Furio Rossi v Regina
[2016] NSWDC 168
•17 August 2016
|
New South Wales |
Case Name: | Furio Rossi v Regina |
Medium Neutral Citation: | [2016] NSWDC 168 |
Hearing Date(s): | 9 August 2016 |
Date of Orders: | 17 August 2016 |
Decision Date: | 17 August 2016 |
Jurisdiction: | Criminal |
Before: | Judge AC Scotting |
Decision: | 1 The order that I make is that the appeal against conviction for the offence of exceed speed by more than 45km/hour is dismissed. |
Catchwords: | CRIMINAL LAW – appeal – speeding offence – speed measuring device – appropriate inspection officer – definition – interpretation – admissibility of inspection certificate |
Legislation Cited: | Crimes (Appeal and Review) Act 2001 s.12 |
Cases Cited: | Henning v Lynch [1974] 2 NSWLR 254 |
Category: | Principal judgment |
Parties: | Furio Rossi (Appellant) |
Representation: | Counsel: |
File Number(s): | 2015/00101733 |
JUDGMENT
Furio Rossi (the appellant) appeals against the severity of the sentence imposed on him by his Honour Magistrate Bailey on 1 April 2016 at the Downing Centre Local Court. The appellant also sought leave to appeal against the conviction based on his plea of guilty in the Local Court, pursuant to section 12 Crimes (Appeal and Review) Act 2001, if it was necessary to do so.
At about 10.10pm on 18 August 2015 the appellant was the driver of a vehicle on River Road at Northwood. At that time Senior Constable Wolven was operating a hand held Lidar radar device serial number LA 396 (the device) to measure the speed of vehicles that drove past. The prosecution alleged that the appellant was detected driving at 101km/hour in a 50km/hour zone, by reference to the reading from the device obtained by Senior Constable Wolven.
The appellant was charged with one count of exceeding the speed limit by more than 45km/hour, contrary to rule 20 of the Australian Road Rules 2014 (the Road Rules). The maximum penalty for the offence was a fine of $2,530. A conviction for the offence also carried with it a mandatory and minimum licence suspension for 6 months. The magistrate convicted and fined the appellant the sum of $2,500.
The appellant accepted that he was speeding at the time he was observed by the police, but disputed that he was doing so by more than 45km/hour over the limit. The magistrate convicted the appellant of the offence after he pleaded guilty in the course of the hearing.
On the appeal, the appellant contended that the certificate tendered pursuant to section 137 Road Transport Act 2013 (the section 137 certificate) was inadmissible and if I accepted that argument that I should set aside the conviction and find the appellant guilty of the statutory alternate of exceed speed by between more than 30km/hour but less than 45km/hour provided for by rule 10-2(7) Road Rules.
Admissibility of the section 137 certificate
The relevant law
Section 135 Road Transport Act 2013 relevantly defines an “appropriate inspection officer” in relation to an approved traffic enforcement device that measures the speed at which a vehicle is travelling but is not used in conjunction with, or as part of a digital camera device to be a police officer or a person authorised by the Commissioner of Police to test a device of that kind.
Section 136 Road Transport Act 2013 provides that evidence may be given in proceedings for a speeding offence of a measurement of speed obtained and recorded by an approved traffic enforcement device that is approved for speed measurement.
Section 137 Road Transport Act 2013 provides:
In proceedings for a speeding offence in which evidence is given of a measurement of speed obtained from an approved traffic enforcement device that is approved for speed measurement, a certificate purporting to be signed by an appropriate inspection officer for the device certifying the following matters is admissible and is prima facie evidence of those matters:
(a) that the device is an approved traffic enforcement device that is approved for speed measurement,
(b) that on a day specified in the certificate (being within the period prescribed by the statutory rules before the alleged time of the offence) the device was tested in accordance with the statutory rules and sealed by an appropriate inspection officer for the device,
(c) that on that day the device was accurate and operating properly.
The law is that a section 137 certificate does not possess a character independently of its contents; it is defined by reference to its contents. Unless its contents meet the statutory description, the statute is not invoked to allow its tender or its use to facilitate proof. A section 137 certificate does not provide prima facie evidence of any of the particulars contained in it, unless it certifies to each of them: Henning v Lynch [1974] 2 NSWLR 254 at 260-1, RTA v Nicholls [2005] NSWSC 946.
A section 137 certificate requires the following elements, that it:
(a)is signed by an authorised officer for the device;
(b)states that the device is an approved traffic enforcement device that is approved for speed measurement;
(c)states that on a day within the relevant period that the device was tested in accordance with the statutory rules and sealed by an approved officer for the device; and
(d)states that on the day of testing it was accurate and operating properly.
The section 137 certificate
The section 137 certificate tendered in the Local Court provided as follows:
I S.Taki being
a Police Officer/ an Appropriate Inspection Officer from the Radar Engineering Unit, certify that(i) The device bearing Serial No LA396 is an appropriate traffic enforcement device that is approved for speed measurement, within the meaning of the Road Transport Act 2013.
(ii) On the 30th day of April 2014 the device was tested in accordance with the regulations made under that Act and sealed by
a Police Officer/ an Appropriate Inspection Officer from the Radar Engineering Unit; and(iii) On that day the device was accurate and operating properly.
SIGNATURE
Sergeant of PoliceSenior ConstableAppropriate Inspection OfficerNSW Police Radar Engineering Unit(italics added)
The appellant’s argument
The appellant contended that the section 137 certificate was defective because where the words “Appropriate Inspection Officer” appeared in it (highlighted in italics), it did not state that the Appropriate Inspection Officer was so designated for a speed measuring device. In the appellant’s argument, the words “for a speed measuring device” are missing after each of the references in the section 137 certificate to “Appropriate Inspection Officer”.
Consideration
The appellant’s argument can be shortly disposed of.
There is a presumption that defined words in a statute have their defined meanings; the presumption should not be displaced without good reason: Qantas Airways Ltd v Chief Commissioner of State Revenue [2008] NSWSC 1049 at [38] per Handley AJ. Interpretation clauses must be interpreted reasonably to promote and not defeat the purposes of the Act that they are designed to elucidate: In re The Fourth South Melbourne Building Society (1883) 9 VLR (E) 54 at 58 per Holroyd J.
It was accepted on behalf of the appellant that he could not go behind the matters certified, including that the author of the certificate was an appropriate inspection officer. In this case, by crossing out all of the references to being a police officer it is clear that the author of the certificate was certifying that he or she was a person authorised by the Commissioner of Police to test an approved traffic enforcement device that measured the speed at which a vehicle was travelling, pursuant to the provisions of sub-paragraph (a)(ii) of the definition.
The author of the certificate was entitled to rely on the statutory definition to prove that he or she was an appropriate inspection officer for the speed measuring device and that the relevant testing was carried out by him or her or another appropriate inspection officer.
The words “for the device” in section 137 still had work to do in the context of section 137 because they were a necessary reference to the particular device. The reference to “a device of that kind” is contained in the definition of appropriate inspection officer, whereas the reference to the specific device is contained in section 137 that provides for the issue of a certificate for use as evidence of the accuracy of the particular device used by the police to measure the speed of the vehicle of interest.
For these reasons I am satisfied that the section 137 certificate provided particulars of all of the matters required by the section and that it was admissible and able to be relied on as prima facie evidence of the speed measurement of the appellant’s vehicle at the time of the offence.
The order that I make is that the appeal against conviction for the offence of exceed speed by more than 45km/hour is dismissed.
I will hear the appellant on the severity appeal.
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