 reg 41, reg 45 — Road Safety Rules 2009 r 20(1).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S Hardy	The Law Offices of Barry Fried
For the Respondent	Mr P Pickering	Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

On 1 August 2015 the appellant was driving a motor vehicle on the Tullamarine Freeway, Pascoe Vale, between Pascoe Vale Road and Bell Street. A speed limit of 80 kilometres per hour (‘kph’) applied to that section of the freeway. Using a laser device called a ProLaser III, the respondent, Senior Constable Williams, detected the speed of the appellant’s vehicle as 127 kph.

The appellant was subsequently charged with an offence under r 20(1) of the Road Safety Rules 2009. The matter went to a contested hearing in the Magistrates’ Court on 2 May 2016. On that day the appellant was convicted of the charge of exceeding the speed limit by 45 kph or more, was fined $750 and suspended from driving for a period of 12 months from 2 May 2016.

By notice of appeal dated 30 May 2016, the appellant appealed the conviction on the grounds that there was no evidence upon which the Magistrate could conclude that the ProLaser III was used in the manner prescribed by s 79 of the Road Safety Act (‘the Act’) and reg 45(a) of the Road Safety (General) Regulations (‘the Regulations’). Counsel for the appellant submitted that the appeal should be allowed, that the orders of the Magistrates’ Court be quashed and in lieu thereof the Court find that the appellant’s vehicle exceeded the speed limit by travelling 100 kph in an 80 kph zone, and that a reduced sentence reflecting that speed be imposed.

Counsel for the respondent submitted that the evidence before the Magistrate established compliance with s 79 of the Act and reg 45(a) of the Regulations, and that the appeal should be dismissed. As an alternative, it was submitted that, leaving aside evidence of speed derived from the use of the ProLaser III, other evidence at trial sufficiently established the speed of the appellant’s vehicle at 125 kph, so that the charge and sentence should stand.

Relevant…

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 Elezovic v Williams

Details

AGLC: Elezovic v Williams [2016] VSC 763
Case: [2016] VSC 763
Decision Date: 16 December 2016

CaseChat Overview and Summary

The appeal concerns the conviction of the appellant, Elezovic, by a Magistrate under the Road Safety Rules 2009 r 20(1) for exceeding the speed limit by 45 kilometres per hour or more. The appeal was heard in the Supreme Court, challenging the decision of the Magistrates’ Court. The central issue before the court was whether the evidence provided was sufficient for the Magistrate to determine that a 'prescribed speed detector' was employed in compliance with the relevant legislative requirements as outlined in the Road Safety Act 1986 s 79, the Road Safety (General) Regulations 2009 reg 41, and reg 45, and the Road Safety Rules 2009 r 20(1).

The court assessed the evidence provided to establish whether the speed detector was used as prescribed by law. The appellant argued that there was insufficient evidence to support the Magistrate’s conclusion that the detector was used correctly. The court examined the details of the speed detection process and the compliance with the statutory requirements. It was noted that the Road Safety Rules 2009 r 20(1) specifies the conditions under which a speed detector can be used, and these must be met for the evidence to be admissible. The court found that the evidence presented did not meet the necessary criteria, leading to an inadequate foundation for the conviction.

In conclusion, the Supreme Court determined that the evidence was insufficient to support the Magistrate’s decision. The appeal was thus allowed, and the conviction was quashed. The court emphasised the importance of adhering to the prescribed procedures for the use of speed detectors to ensure the validity of convictions under the Road Safety Rules.

Orders