Isen v Newbury
[2019] VSC 157
•18 March 2019
| 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 was functioning properly.
Certificates relied on
In addition to the s 84(1) certificate, the certificates and documents tendered by the prosecution included:
(a) the operator’s authority to operate;
(b) the operator’s set up notes;
(c) a certificate of an authorised person under s 83A of the Act showing photographs of the vehicle and recording the vehicle’s speed;
(d) a certificate of an authorised person under s 83A of the Act relating to the road safety camera known as the Gatsometer Radar 24-GS11 including the operating instructions;
(e) a certificate under s 83 of the Act relating to the testing of road safety camera number DRG111; and
(f) an incomplete nomination statement and objection signed by the appellant.
The operator’s authority to operate safety cameras included an authority to operate the Gatsometer Radar 24-GS11. The certificate under s 83A of the Act showed the photographs of the vehicle and stated that the Gatsometer Radar 24-GS11 was a prescribed road safety camera as defined in the Act.
The camera operator’s set up notes contained a certificate by the operator that the Gatsometer Radar 24-GS11 camera system was set up and operated in accordance with the appropriate instructions pursuant to reg 40 of the Road Safety (General) Regulations 2009 (Vic) (‘the General Regulations’).
Under reg 30(o) of the General Regulations, the Gatsometer Radar 24-GS11 is a prescribed road safety camera for the purposes of s 3(1) of the Act.
Certificates as to registration
Roads Corporation is the body corporate incorporated under s 80 of the Transport Integration Act 2010 (Vic).
The certificate under s 84(1) of the Act issued by VicRoads is set out below:[1]
[1]The VicRoads logos and some details including the VicRoads ABN were also specified on the certificate.
State of Victoria
ROADS CORPORATION
Road Safety Act 1986
Certificate under Section 84(1)
CERTIFICATE AS TO REGISTRATION IN CERTAIN NAME
This is to certify that on 5/12/2017 a vehicle with the details set out below was registered to:
Name : HAKAN ISEN
Residential Address : [specified]
Postal address :
Vehicle details
Vehicle registration number : ZGD877
and Check digit : 4
Colour/Year/Make/Type : GREY 2012 B.M.W. SEDAN
Serial number : [specified]
VIN/Chassis number : [specified]
Engine number : [specified]
Expiry date : 15/01/2018
Axles :
GCM, GVM, Tare mass : [specified]
(values in kg)
Cubic capacity (motor cycle) :
Category/Rate code : VJ
Learner approved motorcycle : No
(LAM)
Varuna Weerasekera
Group Manager
Records Services Division
Victoria Police
An authorised person for the purposes of s84 of the Road Safety Act 1986
On : 23/7/2018
Userid : [specified]
Ground of appeal
The appellant relies on one ground of appeal which raises two issues:
(a) The certificate purporting to be issued under section 84(1) failed to comply with the provision and was therefore inadmissible.
(b) There was no evidence before the court that the appellant was responsible for the vehicle at the time of the alleged offence.
Appellant’s submissions
The appellant submitted:
(a) the s 84(1) certificate was invalid and did not prove that the appellant was the registered operator of the vehicle; and
(b) the Magistrate could not have been satisfied on the evidence that the vehicle’s speed had been measured using a prescribed speed measuring device.
Respondent’s submissions
The respondent submitted:
(a) the s 84(1) certificate was valid, and sufficient to establish that the appellant was the responsible person and therefore the registered operator of the vehicle; and
(b) there was admissible evidence before the Court that the speed camera used to photograph the vehicle was a prescribed road safety camera.
Relevant provisions of the Act
Part 6AA of the Act establishes an ‘operator onus’ system for certain offences involving motor vehicles. It applies to offences where the identity of the person driving, or in charge of the motor vehicle is not established of the time the offence is committed.[2] It was not disputed that the speeding charge in this proceeding was an operator onus offence.[3]
[2]Act s 84BA.
[3]Road Safety Road Rules 2017 (Vic) r 20(2).
Section 84BC of the Act provides:
Operator onus offences
(1)…the person who at the time of the offence is the responsible person in relation to the motor vehicle… is guilty of the offence as if that person were the driver or person in charge (as the case requires) of the motor vehicle… at that time.
…
(3) The operator of a motor vehicle… only ceases to be the responsible person in relation to the motor vehicle… if another person is the responsible person in relation to that vehicle… by force of section 84BE or 84BF.
Section 3 of the Act defines ‘registered operator’ as ‘the person recorded on the register as the person responsible for the vehicle.’ It also defines ‘the register’ as ‘the register of vehicles maintained in accordance with the regulations.’
Section 5 set out the purposes of registration. The relevant purpose is found in s 5(c), which is to provide a method of establishing the identity of each motor vehicle which is used on a highway and of the person who is responsible for it.
Section 84(1) of the Act provides:
A certificate containing the prescribed particulars purporting to be issued by the Corporation… or an authorised person certifying as to any matter which appears in or can be calculated from the records kept by the Corporation… or a delegate of the Corporation… 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.
Section 84BB relevant defines ‘responsible person’ in relation to a motor vehicle at the time of the offence to mean ‘the operator of the motor vehicle’. Section 84BB also defines ‘operator’ at the time of an offence to mean:
(a)the registered operator of the motor vehicle… at that time or the person recorded at that time on a register of vehicles maintained under a corresponding law as the person responsible for the motor vehicle…;
…
(d)if the motor vehicle… displays a number plate—
(i)the person who, at the time at which the registration number borne by that number plate was last assigned by the Corporation… was the registered operator of… the motor vehicle… to which that registration number was assigned, whether or not that motor vehicle… is the same as the motor vehicle… involved in the offence; or
(ii)the person whose name is disclosed in the records kept by the Corporation … as being entitled, or last entitled, at that time to use or possess that number plate.
…
The registration system
The Road Safety (Vehicles) Regulations 2009 (Vic) (‘the Vehicle Regulations’) establish the registration system for motor vehicles and trailers used on highways in Victoria. Regulation 38 of the Vehicle Regulations sets out the information that must be recorded in the register. The information that must be recorded in the register for a registered vehicle includes the name of the vehicle’s registered proprietor and a list of information concerning the vehicle. A vehicle cannot be registered in the name of more than one person.[4]
[4]Vehicle Regulations reg 22.
The prescribed particulars for a s 84(1) certificate are found in reg 6(1) of the General Regulations. Regulation 6(1) provides:
A certificate under section 84(1), (3) or (4A) of the Act must, in addition to the matters referred to in section 84(1), (3) or (4A), contain the following particulars—
(a) the expression ‘Road Safety Act 1986’; and
(b)the expression ‘Certificate under section 84(1)’, ‘Certificate under section 84(3)’ or ‘Certificate under section 84(4A)’, as the case may be; and
(c) the name and official title of the person issuing the certificate; and
(d)in the case of a certificate issued by an authorised person, a statement to that effect; and
(e) the date on which the certificate is issued.
Meaning of registration
The term ‘registration’ is a familiar term. In its ordinary Macquarie dictionary meaning, registration means ‘the act of registering’ or ‘an entry in a register’. In its ordinary Macquarie dictionary meaning, ‘register’ means ‘a book in which entries of acts, occurrences, names, or the like are made for record’. In its second and third meanings, it means ‘any list of such entries; a record of acts, occurrences, etc.’ ‘an entry in such a book, record or list’.[5]
[5]Macquarie Dictionary (7th Ed, 2017) ‘registration’ ‘register’.
Is the s 84(1) certificate effective?
The appellant submitted that:
(a)the s 84(1) certificate failed to state that it certified as to a matter ‘which appears in or can be calculated from the records kept by the Roads Corporation’; and
(b)the certificate did not state that the appellant was the registered operator of the vehicle.
Section 84(1) must be construed having regard to the purpose of the registration system, particularly the purpose of identifying the person responsible for each motor vehicle which is used on a highway.
As no information derived by calculation is contained in the s 84(1) certificate, the first submission reduces in substance to whether the certificate must state that it certifies as to a matter ‘which appears in the records kept by the Roads Corporation.’
Relevant authority
The adequacy of certificates was considered in DPP v Korybutiak.[6]The Court of Appeal said that the case was to be determined by a common sense reading of the whole of the notice.[7] Later, the Court said:
Notwithstanding this plain error, the question remains whether, on a proper construction of the legislation and the infringement notice, it can be said that the impugned infringement notice satisfies the relevant statutory requirements. So far as is relevant, their underlying purpose is to ensure that the recipient of the notice, who wants to challenge its allegations in the courts, knows from a sensible reading of the materials to whom, and to what address, he or she can direct the notice so as to trigger the operation of s 89A(6) of the Act. In my view, for the reasons I now give, I consider that a sensible reading of the whole of the notice in question meets these legislative requirements and their underlying purpose.[8]
[6][2004] VSCA 29 (Winneke P, Chernov JA, Bongiorno AJA).
[7]Ibid [3].
[8]Ibid [9] (emphasis in original).
The Court of Appeal found that the form of the notice left much to be desired, but that the certificate was sufficient.[9]
[9]Ibid [11].
In Tsolacis v McKinnon, Cavanough J reviewed a certificate which suffered from many defects. [10] Firstly, the certificate stated that it was a certificate under s 84 but did not indicate under which of s 84(1), (3) or (4A) it was made. Secondly, the certificate did not expressly assert that the alleged unregistered status of the vehicle on the date of the offence, was a matter that appeared in, or could be calculated from any of the specified records. A third defect was that the signatory of the certificate was not obviously connected with the agencies referred to in s 84(1). A fourth defect was that the purported certificate was non-compliant as it did not contain any of the three expressions referred to in reg 6(1)(b) of the General Regulations.[11] Finally, the certificate did not make any express reference to s 84(1), or state that the information in the certificate had come from records kept by the Roads Corporation, the Department of Transport or an authorised person.[12]
[10](2012) 38 VR 260.
[11]Ibid 268 [35].
[12]Ibid 273 [47].
Cavanough J found that the certificate failed to contain the prescribed particulars, and did not to comply with s 84 of the Act. The certificate was held inadmissible.[13]
[13]Ibid 262 [8], 269 [36].
Issue 1 - Compliance with s 84(1)
The certificate in the present case is headed ‘Roads Corporation’ in italics, and plainly presents as a Roads Corporation document. It bears the VicRoads logo and refers to VicRoads in large print above its heading. It refers to VicRoads and states VicRoads ABN number in its footer.
The certificate is headed a ‘certificate as to registration in a certain name’, and certifies that on the relevant date the vehicle was registered to the appellant. It contains a list of vehicle details and is signed by the group manager of the ‘Records Services Division’ of Victoria Police as an authorised person under the Act.
Applying a common sense approach, the language and substance of the s 84 certificate as to registration are consistent only with the conclusion that the certifying officer is setting out details from the registration records of the Roads Corporation. There is a reference to ‘registration’ in the heading, and in the body of the certificate the vehicle is certified as registered in the appellant’s name. Even though the certificate does not expressly state that the matters in the certificate appear in the records of the Roads Corporation, no other conclusion is open on a fair reading of the certificate.
While the relevant statutory words ‘which appears in the records kept by Roads Corporation’ are not used, it is the inevitable inference and consequence of the words and symbols found on the face of the certificate that this was so. A common sense appreciation of the certificate would be that the certificate was given by the Records Services Division General Manager as an authorised officer under the Act, from the register of vehicles maintained by the Roads Corporation. There is no uncertainty or ambiguity. For these reasons, I find that the certificate was validly given under s 84(1) of the Act.
Conclusion
I find that it was open to the Magistrate to conclude that the s 84(1) certificate is effective and does comply or sufficiently comply with the requirements of the Act and the Regulations.
Regulation 6(1) requirements
The certificate plainly satisfies the requirements of reg 6(1).[14] The contrary was not contended. It is clearly expressed to be a certificate under s 84(1), and refers to the Act in its heading. It uses the expression ‘Certificate under Section 84(1)’, and bears the name and official title of the person issuing the certificate. The certificate contains a statement that the person issuing the certificate was ‘An authorised person for the purposes of s 84 of the Road Safety Act 1986’. The date on which the certificate was issued is also plainly stated.
[14]General Regulations reg 6(1).
Issue 2 - Registered operator
Section 3 of the Act defines ‘registered operator’ to be the person recorded on the register as to person responsible for the vehicle. Under reg 38 of the Vehicle Regulations, the information recorded in the register of vehicles includes the name of the vehicle’s registered operator.
Section 84BB of the Act defines ‘responsible person’ as the operator of the motor vehicle. It defines ‘operator’ to mean the registered operator of the motor vehicle at the time, and if the motor vehicle displays a number plate the person whose name is disclosed in the records kept by the Corporation as being entitled at that time to use or possess that number plate.
The s 84(1) certificate established that the vehicle was registered in the name of the appellant as at the date of the offence. As a result, the s 84(1) certificate showed the appellant to be the responsible person for the vehicle, and the registered operator of the vehicle for the purposes of the Act. It was not suggested that any other person was the responsible person for the vehicle at the time of the offence.
Conclusion
Given the effect of all of these provisions, I find that it was open to the Magistrate to conclude that the s 84(1) certificate was sufficient to establish that the appellant was the operator, the registered operator, and the person responsible for the vehicle at the time of the offence.
Issue 3 - Prescribed speed monitoring device
The Gatsometer Radar 24-GS11 is a prescribed road safety camera under the regulations.[15] The operator gave evidence that he was authorised to operate such a camera and did so using camera number DRG111 at the place and time in question.
[15]General Regulations reg 30(o).
Certificates as to the testing of this camera, and photographs taken by the camera were provided to the Magistrate. The evidence of the operator and the evidence contained in the certificate was ample to demonstrate that the camera used by the operator was a prescribed road safety camera under the regulations.
I find that it was open to the Magistrate to conclude as he did that the vehicle’s speed was measured using a prescribed speed measuring device.
Conclusion
For these reasons the ground of appeal fails. The proceeding will be dismissed.
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