Kuek v Wellens - [2002] VSCA 31

SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 5655 of 2000

GABRIEL KUEK

Appellant

v.

ELECTRA WELLENS

First-named Respondent

and

COUNTY COURT OF VICTORIA

Second-named Respondent

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JUDGES:

PHILLIPS, J.A. and BUCHANAN, J.A. and O'BRYAN, A.J.A.

WHERE HELD:

MELBOURNE

DATE OF HEARING:

25 March 2002

DATE OF JUDGMENT:

25 March 2002

MEDIUM NEUTRAL CITATION:

[2002] VSCA 31

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Criminal law – Summary offence – Driving in excess of speed limit – Offence detected by laser device – Conviction in Magistrates’ Court – Unsuccessful appeal to County Court – Application for judicial review – Sufficiency of certificate of testing and sealing of laser device – No error of law – No error of law on the face of the record – Road Safety Act 1986 ss.79, 83, Road Safety (Procedures) Regulations 1988 regs.509B, 509C, 510, Schedule 4.
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APPEARANCES: Counsel Solicitors

For the Appellant In person Access Law

For the Respondent Mr J.D. McArdle Q.C. K. Robertson, Solicitor for Public Prosecutions
PHILLIPS, J.A.:
1 On 6 January 1997 the appellant was driving along Elliott Avenue in Parkville when he was apprehended for allegedly exceeding the speed limit of 60 kilometres an hour. The offence had been detected by a laser device which was being operated at the time by the first-named respondent, Senior Constable Wellens. Having pulled the appellant over, she issued him with an infringement notice.

2 On 30 November 1997 a charge against the appellant was filed in the Magistrates' Court and the appellant was duly prosecuted for the alleged offence. The charge contained brief particulars, including "(Highest Speed 81 KPH)". The matter came on for hearing on 3 June 1999. Mr Kuek was convicted and fined $180, with costs of $133.

3 Dissatisfied with this result, Mr Kuek appealed to the County Court and the appeal was heard on 10 April 2000. Both the informant and the appellant were represented by counsel. Evidence was given by and on behalf of the informant and Mr Kuek too gave evidence. The prosecutor relied upon evidence from the informant of the appellant's speed as indicated or determined by the laser device (evidence which is authorised by s.79 of the Road Safety Act 1986) and a certificate was tendered under s.83 of the Act, certifying to the testing and sealing of the device that was used. Despite the appellant's assertion on oath that he had not been exceeding the speed limit, the judge accepted the police evidence, found the charge proved and the appeal was dismissed.

4 There is no right of appeal from the decision of a County Court judge on such an appeal from the Magistrates' Court except in limited circumstances which have no relevance here. Nothing daunted, Mr Kuek sought to challenge the decision against him by way of judicial review. He instituted a proceeding in the Trial Division in accordance with the procedure set out in Order 56 of Chapter I of the Rules seeking, first, a declaration that the conviction and sentencing orders recorded against him were…

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 Kuek v Wellens

Details

AGLC: Kuek v Wellens [2002] VSCA 31
Case: [2002] VSCA 31
Decision Date: 25 March 2002

CaseChat Overview and Summary

In the case of Kuek v Wellens, the respondent, Wellens, sought judicial review of a decision of the County Court of Victoria, which had dismissed an appeal against his conviction for a speeding offence. The conviction had been handed down by the Magistrates' Court of Victoria, where Wellens was found guilty of driving in excess of the speed limit. The detection of the offence was made using a laser device, and the conviction was based on a certificate of testing and sealing of the device.

The primary legal issues before the court were whether there had been any error of law in the County Court's dismissal of the appeal, and whether the certificate of testing and sealing of the laser device was sufficient. The court had to consider whether the certificate met the requirements of the Road Safety (Procedures) Regulations 1988 and whether the laser device was properly sealed and tested in accordance with those regulations. Additionally, the court had to assess whether the conviction in the Magistrates' Court was legally sound, and if the appeal to the County Court was appropriately dismissed.

The court held that there was no error of law in the County Court's decision to dismiss the appeal. The certificate of testing and sealing of the laser device was deemed to be sufficient, meeting the requirements of the relevant regulations. The court found that the laser device had been properly tested and sealed, and the conviction in the Magistrates' Court was legally sound. The County Court had correctly determined that the appeal was without merit, and there was no error of law on the face of the record.

As a result of the court's findings, the application for judicial review was dismissed, and the conviction in the Magistrates' Court was upheld. The court confirmed that the conviction was valid and that there had been no procedural errors in the testing and sealing of the laser device. The appeal to the County Court was appropriately dismissed, and the conviction remains in place.

Orders