Feltham v Fox - [2023] VMC 9

IN THE MAGISTRATES’ COURT OF VICTORIA

AT DANDENONG

CRIMINAL DIVISION

Case No. L12929413

Senior Constable Alastair Feltham

Matthew Fox

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MAGISTRATE:	CONNELLAN
WHERE HELD:	Dandenong
DATE OF HEARING:	9 March 2023
DATE OF DECISION:	5 April 2023
CASE MAY BE CITED AS:	Feltham v Fox
MEDIUM NEUTRAL CITATION:	[2023] VMC 9

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CRIMINAL LAW – ‘Other than a heavy vehicle’, Road Safety Act 1986 s 3(1) – Matters of common knowledge, Evidence Act 2008 s 144 – Speed limit signs, Road Safety Road Rules 2017 rr 21, 315, 316 and Schedule 2 – Prescribed speed measuring device – Testing and sealing, Road Safety Act 1986 s 83(1) – Evidence to the contrary, Road Safety Act 1986 s 79(1).

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APPEARANCES:	Counsel	Solicitors
For the Informant	Senior Constable Woodforde	Victoria Police Prosecutions
For the Accused	Mr W Walsh-Buckley	Pica Criminal Lawyers

Table of contents

The evidence

Submissions and findings

Other than a heavy vehicle
Speed limit sign
Prescribed speed measuring device
Presumption of regularity
Requirement to put a matter in cross-examination
Evidence to the contrary
Operation of speed detection device
Location of the offence

Conclusion

Appendix 1

HIS HONOUR:

The evidence

Mr Walsh-Buckley, for the accused Mr Fox, opened by telling the Court the prosecution would be put to its proofs. However, he acknowledged various matters were agreed:
a.the date (15 September 2020), the time (approximately 12:20pm), and the place (Nar Nar Goon-Longwarry Road, Tynong, between Tynong Road and Kerrs Lane);
b.the identification of Mr Fox as the person who was driving the subject vehicle, a black Porsche, registration AZI207, at the relevant time; and
c.the body worn camera (BWC) footage of Senior Constable (SC) Feltham.
SC Woodforde sought an order for witnesses out of court, which was granted. The prosecution called SC Feltham and SC Andrew Peile. SC Peile corroborated a limited aspect of SC Feltham’s evidence as to the applicable speed limit but was not otherwise involved in SC Feltham’s investigation.
Mr Fox called no evidence for his case.
Documents tendered for the prosecution case were:
a.exhibit P1: BWC footage of SC Feltham recorded during the intercept of Matthew Fox on 15 September 2020;
b.exhibit P2: as an aide for the Court only, the statement of SC Feltham dated 7 October 2021;
c.exhibit P3: SC Feltham’s Speed Detector Authority SM 24051, Laser 25 June 2013; and
d.exhibit P4: certificate under s 83 of the Road Safety Act 1986 (RSA) (section 83 certificate) for speed detector Pro-Lite+ No. PL311P, dated 27 November 2019.
SC Woodforde played exhibit P1, the BWC footage, to the Court immediately prior to SC Feltham being sworn. Unfortunately, neither party had prepared a transcript of the conversation between SC Feltham and Matthew Fox. It is unfortunate because if it had been prepared, a number of the issues raised by Mr Walsh-Buckley in his 13 pages of submissions would have been clearly devoid of any foundation.
I have prepared a transcript of the conversation which is attached to these reasons as Appendix 1. Whilst it may contain some minor errors or omissions, I am confident it is an accurate transcript of their conversation. The time references, inserted to assist my review of the BWC content, are references to the time elapsed since the BWC was activated by SC Feltham and not to the time of day. I have also referred, at times, to what is visually recorded on the BWC footage, such as SC Feltham’s movements and objects associated with his work, such as his police motorcycle and the speed detection device he used.
Upon SC Feltham being sworn, Mr Walsh-Buckley advised the Court he was content for SC Feltham’s statement to be tendered as an aide to the Court to save the Court from taking notes of the evidence. Whilst SC Feltham’s statement became exhibit P2, I took notes of the evidence as it was given. From experience, viva voce evidence invariably varies from the prepared statement.
In evidence, SC Feltham explained SC Peile and he were working on their police BMW motorcycles in tandem and set up at a static location on the Nar Nar Goon-Longwarry Road. SC Feltham set up on the driveway of the Tynong Fire Brigade so he could measure the speed of vehicles travelling east along Nar Nar Goon-Longwarry Road. He gave evidence of his authority to operate that device and produced his authority (exhibit P3). He said he was using Pro-Lite Plus laser speed detection device, PL311P, which was a prescribed speed detection device. He gave evidence the seals were intact and the date the laser had been certified was printed on a label on the device. He said the device had been tested and sealed within the previous 12 months, as required by the Road Safety (General) Regulations 2019 (Regulations). He produced the section 83 certificate for speed detector Pro-Lite+ No. PL311P, dated 27 November 2019, which became exhibit P4.
He gave evidence he had checked the operation of the device that morning, in accordance with the Regulations, and found the device to be operating properly. He said there was no interference when he activated the laser to measure the speed on Mr Fox’s vehicle. There were no other vehicles in his field of view and no other vehicles on the road heading in either direction at the time. He pointed the laser at Mr Fox’s approaching vehicle and the laser displayed the speed of his vehicle as 90 kph at 211.7 metres. SC Feltham activated the blue and red lights on his motor cycle and intercepted Mr Fox. He parked behind Mr Fox’s vehicle and before approaching, he activated his BWC. The BWC records what happened thereafter until after Mr Fox’s vehicle departed about 13 minutes after the BWC was activated.
SC Feltham advised Mr Fox he was intercepted for speeding, doing 90 kph in a 60 kph zone. SC Feltham shows the reading on the speed detection device to Mr Fox. Mr Fox asserts he was detected in a 80 kph zone and was exceeding the speed limit by only 10 kph. Mr Fox asserts he must have been checked with the laser before Nine Mile Road and that it was in a 80 kph zone. SC Feltham pointed out where he was when he activated the laser device, namely the driveway of the Tynong Fire Brigade and that the 211 metres west of the driveway was a 60 kph zone. Subsequently, SC Feltham walked back to SC Peile and checked with him the speed zone in which they were measuring vehicle speeds. As recorded on the BWC, SC Peile told SC Feltham it was definitely a 60 kph zone.
SC Feltham told the Court that, before setting up at the Fire Brigade, he had travelled along Nar Nar Goon-Longwarry Road from the west and had observed three sets of 60 kph zone signs indicating it was a 60 kph zone Mr Fox was travelling in when detected. The first set of 60 kph signs, one on each side of the road and facing the east bound traffic, were just to the west of Nine Mile Road.
He said there were two more sets of 60 kph zone signs, again one on each side of the road and facing the east bound traffic, between the first set west of Nine Mile Road and the driveway to the Tynong Fire Brigade. He referred to the second and third set of signs as repeater signs. SC Feltham described the signs to the Court as having a white background with a red circle, with the speed ‘60’ inside the red circle. He said the second set of 60 kph zone signs west of the Tynong Fire Brigade driveway were about 340 metres west of the driveway, and the set west of Nine Mile Road were another 400 plus metres west of that set. Based on that, he estimated Mr Fox’s vehicle was at least 700 metres inside the 60 kph zone by the time he passed the Tynong Fire Brigade. Based on this, Mr Fox would be roughly 500 metres inside the 60 kph zone at the point he was detected travelling 90 kph by the laser.
In cross-examination SC Feltham said the laser device he used was assigned to him and his motorcycle and no one else used the device. He said there was no fault history logged with the device and he would know if there was one as he was the only person using that device. He said he was the only officer who used his motorcycle.
SC Feltham described how he used the laser to measure the speed of Mr Fox’s approaching vehicle. He aimed it at the front number plate as this was the largest hard flat surface on the vehicle. He described how he rested one elbow on his motorcycle and held the laser up to his eyes with both hands. When it was suggested that using the laser was like aiming a pistol, SC Feltham disputed this and said it was like using a pair of binoculars. In the BWC footage, the laser is shown. It appears very similar to a small flat set of binoculars. He agreed the engine of his motor cycle was running when he used the laser to measure the speed of Mr Fox’s vehicle. He denied vibration from the engine caused any interference with his use of the laser.
When it was put to SC Feltham that he was confused about the applicable speed limit for the stretch of road Mr Fox was driving on he said he was not, he was 100 per cent certain it was a 60 kph zone. He said when he returned to his motorcycle after initially speaking to Mr Fox, he noticed the GPS system for his BMW was indicating it was in a 70 kph zone. He did not believe this was correct and went to speak to SC Peile who confirmed his view that it was a 60 kph zone. He told the Court the factory mounted GPS on the BMW motor cycles was not updated after purchase and so it recorded circumstances that applied when the system was first loaded.
Mr Walsh-Buckley put to SC Feltham that Mr Fox was not exceeding the speed limit and that Mr Fox denied speeding. SC Feltham accepted Mr Fox denied speeding but said it was not correct that Mr Fox was not exceeding the speed limit.

Submissions and findings

In his written submissions, Mr Walsh-Buckley set out ‘Submission A’ to ‘Submission D’ and then a submission headed ‘Generally to all Submissions A to C’. This last general submission detailed that the prosecution could not rely on the presumption of regularity, and there was no obligation on an accused to put to an informant there is insufficient evidence to prove an element of the offence. I will deal with the submissions in the order in which they were set out in the written document.

Other than a heavy vehicle

Mr Walsh-Buckley submits the Court cannot be satisfied beyond reasonable doubt the vehicle driven by Mr Fox, a Porsche Cayenne, was ‘other than a heavy vehicle’. The vehicle is shown in the BWC footage. It is a passenger vehicle. It has a driver’s seat, seats for passengers and a luggage compartment at the rear. Mr Walsh-Buckley says it is a SUV. It is a big, large vehicle he submits.
As Mr Walsh-Buckley submitted, a heavy vehicle is defined in the RSA as having the same meaning as in the Heavy Vehicle National Law (Victoria).[1] As Mr Walsh-Buckley submitted, a vehicle is a heavy vehicle if it has a gross vehicle mass (GVM) or aggregate trailer mass (ATM) of more than 4.5 tonne. Consistently a light vehicle is defined as a vehicle with a GVM or ATM of 4.5 tonne or less.[2] He submits the GVM means the maximum loaded mass of the vehicle as specified by the vehicle’s manufacturer.[3] In oral submissions he said the same RSA definition provides that the Secretary of the Department of Transport may specify the GVM for a vehicle if the manufacturer has not done so or the vehicle has been modified to the extent the manufacturer’s specification is no longer appropriate. Mr Walsh-Buckley submits there is no evidence the black Porsche Cayenne S wagon, AZI-207, driven by Mr Fox, had a GVM of less than 4.5 tonne.
[1]Road Safety Act 1986 s 3(1). Section 4 of the Heavy Vehicle National Law Application Act 2013 (Vic), applies the Heavy Vehicle National Law as in force from time to time as set out in the Schedule to the Heavy Vehicle National Law Act 2012 of Queensland.
[2]Road Safety (Vehicle) Regulations 2009 reg 5. Although subsequently repealed and replaced by the Road Safety (Vehicle) Interim Regulations 2020 and then the Road Safety (Vehicle) Regulations 2021 as at 15 September 2020, the 2009 Regulations applied. The definition of a light motor vehicle has remained unchanged and is the mirror opposite of the definition of a heavy vehicle.
[3]Road Safety Act 1986 s 3(1).
He submits it is an element of the offence and must be proven beyond reasonable doubt. I accept that is the case. He further submits it is not a matter the Court can take judicial notice of pursuant to s 144 of the Evidence Act 2008. I disagree for the reasons below.
There are two arms to s 144(1) of the Evidence Act 2008. In his submissions, Mr Walsh-Buckley addresses the first limb, common knowledge in the locality or generally.
It is common knowledge in Victoria that a Porsche Cayenne is not a heavy vehicle. This is readily apparent from the following common knowledge:
a.a Porsche Cayenne is not required to meet the requirements of the National Heavy Vehicle Law;
b.the driver of a Porsche Cayenne is not subject to investigations conducted by the National Heavy Vehicle Regulator; and
c.the driver of a Porsche Cayenne is required to hold a car driver licence and not a heavy vehicle driver licence such as a light rigid vehicle category Victorian driver licence.[4]
[4]Road Safety (Drivers) Regulations 2019 regs 5 and 6. A light rigid vehicle licence is required to drive any vehicle with GVM of more than 4.5 tonnes but not more than 8 tonnes.
Each of these matters are common knowledge and not reasonably open to question in Victoria and to the plethora of owners and drivers of SUVs, including a Porsche Cayenne. On the basis of this common knowledge, I am satisfied the Porsche Cayenne driven by Mr Fox and shown in the BWC footage is not a heavy vehicle as defined. I am satisfied beyond reasonable doubt Mr Fox’s vehicle was ‘other than a heavy vehicle’ as alleged by the charge.
Mr Walsh-Buckley did not address directly the second alternative limb of s 144(1) of the Evidence Act 2008, ‘capable of verification by reference to a document the authority of which cannot reasonably be questioned.’ However as noted, he expressly referred to the vehicle manufacturer’s specifications in his submission. The legislation defines GVM by reference to the manufacturer’s specifications and, by expressly referring to that definition, Mr Walsh-Buckley, consistent with the legislation, also invites the Court to treat such a document as a document the authority of which cannot reasonably be questioned. Pursuant to ss 144(2) and (3) of the EvidenceAct 2008, a judge may acquire knowledge of that kind in any way the judge thinks fit and is to take knowledge of that kind into account.
Under s 144(4) of the Evidence Act 2008, the judge is to give a party such opportunity to make submissions relating to the acquiring or taking into account of common knowledge so as to ensure that party is not unfairly prejudiced. Mr Walsh-Buckley devoted almost a page of his submissions setting out why he says this Court cannot take judicial notice of the fact Mr Fox’s ‘big SUV vehicle….was less than 4.5 tonnes as the GVM’. He dedicated almost a further page of his submissions as to why decisions of other judicial officers of the Magistrates’ Court do not bind this Court and should not be given any significant regard by me. He did not set out the factual circumstances and the reasons for decision of the cases he referred to, but I understand he referred to them on the applicability of common knowledge to prove the requirement ‘other than a heavy vehicle’. I have not had regard to any of those decisions. Given the legislative sanction provided to the manufacturer’s specifications, in all the circumstances, I do not consider a further opportunity to make submissions is required to ensure Mr Fox is not unfairly prejudiced by the Court having regard to the manufacturer’s specifications for a Porsche Cayenne.
An internet search of the Porsche Australia website for the manufacturer’s specifications quickly reveals the unladen weight of the current Porsche Cayenne S and Porsche Cayenne SUV is 2020 kilograms and its permissible gross weight is 2840 kilograms. It is likely the permissible gross weight of a Porsche Cayenne varies slightly from model to model. Nevertheless, as a standard five door, five seat SUV passenger vehicle its GVM is approximately 1.6 tonne less than the GVM of a heavy vehicle according to the legislative definition of its GVM. Although I am satisfied beyond reasonable doubt Mr Fox’s Porsche Cayenne was other than a heavy vehicle based on the first limb, s 144(1)(a), I am also so satisfied based on the second limb, s 144(1)(b).

Speed limit sign

Mr Walsh-Buckley submits the prosecution have not established beyond reasonable doubt the element of the charge ‘speed limit sign’ as required by r 21 of the Road Safety Rules 2017 (Rules).
In his evidence, SC Peile said the first set of 60 kph signs, the ones just west of Nine Mile Road, complied with the requirements of the Rules. SC Feltham described the signs as having a white background with a red circle and the speed ‘60’ written in black letters in the red circle.
The term ‘standard sign’ is given specific meaning by the Rules. Rule 21 of the Rules defines the speed limit to be where a speed limit sign applies to be the number of kilometres per hour indicated by the number on the sign.[5] Rule 21 describes the applicable speed limit signs by use of diagrams, and the ‘Speed-limit sign (Standard sign)’ corresponds with the description, including the colour of the background, circle and numbers, given by SC Feltham. Rule 315 stipulates a traffic control device has effect for the Rules if it is on a road and complies substantially with the Rules. Rule 316 defines when traffic control devices comply substantially with the Rules. It stipulates that a traffic sign complies substantially with the Rules if ‘it is a reasonable likeness of a diagram in Schedule 2 or 3 of that kind of traffic sign’.[6] The diagram of a ‘Speed-limit sign (Standard sign)’ in Rule 21 is also contained in Schedule 2 ‘Standard or commonly used traffic signs’ with the same colour scheme as detailed in rules 21 and 316. The traffic signs described by SC Feltham comply substantially with the diagrams in rule 21 and Schedule 2 for the ‘Standard sign’.
[5]Road Safety Road Rules 2017 r 21(1).
[6]Road Safety Road Rules 2017 r 316(1)(a).
The cases Mr Walsh-Buckley relied on in his submission on this issue all predate the Rules. Whilst they contain important matters of legal principle, the evidence before me is clear and determines the matter. I am satisfied beyond reasonable doubt the prosecution has established the three sets of speed limit signs applicable to the length of road on which it is alleged Mr Fox was driving at the relevant time comply with the requirements for a speed limit sign pursuant to rules 21, 315 and 316 of the Rules.

Prescribed speed measuring device

Mr Walsh-Buckley submits the prosecution has not established beyond reasonable doubt the laser speed measuring device is a prescribed device. His submission is based upon the spelling in SC Feltham’s sworn statement of ‘Prolaser ProLite’. Mr Walsh-Buckley submits there is no such laser device referred to in the Regulations.[7] Rather the Regulations refer, relevantly, to a ‘Pro-Lite’ and a ‘Pro-Lite+’. The absence of the hyphen in SC Feltham’s statement is, according to Mr Walsh-Buckley, fatal to the prosecution because it means the evidence does not establish beyond reasonable doubt the laser used by SC Feltham was a prescribed laser. There is no substance to this submission.
[7]Road Safety (General) Regulations 2019 reg 41(b).
The statement of SC Feltham, at Mr Walsh-Buckley’s suggestion, was provided to the Court as an aide memoire. It was marked as exhibit P2 for convenience but was not tendered as evidence. The relevant evidence is the viva voce evidence of SC Feltham, the BWC footage (exhibit P1), and the section 83 certificate regarding testing and sealing of the laser device he used (exhibit P4). SC Feltham told the Court he used a Pro-Lite+ laser with device number PL311P. As noted above, he told the Court the laser device was assigned to his police motorcycle and he was the only person who used his police motorcycle and the device. He said he knew from the label on the device that it was that particular device and that it had been tested and sealed within the 12 month period prior to intercepting Mr Fox on 15 September 2020. He gave evidence the seals were intact when he used the device to measure the speed of Mr Fox’s vehicle and he produced the section 83 certificate (exhibit P4).

The BWC footage shows at 1:07pm a label on the laser device. The label records on the first line ‘Equip No PL311P’ and on the second line ‘Certified 27-Nov-2019’. Exhibit P4 states, leaving out deletions of options marked on the certificate, ‘The speed detector Pro-Lite+ (No. PL311P) was tested... on 27 November. 19.’ The certificate is signed and dated 27 November 2019.
Based on the evidence, I am satisfied beyond reasonable doubt the laser device used by SC Feltham was a prescribed device that was tested and sealed within 12 months prior to its use to measure the speed of Mr Fox’s vehicle at Tynong on the 15th of September 2020 and it was operated in the prescribed manner.

Presumption of regularity

The presumption of regularity does not arise in relation to any of the issues above raised by Mr Walsh-Buckley.

Requirement to put a matter in cross-examination

No issues arise as to whether matters should have been put to a prosecution witness in cross-examination in relation to the matters raised by Mr Walsh-Buckley.

Evidence to the contrary

Mr Walsh-Buckley relies on s 79(1) of the RSA, and submits Mr Fox does not admit the speed alleged in his roadside interview with SC Feltham, namely the conversation recorded on the BWC footage, and that in his evidence. SC Feltham accepted Mr Fox denies speeding. It is correct that when the following was put in cross-examination ‘you put (sic) 90 in 60 – he denies speeding’, SC Feltham replied with ‘that’s correct’.
He submitted SC Feltham never asked Mr Fox what speed he was doing. Mr Walsh-Buckley submitted that in the absence of such an investigative question, as he described it, the failure of Mr Fox to admit the speed alleged and his denial that he was speeding, is sufficient for the Court to conclude there was ‘evidence to the contrary’ as required by s 79(1). Mr Walsh-Buckley submitted in his written submissions:
If the Court is satisfied that in all the circumstances the accused’s statement to the police, is evidence which is not unconvincing, not inherently unreliable and capable of being believed then the accused has negotiated his burden to adduce evidence to the contrary and the pleaded charge particularized at an alleged speed of 88 kph must be dismissed
As noted, no transcript was provided to the Court of the conversation contained on the BWC footage. An examination of the conversation as transcribed by me and set out in Appendix 1 reveals Mr Fox never challenged the alleged speed of 90 kph. Mr Fox disputed the speed-limit zone he was travelling in at the time his vehicle’s speed was measured by the laser. His first response was ‘I thought this was in the 80 zone.’ His second response to the issue was ‘Well I still think it was in an 80 zone, anyway.’ His third response, ‘I put it to you, you were at Nine Mile Road and I was in an 80 zone. And you just pulled me up in a safe spot, I don’t think I was in a 60 zone, but anyway.’ His fourth response, ‘But erh, as I said I put it to you that we were only ten over, we were at Nine Mile Rd.’ His fifth response, ‘It’s a case of your mistaken.’ Finally, he says, ‘No thanks I think I made my point very clear. Good on ya.’
At no stage does Mr Fox dispute the speed the laser measured his vehicle doing was 90 kph. Indeed his comment ‘I put it to you that we were only ten over’ is in the context an acknowledgement his vehicle was travelling at 90 kph at the time it was checked by the laser. Mr Fox did make his point very clear – he never disputed his vehicle was measured at 90 kph. He disputed he was measured travelling at that speed in a 60 kph zone. He asserted his speed was measured prior to Nine Mile Road and that he was driving in a 80 kph zone at that time.
There is no evidence to the contrary of the kind required by s 79(1) of the RSA.

Operation of speed detection device

Mr Walsh-Buckley cross-examined SC Feltham as to how he used the laser device when measuring the speed of Mr Fox’s vehicle. Among other matters, he suggested to SC Feltham that the vibration of his motorcycle engine may have interfered with his operation of the device at that time. The motorcycle’s engine is running on idle throughout the BWC footage. Consistent with SC Feltham’s evidence, the motorcycle engine vibration did not interfere with the operation of the laser device. The BWC footage demonstrates, as I have noted in Appendix 1, there would be no interference with his ability to operate the laser device. Items left resting on the idling motorcycle by SC Feltham for significant periods of time show no sign of the slightest movement. Parts of the idling motorcycle, such as the rear vision mirror and the windshield, show no sign of even the slightest vibration.

Location of the offence

Consistent with the agreement as to location of the event, no cross-examination was directed to Mr Fox’s contention in the BWC footage conversation that his speed of 90 kph was measured prior to Nine Mile Road and at a place governed by an 80 kph speed zone. I found SC Feltham to be an honest and reliable witness. I have no reason to reject SC Feltham’s evidence as to the location at which he measured the speed of Mr Fox’s vehicle and that it was travelling on a length of road governed by a 60 kph speed zone as marked by the three sets of 60 kph speed-limit signs in accordance with the Rules.

Conclusion

I am satisfied beyond reasonable doubt, on the totality of the evidence, each element of the offence is established and the charge is proven. I find Mr Fox guilty of the charge.
I will hear the parties on the issue of penalty and any other issue they wish to raise.

G Connellan
Magistrate
5 April 2023

Appendix 1

BWC transcript
S/C A Feltham and Matthew Fox
15 September 2020

SC Alastair Feltham (AF)
Matthew Fox (MF)
SC Andrew Peile (AP)