Kirchner v Frede

[2011] VSC 531

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEWS AND APPEALS LIST

S CI 2010 04545

SIMON KIRCHNER	Appellant
v
JASON FREDE	Respondent

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2011
DATE OF JUDGMENT:	13 October 2011
CASE MAY BE CITED AS:	Kirchner v Frede
MEDIUM NEUTRAL CITATION:	[2011] VSC 531

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ROAD TRAFFIC OFFENCE – Failure to prove speed detection device met statutory requirement – Admission of speed sufficient to prove offence – No evidence of speed greater than that admitted – Penalty reduced. 

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S Hardy	Thexton Lawyers
For the Respondent	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

HIS HONOUR:

1. This is an appeal against orders made in the Magistrates' Court at Wodonga on 22 July 2010. On that day, the Magistrate heard a charge laid under r 20 of the Road Safety Road Rules2009.  He fined the appellant the sum of $750, without conviction, cancelled all licences under the Road Safety Act1986 (‘the Act’) and disqualified him from obtaining a licence for a period of 12 months.

1. Mr McArdle has brought to the Court's attention the fact that the charge should have referred to the Road Rules 1999.

1. I will accordingly amend the charge sheet in the summons to refer to the Road Rules 1999 in lieu of the Road Safety Road Rules 2009.

1. The matter proceeded ex parte before the Magistrate and evidence was given by the respondent that on 15 October 2009 he was doing traffic parole duties on what was described as the pre-motorcycle Grand Prix weekend up at Burrowye on the Upper Murray. 

1. The respondent was located on the River Road about two kilometres east of Burrowye at approximately 11:08 am.  The speed limit on the River Road is 100 kilometres per hour and he observed the appellant riding a black motorcycle in a westerly direction.  The respondent checked the appellant's speed with a device described by the respondent as a ‘laser radar PL279’ and measured his speed at 154 kilometres per hour.  The appellant was intercepted and asked about his speed.

1. The respondent gave evidence that the appellant pleaded with him not to do anything or to make it a lower speed than that which he had measured.  The appellant admitted doing 130 kilometres per hour.  The respondent wrote him out a penalty notice in relation to the speed he had measured.

1. The Magistrate then had a discussion with the prosecutor, referring to and identifying a minimum mandatory penalty of 12 months.  He imposed a fine of $750, without conviction, ordered that the appellant's licence be cancelled, that he be disqualified from driving for a period of 12 months and granted a stay of payment on the fine.

1. Section 28 of the Act provides by sub‑s 1(a) that:

In the case of an offence of driving a motor vehicle at speed—

(i)        of 130 kilometres per hour or more; or

(ii)of 25 kilometres per hour or more in excess of that permitted, whether generally or in relation to the particular vehicle or circumstances—

must suspend for such time as the court thinks fit (not being less than the period specified in Column 2 of Schedule 5 [of the Road Safety Act]), all driver licences and permits held by that person…

1. It is apparent by reference to the Schedule that the Magistrate sentenced the appellant on the basis that he was satisfied that he had exceeded the relevant speed limit by 45 kilometres per hour or more, which resulted in a minimum period of suspension of 12 months. 

1. Conversely, if he had been satisfied that the appellant had exceeded the speed limit by 25 kilometres per hour or more, but less than 35 kilometres per hour, the minimum period of suspension applicable would have been one month.

1. The speed admitted by the appellant would fall within this category. 

1. Mr Hardy submits on behalf of the appellant, first, that there was no admissible evidence that the appellant's speed was measured using a prescribed speed detector and, secondly, that even if the evidence given by the respondent were regarded as adequately identifying a prescribed speed detector, there was no evidence that that speed detector was tested, sealed and used in the prescribed manner.

1. He further points to the fact that no certificate was tendered in respect of testing and sealing.

1. Section 79(1) of the Act provides for evidence of speed as follows:

If in any criminal proceedings the speed at which a motor vehicle or trailer travelled on any occasion is relevant, evidence of the speed of the motor vehicle or trailer as indicated or determined on that occasion by a prescribed road safety camera or prescribed speed detector when tested, sealed and 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 speed of the motor vehicle or trailer on that occasion.

1. Section 83 provides for evidence of testing and sealing in the following terms:

A certificate in the prescribed form to the effect that any prescribed speed detector or device referred to in section 79 or 82 has been tested or sealed in the prescribed manner, signed or purporting to be signed by a person authorised to do so by the regulations is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof that the prescribed speed detector or device has been so tested or sealed.

1. It seems to me that Mr Hardy's submission with respect to evidence of the fact that the relevant speed detector was tested and sealed must be accepted.  I put to one side the more contentious question of whether the respondent's description of the type of speed detector he used was adequate to meet the requirement that evidence be given of a prescribed speed detector.  The more fundamental problem seems to me to be that there was simply no evidence that the relevant speed detector was tested and sealed in the prescribed manner, whether by way of certificate under s 83 or otherwise.

1. Once this conclusion is reached, the only evidence of speed before the Magistrate capable of supporting a conviction was constituted by the appellant's admission that he was travelling at 130 kilometres per hour. This was evidence first, of breach of r 20 of the Road Rules and, secondly, of a speed which required a minimum period of suspension in accordance with s 28(1)(a)(i).

1. The net effect of these conclusions is that I am satisfied that the Magistrate erred in law with respect to the penalty imposed by him, but not in finding the matter proved.

1. I have canvassed the conclusions I have reached with respect to this issue with counsel and they have agreed that, on the assumptions which I have identified, the appropriate penalty would be that the appellant's licence be cancelled and he be disqualified for a period of one month from 27 July 2010 and fined $500. 

1. I propose to order that the sentence of the Magistrates' Court be set aside and the sentence that I have just referred to be substituted. 

1. I will substitute for the order made by the Magistrate that, without conviction, the appellant be fined $500 and it be ordered that the appellant's licence be cancelled and he be disqualified from driving in the State of Victoria for a period of one month, the order on the licence being effective from 27 July 2010. 

1. This leaves the question of costs.  Although I accept Mr McArdle's submission that the appellant has failed to obtain the primary order sought in the notice of appeal, namely that the charges laid against him be dismissed, nevertheless it seems to me that the appellant has been substantially successful and, in particular, the questions of law agitated in the notice of appeal have been resolved substantially in his favour.  More particularly, the second question of law has been resolved in his favour, namely: 

Did the Magistrate err in accepting the evidence of the Respondent that he used a ‘laser radar device’ in accordance with the Road Safety Act and regulations in the absence of compliance with s 79 Road Safety Act 1986.

1. It seems to me that in the circumstances it is appropriate that I order that the Chief Commissioner of Police pay the costs of the appeal, including reserved costs, and I will so order.