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:

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.

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

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.

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.

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.

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.

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.

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…

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 Kirchner v Frede

Details

AGLC: Kirchner v Frede [2011] VSC 531
Case: [2011] VSC 531
Decision Date: 13 October 2011

CaseChat Overview and Summary

The case of Kirchner v Frede dealt with an alleged road traffic offence where the defendant, Kirchner, was charged with exceeding the speed limit. The dispute centred on whether the speed detection device used by the police to record the offence complied with statutory requirements. The matter was heard in the Magistrates' Court of Victoria. Kirchner contested the charge on the basis that the speed detection device was not properly calibrated or maintained, thus failing to meet the necessary statutory standards. The prosecution accepted that the speed detection device was not functioning correctly but argued that the admission of Kirchner, who acknowledged exceeding the speed limit, was sufficient to prove the offence.

The legal issues before the court were whether the admission of speeding could substitute for the statutory requirement of a properly functioning speed detection device, and if the absence of evidence showing that Kirchner's speed exceeded the legal limit meant the charge should be dismissed. The court had to determine the admissibility of the speed detection device evidence and whether the prosecution could rely on Kirchner's admission to establish guilt.

The court found that the speed detection device did not meet the statutory requirements, and thus, its evidence was inadmissible. However, the court held that Kirchner's admission of exceeding the speed limit was sufficient to prove the offence. The court emphasised that where a driver admits to speeding and there is no evidence to the contrary, the charge can be sustained. Consequently, the court found Kirchner guilty of the speeding offence but reduced the penalty due to the procedural errors in the use of the speed detection device. The final orders included a conviction for speeding and a penalty adjustment reflecting the procedural shortcomings.

Orders