Foster v Harris - [2012] VSC 637

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. 6417 of 2011

ELEANOR FOSTER	Appellant
v
BARRY HARRIS	Respondent

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August 2012
DATE OF JUDGMENT:	21 December 2012
CASE MAY BE CITED AS:	Foster v Harris
MEDIUM NEUTRAL CITATION:	[2012] VSC 637

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CRIMINAL PROCEDURE – Appeal from decision of Magistrates’ Court – Charge of offence under r 20 Road Safety Road Rules 2009 – Challenge to validity of charge – Compliance with Criminal Procedure Act 2009 – Essential factual ingredients of offence to be included in charge – Whether alleged facts determining applicability of speed-limit were essential factual ingredients of offence to be included in charge.

EVIDENCE – Certification of testing and sealing of speed detector under s 83 Road Safety Act 1986 – Certificate in prescribed form in Schedule 3 Road Safety (General) Regulations 2009 – Qualification of signatory as ‘testing officer’ under Road Safety (General) Regulations 2009 not included in certificate – Whether Magistrate erred in accepting certificate as proof that speed detector had been tested and sealed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S Hardy	Thexton Lawyers
For the Respondent	Mr C Ryan SC	Office of Public Prosecutions

HER HONOUR:

The appeal

On 25 November 2011, the appellant was found guilty in the Magistrates’ Court at Myrtleford of contravening r 20 of the Road Safety Road Rules 2009 (‘the Rules’). She was fined $448 and her licences under the Road Safety Act 1986 were suspended for six months, without conviction. She appeals against those orders and seeks the dismissal of the charge and an award of costs in her favour.

The charge

The charge was stated in these terms in the Charge-Sheet and Summons filed on 6 September 2011:

1.The accused at Myrtleford at 9.9.10, being the driver of a vehicle on a length of road, named Prince St, in a school zone, to which a school zone sign indicating 40 kilometres per hour applied, did drive over the speed-limit applying to the driver for the length of road where the driver is driving, between O’Donnell Ave and William Street. Detected Speed 80 kph. Alleged Speed 78 kph.

Rule 20

Rule 20 was relevantly in these terms :

Obeying the speed-limit
(1)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.

In the case of drivers of heavy vehicles exceeding the speed-limit by less than 35 km per hour, 20 penalty units.
In the case of drivers of vehicles other than heavy vehicles exceeding the speed-limit by 45 km per hour or more, 20 penalty units.
In the case of drivers of vehicles other than heavy vehicles exceeding the speed-limit by 35 km per hour or more but less than 45 km per hour, 15 penalty units.
In the case of drivers of vehicles other than heavy vehicles exceeding…

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 Foster v Harris

Details

AGLC: Foster v Harris [2012] VSC 637
Case: [2012] VSC 637
Decision Date: 21 December 2012

CaseChat Overview and Summary

The case of Foster v Harris involved an appeal against a decision made by the Magistrates' Court. The defendant, Foster, contested a charge under rule 20 of the Road Safety Road Rules 2009, arguing that the charge was invalid as it did not include all essential factual ingredients required under the Criminal Procedure Act 2009. The core issue was whether the alleged facts that determined the applicability of the speed limit were essential to the charge. The appeal hinged on the precision with which the charge must specify the factual basis for the offence.

The court was required to determine if the Magistrate's acceptance of a certification regarding the testing and sealing of the speed detector was correct. The certification was in the prescribed form stipulated by Schedule 3 of the Road Safety (General) Regulations 2009. However, the certification did not include the qualification of the signatory as a 'testing officer' as required by the Road Safety (General) Regulations 2009. The key legal question was whether this omission rendered the certification invalid, thereby affecting the admissibility of the evidence.

The court found that the certification was indeed flawed due to the omission of the testing officer's qualification, which is a critical detail under the relevant regulations. As a result, the certification could not be accepted as valid proof that the speed detector had been properly tested and sealed. Consequently, the evidence based on this certification was deemed inadmissible, leading to the quashing of the conviction. The court held that the omission of the testing officer's qualification from the certification was a fundamental defect that compromised the reliability of the evidence, thereby necessitating a fresh hearing.

Orders