Isen v Newbury - [2019] VSC 157

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 01875

HAKAN ISEN	Appellant
v
DAVID NEWBURY	Respondent

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2019
DATE OF JUDGMENT:	18 March 2019
CASE MAY BE CITED AS:	Isen v Newbury
MEDIUM NEUTRAL CITATION:	[2019] VSC 157

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ADMINISTRATIVE LAW – Appeal on a question of law from the Magistrates’ Court – Appeal by person convicted of speeding offence – Road Safety – Mobile road safety cameras – Whether speed measuring device prescribed by Road Safety (General) Regulations2009 (Vic) – Whether certificate properly issued in compliance with s 84(1) of the Road Safety Act 1986 (Vic) – Whether certificates showed that the appellant was responsible for the offending vehicle – Road Safety Act 1986 (Vic) ss 3, 5, 84(1), 84BB, 84BC – Road Safety Road Rules 2017 (Vic) r 20 – Road Safety (Vehicles) Regulations 2009 (Vic) reg 38 – Road Safety (General) Regulations 2009 (Vic) regs 6(1), 30(o).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S Hardy	The Law Offices of Barry Fried
For the Respondent	Ms K Argiropoulos	Office of Public Prosecutions

HIS HONOUR:

Introduction

Hakan Isen (‘the appellant’) was found guilty of driving a vehicle (‘the vehicle’) on 5 December 2017 at a speed of 102 km/h in a 60 km/h zone in Ballarat Road, Footscray. His speed was recorded by a road safety camera. He did not attend the hearing of the charge in the Magistrates’ Court at Broadmeadows on 24 September 2018. He was fined $500 and all licences issued to him under the Road Safety Act 1986 (Vic) (‘Act’) were suspended for six months from 24 October 2018.

During the hearing of the charge the prosecution led evidence from a road safety camera operator, and tendered a number of certificates. They include a certificate under s 84(1) of the Act (‘the s 84(1) certificate’).

Although it was not challenged before the Magistrate, the appellant says that the s 84(1) certificate was not in proper form, and was not admissible to prove that he was the person responsible for the motor vehicle photographed by the road safety camera. If the appellant’s submission is correct, the prosecution fails for want of proof that the appellant was the driver of the vehicle, and the conviction should be quashed.

The appellant appeals to this Court on a question of law under s 272 of the Criminal Procedure Act 2009 (Vic).

The Magistrates’ Court hearing
Operator’s evidence

Mr Donald Griffiths, the mobile road safety camera operator, gave evidence at the hearing. He produced his authority to operate the Gatsometer 24 radar unit. He described how on 5 December 2017 he set up a Gatsometer radar registered serial number DRG111 on Ballarat Road, Footscray between Jamieson Avenue and Geelong Road. The camera photographed the vehicle, recording the vehicle’s speed of 102 km/h in a 60 km/h speed zone. He said that the camera…

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 Isen v Newbury

Details

AGLC: Isen v Newbury [2019] VSC 157
Case: [2019] VSC 157
Decision Date: 18 March 2019

CaseChat Overview and Summary

Isen v Newbury is a case in which the appellant, Isen, contested a speeding conviction in the Magistrates' Court. Isen was issued a penalty notice for a speeding offence captured by a mobile road safety camera. The dispute centred on the validity of the speed measuring device and the legality of the penalty notice issued. The appellant appealed to a higher court on questions of law.

The primary legal issues for the court to decide were whether the speed measuring device used to record the appellant's alleged speeding offence was prescribed by the relevant regulations and whether the certificates issued in relation to the device were properly executed. Additionally, the court had to determine if the certificates accurately identified the appellant as the driver of the vehicle at the time of the offence. These issues were pivotal in assessing the legitimacy of the penalty notice and the subsequent conviction.

The court examined the relevant statutory and regulatory provisions, including sections of the Road Safety Act 1986 (Vic) and the Road Safety (General) Regulations 2009 (Vic). The court concluded that the speed measuring device was indeed prescribed by the regulations, and that the certificates were properly issued. It was found that the certificates correctly identified the appellant as the driver of the vehicle. As a result, the appeal was dismissed, and the conviction was upheld.

No additional orders were made by the court beyond dismissing the appeal. The decision confirmed the appellant's conviction for the speeding offence, reinforcing the legal framework governing the use of mobile road safety cameras and the issuance of penalty notices in Victoria.

Orders