Kozyrski v Hodgson - [2012] WASC 421

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…

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 Kozyrski v Hodgson

Details

AGLC: Kozyrski v Hodgson [2012] WASC 421
Case: [2012] WASC 421
Decision Date: 13 NOVEMBER 2012

CaseChat Overview and Summary

Kozyrski brought an application for leave to appeal against their conviction for speeding, as outlined under regulation 11(3) of the Road Traffic Code 2000. The conviction arose from the defendant's alleged speeding in an area marked by a temporary traffic speed sign during a period of temporary roadworks. The primary legal issue was whether the speed control sign in question was authorised, and thus valid, for the purpose of regulating traffic speed. This hinged on whether the Commissioner of Main Roads had the authority to delegate the power to erect such signs and whether the requirements for a valid speed control sign were met.

The court examined the statutory framework and the delegation of powers by the Commissioner. It determined that while the Commissioner had the authority to delegate the power to erect speed control signs, there was no evidence that the specific sign in question had been authorised. The court found that the sign did not comply with the requirements for a valid speed control sign, primarily because it was not authorised in accordance with the statutory provisions. This non-compliance rendered the sign invalid and the conviction for speeding based on its indication null and void.

Consequently, the court granted the application for leave to appeal, ruling that the conviction was unlawful due to the invalidity of the speed control sign. The decision underscored the necessity for proper authorisation and compliance with statutory requirements for any speed control sign to be considered valid. This ruling not only affects the present case but also sets a precedent for future cases involving the validity of speed control signs and the delegation of powers by the Commissioner of Main Roads.

Orders