Kozyrski v Hodgson
[2012] WASC 421
•13 NOVEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: KOZYRSKI -v- HODGSON [2012] WASC 421
CORAM: EM HEENAN J
HEARD: 7 AUGUST 2012
DELIVERED : 13 NOVEMBER 2012
FILE NO/S: SJA 1050 of 2012
MATTER :Criminal Appeals Act 2004 Pt 2
AND
Prosecution Notice No PE 37491/11 in the Magistrates Court of Western Australia at Perth
BETWEEN: ZACHARY ALEXANDER KOZYRSKI
Appellant
AND
PAUL RICHARD HODGSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE G CICCHINI
File No :PE 37491 of 2011
Catchwords:
Application for leave to appeal against conviction - Road Traffic Code 2000 reg 11(3) - Speeding - Application to adduce further evidence - Temporary traffic speed sign - Temporary roadwork - Authority to erect temporary speed control sign - Whether authorisation for particular speed control sign - Requirements for valid speed control or traffic signs - Power of Commissioner of Main Roads - Ability to delegate power
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Freedom of Information Act 1992 (WA)
Main Roads Act 1930 (WA)
Road Traffic Code 2000 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms S J Teoh
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
De La Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Lyster v Kemp [2010] WASC 47
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Re State of Western Australia; Ex parte Worswick [2005] WASCA 187
Rinaldi v State of Western Australia [2007] WASCA 53
Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
EM HEENAN J: Mr Kozyrski, the present applicant, was charged with exceeding the speed limit in a speed zone on 29 May 2011 at Mirrabooka by driving a vehicle registered number 1ATH804 on a road, namely Reid Highway, within a speed zone, where the numerals on the restricted sign at the beginning of the speed zone indicated a speed of 60 km per hour, by driving that vehicle at a speed in excess of that shown on the restricted sign, namely 94 km per hour. He pleaded not guilty and was tried before his Honour, Magistrate G Cicchini in the Magistrates Court at Perth and convicted. He was fined $700 and ordered to pay costs of $121.95 and lost five demerit points.
The evidence at the trial established, and it was not disputed, that Mr Kozyrski was driving a motor vehicle in Reid Highway, Mirrabooka, on the date alleged and was detected and recorded by a radar speed device as travelling at 94 km per hour. The speed limit on Reid Highway in the general area, not at the point where Mr Kozyrski was driving at the time, is 90 km per hour. At the time of the alleged offence major road works were being carried out for the construction of the Reid Highway, Alexander Drive and Mirrabooka Avenue overpass and traffic interchange at Mirrabooka Avenue, which had resulted in the special speed zone, both before and after the road works and bridge works being established. Special speed limit signs reducing the speed limit to 60 km per hour had been erected at the approach to these works and the reduced speed limit so imposed applied from the commencement of that zone where the first 60 km per hour sign was erected, to some distance on the other side of the road and bridge works. This reduction in speed limit applied to traffic travelling in both directions approaching the interchange and road works.
The issue before the learned magistrate, and again in this court raised by the applicant, was whether or not those temporary 60 km per hour speed limit signs so erected were valid or efficacious to impose the reduced speed limit alleged. His Honour held that they were.
From his conviction the appellant applies for leave to appeal on five proposed grounds namely:
1.The Magistrate erred in his finding, arriving at a decision without proper evidence to support it.
2.Fresh evidence will be available once Main Roads WA respond to my freedom of information request.
3.The speed zone in question was placed on Reid Highway by a private contractor whose traffic management signs were not in accordance with Main Roads WA requirements.
4.The Magistrate erred in his finding that it was irrelevant that the private contractor had not complied with Main Roads WA's requirements when reducing the speed zone on Reid Highway.
5.The Magistrate erred in his finding, in that even though he acknowledged that I did not see the changed speed zone while driving at night that I was still guilty because the police had proven that there was a 60 kp/h speed zone in place.
By an order for directions made on the papers on 31 May 2012 Hall J granted a short extension of time in which to apply for leave to appeal and directed that the application for leave to appeal and the application to adduce fresh evidence should be heard together and at the same time as the appeal. Other usual procedural directions were also made.
As the second proposed ground of appeal indicates, the applicant has made approaches to the Main Roads Department, under the provisions of the Freedom of Information Act 1992 (WA), for the disclosure of documents relating to the letting of the contract for the construction works at the intersection of Reid Highway, Mirrabooka Avenue and Alexander Drive and the associated traffic interchange and overpass, including communications with the Main Roads Department, correspondence and directions relating to the establishment of a restricted speed zone on the highway in the vicinity of the road works. Responses to those FOI requests have been received by the applicant since the institution of this appeal and he has sought leave to adduce further evidence on affidavit relating to those materials at the hearing of this appeal. Lengthy affidavits referring to and annexing correspondence and documents relating to those traffic arrangements have been filed.
The respondent, while not conceding any entitlement to adduce further evidence on the appeal, has also prepared an affidavit describing arrangements and annexing further documents relating to the construction works at this major intersection and the authorisations given, so the respondent claims, to modify the speed limit and the Main Roads Department's general specifications and standards for such traffic signs. Both sets of affidavits were referred to on the hearing of this application and I accepted them provisionally pending a final decision on whether or not leave to adduce such further evidence should be granted.
The appeal was listed for hearing before me on 7 August 2012 and the parties appeared and made submissions on that date. At the conclusion of the hearing Mr Kozyrski submitted that he should be entitled to file further submissions on the issue of the legal authority to erect road signs at this location as a result of further submissions and contentions by the respondent on that question. I granted him seven days within which to provide further such written submissions and within which to serve a copy of them upon the solicitor for the respondent. That was done and, pursuant to the right of reply which I gave to the respondent, further submissions were then filed by the respondent, again on that issue. In making those orders I directed that the matter would be decided on the basis of the oral submissions made at the hearing and the written submissions, if any, subsequently received without any further hearing unless either of the parties shows cause why there should be a further hearing. No application for a further oral hearing was made.
Application for leave to appeal
By virtue of s 8(2) of the Criminal Appeals Act 2004 (WA) a party aggrieved by a decision of a court of summary jurisdiction may apply to this court for leave to appeal. Only if leave to appeal is granted will this court entertain and consider the proposed appeal itself. Leave to appeal is required for each proposed ground of appeal and this court is not empowered to grant leave to appeal on any ground unless that ground has a reasonable prospect of success ‑ s 9(1) and (2) of the Criminal Appeals Act. To have a reasonable prospect of success the proposed grounds must have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success: Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 483 at [56] and Re State of Western Australia; Ex parte Worswick [2005] WASCA 187 [11] (Roberts‑Smith JA). The respondent submits that none of the proposed grounds of appeal has a reasonable prospect of success and, accordingly, leave to appeal for each ground should be refused and the appeal dismissed. It will be convenient to deal with the prospect of success of the various grounds and the ultimate question of whether or not any has been made out together and, therefore, to determine the application for leave to appeal and any appeal simultaneously.
Magistrate's reasons for decision
The learned magistrate gave detailed oral reasons for decision at the end of the trial. These extend over six pages of transcript and constitute, with respect, a very thorough and attentive examination of the evidence and the issues which were before his Honour. As already noted, his Honour received evidence, which he accepted, that established that the applicant's vehicle was travelling at 94 km per hour on Reid Highway at night within an area where there was a restricted speed limit established by road signs imposing a speed of 60 km per hour. His Honour referred to the evidence of Mr G P Mann, who is the traffic manager for the Abigroup Contractors, a civil contracting construction company, which had the contract for the design of the grade separated interchange at Alexander Drive and Mirrabooka Avenue and Reid Highway. He was the person responsible for the traffic control, design and implementation on the approaches to those works. He testified that his company had prepared a plan for proposed traffic control measures which was submitted to the Main Roads Department and approved and that he set up signs or caused road traffic signs to be set up in accordance with that plan, including the 60 km per hour signs which were relevant to this charge.
Before his Honour the applicant called evidence from Ms S V Kozyrski, an engineering technical officer with the City of Bunbury, who had experience in relation to drawing up plans and management plans for road works within the area of the City of Bunbury. Her evidence was critical of the particular plan which had been prepared by Mr Mann and she also asserted that this particular plan and the speed reduction signs did not comply with relevant Australian Standards in that the speed control signs should have been larger and that the configuration of the road works did not comply with the applicable Australian Standards.
However, his Honour concluded that the creation of a special speed zone could effectively be commenced by one speed sign and that there was no obligation of any kind for the signs to comply with any Australian Standards. His Honour concluded that this particular special speed zone was created by a speed sign which was 60 metres from the relevant position and was in compliance with regulation 3 of the Road Traffic Code 2000 (WA) (Road Traffic Code) and that the sign was substantially rectangular in shape, erected near the boundary of the carriageway and consisted of black numerals within a red circle on a white background. His Honour then proceeded to deal with the issue which had been raised by the applicant by saying:
Now having established that, the court needs to consider the provisions of regulation 300 of the Road Traffic Act [sic Road Traffic Code] and in particular 302 which provides that where a sign or traffic control signal of a kind referred to in these regulations is in existence on a road, it takes effect and operates as a traffic sign or a traffic control signal, duly established for the purposes of these regulations.
So where there is a traffic sign in this instance, of a kind referred to in the regulations and it is of a kind referred to in the regulations [set out in schedule 2 or 3]. Then it is a traffic sign established for the purpose of those regulations.
Of course sub‑section (3) provides that a traffic sign or traffic signal marked, erected or established or displayed on or near a road is in the absence of evidence to the contrary presumed to be a traffic sign or control signal, marked, erected, established or displayed under the authority of the regulations.
It's clear that there is no evidence to the contrary that the traffic signs in question were erected or displayed under the authority of the regulations, therefore regulation 303 applies and in those circumstances it's clear that the road traffic sign which was the 60 kilometre per hour sign 50 metres from where Mr Fryer had set up his speed detection equipment operated as the beginning of the speed zone sign for the purposes of the detection in this matter.
The accused clearly drove his vehicle in excess of that. The sign didn't have to be - for the purposes of the regulations didn't have to be Australian Standard compliant. It just had to be a sign of rectangular shape with the appropriate numerals and configuration and that's what it had on that particular day and the resemblance of that that is before me. So the issue in relation to the failure to comply with the Australian Standards for the purposes of this prosecution and these regulations are of no relevance.
They may be important for other issues but not for the purposes of a prosecution in respect of this matter. It's irrelevant. The provisions of the Code enable the prosecution to succeed in circumstances where it could be proved that there was a traffic control sign at the commencement of the zone and that's been established and clearly in those circumstances the charge against the accused is proven beyond a reasonable doubt for the reasons that I have stated.
Statutory framework
Regulation 11(3) of the Road Traffic Code 2000 (WA) which establishes the offence with which the applicant was charged provides that a person shall not drive a vehicle in a speed zone at a speed exceeding in kilometres per hour that indicated by the numerals on the speed limit sign at the beginning of the speed zone. A 'speed zone' means, among other things, a length of carriageway defined at its beginnings by means of a speed limit sign and at its end by means of another speed limit sign ‑ Road Traffic Code reg 3. A 'speed limit sign' means a sign that is substantially rectangular in shape and (i) is erected near the boundary of a carriageway; and (ii) consists of black numerals set within a red circle upon a white background ‑ Road Traffic Code reg 3. By reg 300(2) of the Road Traffic Code it is provided that where a traffic sign of a kind referred to in the regulations is in existence on a road it takes effect and operates as a traffic sign duly established for the purposes of the regulations. Regulation 300(3) provides that a traffic sign marked, erected, established or displayed on or near a road is, in the absence of evidence to the contrary, presumed to be a traffic sign marked, erected, established or displayed under the authority of those regulations. A 'traffic sign' is defined as one of the road signs, marks, structures or devices set out in schedule 2 or 3 placed, or erected, on or near a road ‑ Road Traffic Code reg 3. Such a sign is required to be a reasonable likeness of any representation of that sign in those regulations or the schedules to those regulations or to comply with a description of that kind of traffic sign in those regulations ‑ Road Traffic Code reg 302(1)(a). Such a sign is taken to comply substantially with the representation of a traffic sign in those regulations even though the dimensions of the sign, or of anything on the sign, are different ‑ Road Traffic Code reg 302(4). A reference in the Road Traffic Code to something that is 'authorised' means authorised by the person described as possessing that power, and the authorisation must be in writing ‑ Road Traffic Code reg 295. The Commissioner has the power to erect, take down, modify, et cetera, road signs including speed limit signs ‑ Road Traffic Code reg 297(1).
Proposed grounds of appeal
As to the proposed first ground of appeal, that his Honour erred in his finding by arriving at the decision without proper evidence, it is quite apparent that the evidence established that the applicant was driving on the highway at 94 km per hour and that there was a speed sign creating a 60 km per hour zone before the area of roadway in which the applicant's vehicle was detected as travelling at that speed. There was also evidence to show that there was a speed limit sign displaying the numerals 60 km per hour and that there was no evidence to show that that sign was not erected or displayed under the authority of the regulations so that the presumption established by reg 300(3) applied.
Furthermore, there was evidence from the prosecution, through Mr Mann, to the effect that the speed limit sign in question had been duly authorised by the Main Roads' representative. Subject only to the question raised by other proposed grounds of appeal about the validity or effectiveness of this speed limit sign there was, therefore, plainly evidence to support his Honour's finding. Subject only to the question of the validity of that sign, which is raised by other grounds of appeal, there is no reasonable prospect of this ground of appeal succeeding and leave to appeal in respect of it must therefore be refused.
Proposed second ground of appeal
This proposed second ground of appeal does not in itself raise any arguable ground of appeal but foreshadows the issue in respect of which leave was granted to make additional submissions after the hearing, namely whether the delegate of the Main Roads' representative was authorised under the contract for these road works. This issue was developed without being precisely defined, in those supplementary materials which comprise an affidavit of Mr Kozyrski of 14 August 2012 with annexures and written submissions from the respondent of 20 August. While this may appear a generous construction in favour of the applicant, I will treat those materials as proposing, in effect, as a second ground of appeal, the contention that Mr David Wilson, whose affidavit of 2 August 2012 was proffered by the respondent at the hearing of this application in the event that leave to adduce further evidence was granted to the applicant was not a duly authorised representative of the Main Roads Department to authorise the installation or placement of these speed limit signs.
Mr Wilson's affidavit established that he is a civil engineer employed by Main Roads Western Australia (MRWA) and that part of his duties involves acting as the delegate of the Main Roads' representative on road construction projects. In that affidavit he deposed that on 12 February 2010 he was appointed as the delegate of the Main Roads' representative under cl 3.2 of the Reid Alexander Interchange Design and Construct Project Deed Contract Number 99/08 between the Commissioner of Main Roads and Abigroup Contractors Pty Ltd for the road works undertaken at the Reid Highway and Alexander Drive interchange. He annexed to his affidavit a copy of the instrument of delegation from the Main Roads' representative dated 12 February 2010, a copy of the construction contract (with sensitive financial information excluded) and a copy of the execution page of the original contract showing that it was endorsed by the Commissioner of Main Roads. He deposed that as the delegate of the Main Roads' representative he was appointed to carry out the functions of all references to the Main Roads' representative under the Scope of Works and Technical Criteria associated with the contract. He referred to a clause in the Scope of Works and Technical Criteria (cl 11.3(1)(xiv)) which provides that temporary speed limit zones may be used with the express approval in writing of the Main Roads' representative.
In that affidavit Mr Wilson also deposed that on 1 April 2011 Abigroup submitted a hold/witness point record for approval to implement a speed reduction in accordance with an attached traffic control diagram, and that on date he signed that document as the Main Roads' representative authorising the placement of speed signs in accordance with the traffic control diagram. He attached a copy of that hold/witness point record and attached diagram to his affidavit. He also referred to provisions in the Scope of Works and Technical Criteria which provided that traffic control measures for the project must be in accordance with the Main Roads Traffic Management For Works On Roads Code Of Practice, a copy of which he also annexed.
Mr Wilson finally deposed that the traffic control diagram which had been authorised in relation to these works and dated 1 April 2011 provided that the 60 km per hour speed limit sign and the 'reduce speed' sign be placed 35 metres apart and that the Main Roads' representative at the time considered this acceptable with reference to cl 6.1 of the Code of Practice. In short, Mr Wilson as the Main Roads' representative's delegate expressly approved the hold/witness point record which authorised the implementation of the temporary speed limit signs which are the subject of this appeal. Hence the respondent submits that these speed limit signs were lawfully erected. The applicant contests that contention but it is evident from appendix 20 to the Scope of Works and Technical Criteria already mentioned that the designated authority for the release of the hold points is the Main Roads' representative, so confirming the authority of Mr Wilson to authorise the plan pursuant to which the speed limit signs were installed.
Furthermore, s 18A(3) of the Main Roads Act 1930 (WA) and the contract between the Commissioner for Main Roads and Abigroup Contractors confers on Abigroup Contractors the authority to erect speed limit signs. Hence the applicant's submission that Abigroup was not an 'authorised body' for the purposes of reg 297(2) of the Road Traffic Code to erect signs is not to the point. Its authority derives from the combination of the contract and s 18A(3) of the Main Roads Act.
As to submissions by the applicant that the Commissioner of Main Roads' Code of Practice requires that an approval must refer to a traffic management plan and that the hold/witness point record does not do so, this does not in any way affect the validity or efficacy of the sign which was installed. The Code of Practice is not any part of the regulations or other delegated legislation and is no more than guidance which is there for consideration. Mr Wilson has explained that the Main Roads' representative at the time considered that the arrangements proposed were acceptable. Consequently, all submissions raised by the applicant which assert non‑compliance or inconsistency with the Code of Practice failed to establish any error of law or lack of validity or efficacy of these signs.
Further contentions advanced by the applicant in the written submissions filed after the hearing asserted that no risk assessment had been undertaken in response to this traffic design plan but there is no evidence to support that contention. Again, the reference to a risk assessment or risk management process is a matter which is contained within the Code of Practice which, as already stated, is for guidance but does not have legislative force. A further submission that Mr Wilson did not hold an appropriate Main Roads WA accreditation as a road traffic manager to approve traffic management plans is likewise irrelevant. Under this contract the Main Roads' representative's delegate was not required to be authorised as a road traffic manager. He had that authority by virtue of being the Main Roads' representative's delegate.
Accordingly, not only am I not satisfied that there is any evidence to show that these signs were erected without requisite authority but I am positively satisfied by the elaborate materials which have been submitted that authority for their installation was duly conferred. Accordingly, I am satisfied that the learned magistrate was correct in his decision that reg 300(3) meant that this particular traffic sign was presumed to have been erected, established or displayed under authority of these regulations. Further, it is now established by the evidence before this court that this authority has been positively established.
There is, therefore, no prospect of the foreshadowed ground of appeal referred to as number two, as enlarged by the applicant's written submissions, having any prospect of success. Accordingly, leave to appeal in respect of it should be refused.
Third and fourth proposed grounds of appeal
The third and fourth grounds can be considered together because they each consider whether or not the signs had been validly or effectively installed.
The first point arising from these proposed grounds is that the learned magistrate did not make any finding that the private contractor had not complied with the requirements of Main Roads WA as set out in its code of practice.
At the trial there was no evidence adduced to suggest the speed limit sign had been erected without authority and his Honour, therefore, disposed of that in accordance with the presumption established by reg 300(3). Accordingly, these proposed grounds of appeal are entirely dependent upon reference to the further evidence which the applicant is seeking to have adduced at this hearing. The points which the applicant now seeks to agitate are:
(i)to be valid, the authorisation must be in writing in accordance with reg 295 of the Road Traffic Code.
(ii)the Hold/Point release document produced at the trial by the prosecution witness, Mr G D Mann, does not constitute an authorisation as required under reg 296; and
(iii)under reg 297 only the Commissioner of Main Roads has authority to place a regulatory speed sign on the road.
As to these three points, it is clear that reg 297(1) empowers the Commissioner of Main Roads to erect road signs but reg 295 does not affect or diminish the power conferred by reg 297(1). If a road sign is erected by the Commissioner it is unnecessary and irrelevant to enquire whether or not the Commissioner's authorisation was in writing: Lyster v Kemp [2010] WASC 47 [15] ‑ [16], where the power of the Commissioner to erect valid and effective speed signs was examined and analysed.
Consequently, if a road sign is erected by the Commissioner acting through a departmental officer or employee, no written authorisation is required by reg 297(1). If, however, the road sign is erected by another body, that body must be authorised in writing to the necessary extent ‑ reg 297(2). Any such authorisation need not authorise a specific sign or a specific traffic management plan so there is no statutory requirement that a traffic management plan be authorised ‑ see again Lyster v Kemp [87].
It is convenient at this point to deal with the application to adduce further evidence on behalf of the applicant and the consequent provisional application to adduce further evidence by the respondent in the event that the initial application is granted. The power to admit further evidence is conferred by s 40(1)(e) of the Criminal Appeals Act and while the discretion is at large, it is generally exercised with reference to the established distinction between new and fresh evidence: Rinaldi v State of Western Australia [2007] WASCA 53 [84] and De La Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [152]. The power to admit fresh evidence may be exercised not only if some error has been made in the court at first instance but also to establish, if it can be established, that for reasons which were not then appreciated, either because some available evidence was not adduced or because of information which has since come to hand, the result produced by the decision under appeal has produced a miscarriage of justice.
The evidence in respect of which these applications have been made is contained in an affidavit of the applicant sworn 28 May 2012 plus annexures and, provisionally, an affidavit of Mr David Watson sworn 2 August 2012 proffered by the respondent.
The submissions for the respondent, essentially, are to the effect that nothing contained in the material put forward by the applicant supports the contentions advanced by him in these proposed grounds of appeal and that, accordingly, the application to adduce that evidence should be refused and leave to appeal on those grounds also refused. However, as the matter has been fully argued and because the issues raised are not unimportant, I consider that the preferable course is to admit the additional evidence from the applicant and the additional evidence proffered by the respondent and to consider all that when dealing with the application for leave to appeal on these proposed grounds. That is the course that I shall adopt.
Section 18A(3) of the Mains Roads Act provides, among other things, that the Commissioner may enter into an agreement with any person providing for such of the Commissioner's functions under the Act or under any other written law as are set out in the agreement to be performed for and on behalf of the Commissioner. In the present case, the contract for the design and construction of these particular road works between the Commissioner and Abigroup Contractors conferred upon the contractors the authority of the Commissioner to erect these speed signs. By cl 11.4(a) of the Scope of Works and Technical Criteria forming part of the contract and attachment D (see the affidavit of Mr D Wilson of 2 August 2012) this contract provided that Abigroup Contractors were responsible for carrying out all of the necessary work needed for the temporary modification of the road work to complete the Project Works including modification of speed zone limits. It also provided by cl 11.3(a)(v) and (xiv) of the Scope of Works and Technical Criteria and Attachment D that traffic control measures must be in accordance with the Code of Practice and that temporary speed limit zones may be used with express approval in writing by the Main Roads' representative. By cl 11.3(a)(ii) of the Scope of Works and Technical Criteria forming part of the contract it was also provided that proposed changes to traffic flow and arrangements for control of traffic on the roads must be to the satisfaction of the Main Roads' representative. Clause 13.7 of the Scope of Works and Technical Criteria provided that the contractor must not proceed beyond certain hold points without prior release by Main Roads.
In the present case, the relevant hold point was released by the delegate of the Main Roads' representative under a record dated 1 April 2011 ‑ see the affidavit of Wilson at [8] ‑ [9] and attachment E. The Main Roads' representative (and his delegate) have the right to amend or extend a nominated hold point as considered necessary. In the present case, the delegate of the Main Roads' representative considered the placement of the speed limit signs set out in the approved traffic control diagram to be acceptable under the Code of Practice and expressly authorised the placement of speed signs by endorsing this hold/witness point record ‑ see the affidavit of Wilson at [9] ‑ [10] and exhibits 3 and 4.
Accordingly, it follows that these speed signs were erected lawfully and with the authority of the Commissioner of Main Roads and were valid. Having now fully examined and considered the proposed grounds of appeal three and four advanced by the applicant and having done so with regard to the additional evidence which has been put forward for this purpose, I am satisfied that there is no prospect of either of these grounds succeeding on this appeal and that, accordingly, leave to appeal in respect of each of them should be refused.
Proposed ground five
This proposed ground seeks to assert that the learned magistrate erred in his finding that the applicant was guilty of the speeding offence notwithstanding that the learned magistrate accepted that he did not see the altered speed zone while driving at night. At the most, this only amounts to a contention that the charge against the applicant should have been dismissed because he was not aware, that is, was ignorant, that the applicable speed limit at that point of the highway was 60 km per hour and not 90 km per hour. Any mistake by the applicant in this regard could only have been a mistake of law and not a mistake of fact. Therefore, no defence under s 24 of the Criminal Code based on an honest and reasonable mistake of fact could exist: Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493. Consequently, this proposed ground has no prospect of success and leave to appeal in respect of it should be refused.
As none of the five proposed grounds of appeal has any reasonable prospect of success, the court is obliged to refuse leave to appeal in respect of each of them. It follows that the appeal must be dismissed.
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