Guss v Traffic Camera Office
[2017] VSC 654
•27 October 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 01137
| JOSEPH GUSS | Appellant |
| v | |
| TRAFFIC CAMERA OFFICE | Respondent |
---
JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 October 2017 |
DATE OF JUDGMENT: | 27 October 2017 |
CASE MAY BE CITED AS: | Guss v Traffic Camera Office |
MEDIUM NEUTRAL CITATION: | [2017] VSC 654 |
---
JUDICIAL REVIEW AND APPEALS – Appeal from Magistrates’ Court under the Criminal Procedure Act 2009 (Vic) s 272 – Evidence relating to prescribed road safety camera in certificate under s 83A of the Road Safety Act 1986 – Evidence to the contrary – Road Safety Act 1986 ss 3, 66, 81, 83A(1) – Road Safety (General) Regulations 2009 regs 5, 30, 35, 37 – Hobson Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386 (27 August 2010).
---
APPEARANCES: | Counsel | Solicitors |
| Appellant appeared in person | ||
| For the Respondent | Mr S T Russell | Maddocks Lawyers |
HIS HONOUR:
Mr Guss was the registered owner of a motor vehicle (the vehicle) which, in February 2013, was driven through the intersection of Punt Road and Commercial Road, Melbourne (the intersection), turning right from Punt Road into Commercial Road. Traffic turning right at the intersection in the direction taken by the vehicle was governed by a traffic arrow. Images and a message produced by a prescribed road safety camera operating at the intersection are evidence that the vehicle failed to stop before entering the intersection when a red traffic arrow was showing. In March 2013 the Traffic Camera Office (TCO) issued Mr Guss an infringement notice for the offence of entering the intersection when a red traffic arrow was showing. Mr Guss challenged the infringement notice.
In March 2017, Magistrate Mealy convicted Mr Guss of that offence. The evidence supporting conviction was a certificate issued under s 83A(1) of the Road Safety Act 1986 (the RSA) certifying that the prescribed road safety camera was tested, sealed and used in the prescribed manner, and that the images and message were produced by the camera (the s 83A certificate). Mr Guss appeals to this Court from that conviction arguing first that the s 83A certificate was insufficient to prove the offence because there are other elements of the system used to detect motorists failing to obey traffic signals at the intersection and no evidence was led that the other elements of the system were tested and used in the prescribed manner, and secondly that he led evidence to the contrary of the content of the s 83A certificate which the Magistrate should have concluded raised reasonable doubt, and should have led to acquittal.
Background facts and proceeding summary
At 7.25 pm on 21 February 2013, the vehicle travelled north along Punt Road and turned right at the intersection onto Commercial Road. A Gatsometer GTC-GS11 (the camera) was activated and took two images of the vehicle as it entered and proceeded into the intersection.
The s 83A certificate was prepared containing the two images and a message produced by the camera. The images and message in the s 83A certificate are evidence that the traffic arrow applying to the vehicle was showing red for 1.1 seconds before the vehicle entered the intersection.
A certificate in relation to registration of the vehicle was produced under s 84 of the RSA and confirmed that Mr Guss was the registered operator of the vehicle at the relevant time for the purposes of the RSA.
Relying on the two certificates the TCO issued an infringement notice to Mr Guss for the offence of entering the intersection when a red traffic arrow was showing.
Mr Guss challenged the infringement notice. After some delay that matter came for trial before Magistrate Mealy on 3 March 2017. Mr Guss conceded he was the driver of the vehicle. At trial Mr Guss argued that the content of the s 83A certificate was an insufficient basis to find the charge proved because the certificate related only to the camera, and not to the camera system including the vehicle detectors which result in the camera being activated. In order to establish the existence and relevance of the broader camera system and vehicle detectors, Mr Guss sought at trial to tender the following documents:
(a) a brochure which Mr Guss said he downloaded from a website titled, ‘Gatso GS11 digital camera’; and
(b) a document which Mr Guss said he downloaded from a Victorian government website titled, ‘cameras save lives’.
The prosecutor opposed tender of the two documents. Magistrate Mealy refused Mr Guss’ application to tender the documents on the ground that they did not contain relevant evidence. Mr Guss gave evidence at trial that when he entered the intersection, the traffic arrow was showing green.
Relying on the s 83A certificate, Magistrate Mealy found the charge proved.
Relevant legislation
The parties agree that the offence Mr Guss was charged with was a prescribed offence under s 66 of the RSA. Section 80 of the RSA deals with evidence relevant to the proof of such an offence, and reads:
(1)If in proceedings for an offence to which section 66 applies the fact that the driver of the motor vehicle or trailer disobeyed a traffic signal or drove the motor vehicle or trailer in a particular portion of a highway on any occasion is relevant, evidence of that fact as indicated or determined on that occasion by—
(a) a prescribed road safety camera; or
(b)an image or message produced by a prescribed road safety camera or by a prescribed process—
when used in the prescribed manner is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the fact that the driver of the motor vehicle or trailer disobeyed a traffic signal or drove the motor vehicle or trailer in that portion of the highway on that occasion.
Pursuant to s 83A, a certificate is admissible as evidence relating to the prescribed road safety cameras. Section 83A reads:
(1)A certificate containing the prescribed information purporting to be issued by an authorised person certifying—
(a)that a prescribed road safety camera was tested, sealed or used in the prescribed manner; or
(b)that an image or message described in the certificate was produced by a prescribed road safety camera or by a prescribed process; or
(c)as to any other matter that appears in, or that can be determined from, the records kept in relation to the prescribed road safety camera or the prescribed process by Victoria Police—
is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate.
(2)In this section authorised person means a person authorised for the purposes of this section by the Chief Commissioner of Police.
Definitions contained in s 3 of the RSA include:
prescribed road safety camera means a type or class of road safety camera that is prescribed by regulations for the purposes of this Act;
road safety camera means a system consisting of a camera and associated equipment that is used or intended to be used for the purpose of detecting the commission of offences against this Act or regulations made under this Act;
The camera is a prescribed road safety camera pursuant to reg 30 of the Road Safety (General) Regulations 2009 (the RS Regulations), which in its relevant parts reads:
For the purposes of the definition of prescribed road safety camera in section 3(1) of the Act, the following camera systems are prescribed—
…
(p) the camera system known as the Gatsometer GTC-GS11; …
Regulation 5 of the RS Regulations includes the following definitions:
fixed digital RSC means a road safety camera prescribed in regulation 30(d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (p) or (q);
vehicle detector means a part of a road safety camera that detects the presence of a vehicle.
The prescribed manner of testing a road safety camera is governed by reg 35, which reads, in its relevant parts:
For the purposes of sections 81, 83A(1) and 84(7) of the Act, a fixed digital RSC is tested in the prescribed manner if the testing officer who tests the system—
(a)is satisfied that the system is in a satisfactory electrical condition and, in particular, that any maintenance carried out on the system has been carried out in a satisfactory manner;
Use of a road safety camera in the prescribed manner is governed by reg 37, which reads, in its relevant parts:
For the purposes of sections 80, 80A, 81, 83A(1) and 84(7) of the Act, a fixed digital RSC is used in the prescribed manner if—
…
(b)the vehicle detectors have been placed in position as specified by a manufacturer of fixed digital RSCs or by a party who distributes or maintains them; and …
(d)a person placing or removing the speed calculation unit or the RSC or switching on or resetting the RSC after it has been inoperable for any reason—
(i)checks the time, date and location code and makes any corrections that may be necessary to ensure that the correct data is recorded in the digital file; and
(ii)checks that the vehicle detectors are correctly responding to the movement of vehicles at the location; and
(iii)ensures that when the speed calculation unit (if any) and RSC are installed and left unattended they are kept in one or more locked housings.
Grounds of appeal
Mr Guss has a right to appeal to this Court from the decision of Magistrate Mealy on a question of law only.[1] The grounds of appeal on which Mr Guss relies are:
[1]Criminal Procedure Act 2009 s 272.
1.The [learned magistrate] was wrong in law in deciding that the requirements for proving the alleged infringement when the appellant’s vehicle entered the said intersection after 1.1 seconds had elapsed since the light turned red on 21 February 2013 had been met under the provisions of the Road Safety Act 1986 (the Act) and the Road Safety (General) Regulations 2009 (the Regulations) having regard to the provisions of Regulations 5, 6.30, 35, 37, 47 and 52 and having regard to the evidence led by the parties at the hearing.
2.The learned magistrate was wrong in law in refusing to allow the appellant to tender:
i.The relevant pages concerning the Road Safety Camera and method of operation thereof downloaded from the official Victorian Government website, and,
ii.The manufacturer of the camera, Gatso CS11 digital camera alleged by the informant to be installed at the said intersection at the said date of the alleged infringement (21 February 2013), namely, Gatsometer BV, brochure on the said camera which describes the said camera, [its] operations, and the way it is triggered to detect an offending vehicle.
3.The decision of the learned magistrate was against the evidence and the weight of the evidence led by the appellant, and contrary thereto.
4.As a result the [learned magistrate] should have held that no infringement has been proved and should have dismissed the charge.
Submissions
Mr Guss
Mr Guss submitted, first, that the s 83A certificate was directed only to the Gatsometer GTC-GS11 camera itself, and not to the broader camera system including the vehicle detectors, which led to the camera being activated. Secondly, in order for the offence to be proved, it was necessary that evidence be led that the entire camera system, including the vehicle detectors, was tested and used in the prescribed manner. Mr Guss relied on reg 35 of the RS Regulations, which requires that the testing officer ‘is satisfied that the system’ is in a satisfactory condition and that maintenance has been carried out in a satisfactory manner. Further, Mr Guss relied on reg 37, which requires that for the road safety camera to be used in the prescribed manner, the vehicle detectors must be placed in the specified position, and checked as responding correctly to the movement of vehicles. Mr Guss sought to rely on two documents at trial which he submitted demonstrated the broader camera system and the vehicle detectors, and explained the requirements for testing and use of those aspects of the system. He submitted Magistrate Mealy erred in refusing to allow those documents to be tendered into evidence. Thirdly, that because no evidence was led in the Magistrates’ Court that the camera system and the vehicle detectors were tested in the manner prescribed by reg 35 and used in the manner prescribed by reg 37 the charge should have been dismissed. Fourthly, Mr Guss submitted that evidence given by him at trial to the effect that the traffic arrow was showing green when he entered the intersection was evidence to the contrary of the images and message contained in the s 83A certificate. Fifthly, Mr Guss submitted the evidence given by him ‘was sufficient in this case to displace the prima facie “proof” of the section 83A certificate’, and should have led to the charge against him being dismissed.
Traffic Camera Office
The TCO submitted, first, that a proper reading of the s 83A certificate and the legislation leads to the conclusion that the certificate was directed to the camera, including the camera system and the vehicle detectors. Secondly, the s 83A certificate contained evidence that the camera, including the camera system and the vehicle detectors, were ‘tested, sealed and used in the prescribed manner’. Thirdly, this meant that the content of the s 83A certificate was sufficient evidence to prove the offence.
Fourthly, Magistrate Mealy found the charge proved after hearing the evidence of Mr Guss that when his vehicle entered the intersection the traffic arrow was showing green. Despite that evidence, Magistrate Mealy was entitled to be satisfied beyond reasonable doubt, on the basis of the evidence contained in the s 83A certificate, that the offence was proved.
Analysis
Grounds 1 and 2 - The s 83A certificate
The submission of Mr Guss that the s 83A certificate did not satisfy the requirements of regs 35 and 37 of the RS Regulations is without merit and should be rejected. The certificate relevantly reads:
Road Safety Act 1986
Road Safety (General) Regulations 2009
Certificate of an Authorized Person under Section 83A Road Safety Act 1986
(a)On 21/02/2013 the Gatsometer GTC-GS11 was a prescribed road safety camera as defined in the Road Safety Act 1986 and was tested, sealed and used in the prescribed manner and produced the images produced in printed form in paragraph (c)
(b)The printed images and messages, set out in paragraph (c) were produced by a process prescribed for the purposes of section 80 of the Road Safety Act 1986
(c)Printed Images and Messages:
…
The certificate contains images of the vehicle entering the intersection and in the intersection. In each image the traffic arrow applicable to the vehicle is showing red. The message recorded in the certificate reads:
At the intersection of Punt Road and Commercial Road, Melbourne in lane 3 from the left for the vehicle direction of travel on 21/02/2013 at 7:25:06 pm. When vehicle entered intersection 1.1 seconds had elapsed since light turned red.
The certificate is certified by an authorised person as required by s 83A.
The content of the certificate complies with the requirements of s 83A of the RSA. The camera which produced the images and message is identified as a prescribed road safety camera as defined in the RSA. The Act defines a prescribed road safety camera to mean a type or class of road safety camera prescribed by the Regulations. Road safety camera is defined in the RSA to mean ‘a system consisting of a camera and associated equipment’. The RS Regulations define a vehicle detector as part of a road safety camera. Pursuant to reg 30, prescribed road safety cameras are ‘camera systems’, including ‘the camera system known as the Gatsometer GTC-GS11’. The effect of these provisions of the Act and of the Regulations is that a prescribed road safety camera includes the camera system and vehicle detectors. Therefore, reference in the s 83A certificate to the Gatsometer GTC-GS11 is a reference to the Gatsometer GTC-GS11 camera system, to which the vehicle detectors are a part. The s 83A certificate is evidence that the camera was tested and used in the prescribed manner. The manner of testing is prescribed by reg 35. Certification that the camera was tested in the prescribed manner is certification that the camera, including the camera system, was tested as prescribed in satisfaction of reg 35. The manner in which the camera is used is prescribed by re 37. Certification that the camera was used in the prescribed manner is certification that the vehicle detectors were placed in position as specified, and that the vehicle detectors were correctly responding to the movement of vehicles at the location, satisfying the requirements of reg 37.
The two documents on which Mr Guss sought to rely, to which I have previously referred, take the matter no further. Mr Guss sought to tender the documents to establish the existence of the broader camera system and the vehicle detectors to support his submission that it was necessary, in order to prove the offence, that evidence be led that all elements of the camera system were tested and used in the prescribed manner. The TCO accepts the need for such evidence, but submits that the s 83A certificate satisfies that evidentiary requirement. I agree.
For these reasons I conclude the appeal fails on Grounds 1 and 2.
Ground 3 - Evidence to the contrary
At trial before Magistrate Mealy, Mr Guss gave the following evidence:
A:Your Honour, I am the owner of that motor car that’s in the evidence, and I was the driver at the requisite time. I say that when I entered the intersection, the arrow was showing green, and it obviously was shown in the photo turned to red.
Q: Sorry, would you say that last again?
A:And as the photo shows that it obviously turned to red. I have been to that intersection a number of times since, last time a few weeks ago. And my timing was that there was a time of approximately two seconds; I didn’t have a stopwatch so I can’t be more accurate than two seconds, from the light turning green to red. The arrow, from Punt Road turning right into Commercial Road. The photo shows, well says, that it was 1.1 seconds into red. I say quite clearly that I did not enter the intersection with the arrow red when I entered it to turn right. I just don’t run red lights.
Magistrate Mealy found the charge proved and provided the following reasons:
The certificate that has been tendered asserts that the Road Safety Camera was tested in accordance with the Road Safety (General) Regulations 2009 on 13 June 2012. The test confirmed that the device was operating correctly, in accordance with the requirements of those regulations, and that the device has been properly sealed in accordance with those regulations. I am satisfied that the certificate i.e. its terms, asserts that the road safety camera Gatsometer GTC-GS11 was tested in the prescribed manner.
On the available material, the camera is part of a system. The camera cannot, as Mr Guss submits, function unless the rest of the system on which it relies is operating satisfactorily. The certificate, therefore, is to the effect that the system was operating correctly under the regulations. This has application to the requirements of regulation 35, which details the testing of the system; and in relation to regulation 37, insofar as the detectors associated with the road safety camera here enabled the camera to function correctly. I find the charge proved.
Mr Guss submitted that he was not challenged on his evidence that the traffic arrow was showing green when his vehicle entered the intersection, and that his evidence ‘raised reasonable doubt’ in relation to the offence. He submitted on that basis that the Magistrate should not have found the charge against him proved.
The TCO accepted that the evidence given by Mr Guss was evidence to the contrary of the content of the s 83A certificate. However, the TCO submitted, relying on a decision of Osborn J in Hobsons Bay City Council v Viking Group Holdings Pty Ltd[2] that it was open on the evidence for Magistrate Mealy to conclude as he did, and to find the charge proved. In Hobsons Bay Osborn J considered the function of the Court on an appeal such as this, and said:
[19]The right of appeal to this Court from final orders within criminal proceedings of the Magistrates’ Court is one on questions of law only.[3] Accordingly, just as it is not open to challenge the weight given to relevant factors in reaching a conclusion of fact, it is not open to challenge the weight given to relevant factors bearing on the exercise of a discretion.[4] The critical question is whether it was open to the Magistrate to conclude as he did having regard to relevant factors.[5]
…
[42]In order to succeed in an appeal of this type the appellant must satisfy the Court that the Magistrate’s decision was vitiated by reason of the matters to which he or she had regard, or that the decision was simply not open to him or her.
[2][2010] VSC 386 (27 August 2010) (‘Hobsons Bay’).
[3]Criminal Procedure Act 2009 s 272(1).
[4]Secombs (a firm) v Sadler Design Pty Ltd [1999] VSC 79 (24 March 1999) [58]-[59]; Transport Accident Commission v Hoffman [1989] VR 197, 199.
[5]S v Crimes Compensation Tribunal [1998] 1 VR 83, 89 (Phillips JA).
The s 83A certificate is evidence that the traffic arrow was showing red for 1.1 seconds before the vehicle entered the intersection. Against that was the evidence of Mr Guss, given some four years after the event, that his recall was that the traffic arrow was showing green when his vehicle entered the intersection. The s 83A certificate was put into evidence before Mr Guss gave evidence. Mr Guss knew the case put against him. It was not necessary that there be any further challenge to his evidence. It was a matter for the Magistrate to weigh the evidence. The Magistrate accept the evidence in the s 83A certificate, and I infer, rejected the evidence of Mr Guss as to his observations. It was open to him to do so. In my view, Ground 3 has no merit and should be rejected. Ground 4 is a summary ground, and does not advance Mr Guss’ appeal.
Conclusion
I have concluded that the grounds upon which Mr Guss relies in support of this appeal are without merit. I will dismiss the appeal. I will hear from the parties as to any consequential orders.
0
2
0