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 null and void and, secondly, an order in the nature of certiorari quashing the conviction and those orders for "error on the face of the record".

5  Of course, in seeking an order in the nature of certiorari the appellant had to confront two problems.  First, he was limited to error of law and, secondly, such error had to be established by reference only to "the record" as that term is properly understood in this area of judicial review.  Hence, no doubt, his fall-back position, that if denied relief in that form he should at least have a declaration that the conviction and sentencing orders were null and void.

6  The proceeding came on for hearing before a judge in the Trial Division on 27 July 2000 and after taking time for consideration his Honour delivered judgment on 18 August 2000.  In careful and comprehensive reasons, his Honour canvassed all of the submissions made by counsel on behalf of the appellant and canvassed too the further submissions that were submitted in writing, unsolicited, after judgment had been reserved and treating of the alternative claim for a declaration.  But his Honour was unpersuaded that the appellant was entitled to any of the relief sought and so he dismissed the proceeding.

7 Again dissatisfied, Mr Kuek instituted an appeal to this Court by notice dated 1 September 2000. In that notice he alleged error in the judge's identification of "the record" for the purposes of the proceeding, error in his Honour's concluding that the certificate tendered under s.83 of the Road Safety Act was sufficient and error in the use made of the particulars given in the charge "(Highest speed 81 KPH)".  The appeal is now before us for determination.

8 This morning the appellant appeared in person to prosecute the appeal, and in relation to error relevant to certoriori he relied upon one argument, and one only: that the certificate tendered under s.83 did not prove that the device that had been used had been sealed before use and that, as s.79 required by implication that the device must have been sealed before use, the reading of the appellant's speed on the device was inadmissible and there was therefore no basis for the conviction.

9 Mr Kuek took us to the certificate, which is dated 13 January 1997, and pointed out that, although certifying in terms to the testing of the device on 20 November 1996, when the certificate declares that the device “has been duly and properly sealed” no date is given and therefore, as the certificate postdated the offence, the certificate is not evidence of sealing before use. He did not in the end contend that the certificate was not admissible under s.83; plainly it certifies to testing on 20 November 1996 and could be used for that purpose. His complaint was that the certificate did not prove sealing before use on 6 January, but only at best sealing before 13 January.

10 Section 79 of the Road Safety Act makes evidence of speed as indicated or determined by a laser device "when tested sealed and used in the prescribed manner" evidence of the speed at which the relevant motor vehicle was travelling at the relevant time.  It does not mention a certificate.

11 Section 83 then provides that "a certificate in the prescribed form to the effect that [a] device referred to in s.79”, inter alia, "has been tested or sealed in the prescribed manner" is evidence that the device has been so tested or sealed. Reference may then be made to the Road Safety (Procedures) Regulations 1998, and in particular to regulations 509A, 509B, 509C and 509D which deal with the testing, sealing and use of laser devices. Regulation 510 deals with the form of the certificate.

12  It is regulation 509B which describes the testing of a laser device.  Regulation 509C then provides expressly that "the person who conducts the test of a laser device must seal the device" if the test confirms the things set out in that regulation.  In my opinion, there is no warrant, then, for dividing the two steps of testing and sealing, when the testing of the device satisfies the requirements of regulation 508.  To my mind, there could be no practical purpose served in testing the device if, once tested satisfactorily, it was not sealed forthwith for use and no doubt that is what happened here.  I infer that the device was tested and then sealed.  As I read the regulations, that is what is required and, as I read the certificate, that is what the certificate states.

13 The certificate that was relied upon declares expressly, inter alia, that the device “has been duly and properly sealed in accordance with the Regulations”. It follows precisely the form in schedule 4 of the regulations, which is the form prescribed by regulation 510. Reading the certificate as a whole, I consider that it certifies to this effect: that on 20 November 1996 the device was tested in accordance with the regulations, the test confirmed that the device was operating correctly in accordance with the regulations, and the device was duly and properly sealed in accordance with the regulations. It follows that the certificate was evidence of testing and sealing before use. It was admissible under s.83 and it proved testing and sealing before use, as the appellant contended was required by s.79. No error in this regard has been demonstrated.

14  Even if I am wrong, however, I think that the appellant falls at the second hurdle, for if there was error below and it was error of law, he does not demonstrate that it was error on the face of the record, the record here being that of the County Court on appeal.  Notwithstanding Craigv.South Australia (1994) 184 C.L.R. 163 at 175-6, in Victoria the reasons for judgment can be regarded as part of the record because of s.10 of the Administrative Law Act 1978. In this case the reasons of the County Court judge are found in paragraph 52 of the affidavit of Gabriel Kuek affirmed on 6 June 2000: they are set out also in paragraph 56 of the reasons given in the Trial Division. In his reasons for judgment the County Court judge referred to "the radar device" (meaning, of course, the laser device in use here) and he referred also to "the reading" which had been reduced by the police, after some argument with the appellant, to 81 kilometres per hour. His Honour made no reference at all to the certificate put in evidence.

15  The appellant, in his submissions to us this morning, submitted that we could nonetheless have regard to the certificate as part of the record.  Indeed, Mr Kuek went even further, for he submitted that in this case, in order to correct what he said was error in the County Court, this Court should expand the record to include not only the certificate but all of the evidence below in order that he might then establish his submission that in the County Court there had been no evidence of the sealing of the device before use.

16  In my opinion, so to expand the record was simply not open to the trial judge.  Acceptance of such an argument would seem to me to permit the record to be expanded whenever it was said that the evidence below was insufficient to sustain the conclusions arrived at - and that, as I understand it, is not the law.  The record did not include the certificate or, at all events, did not include all of the evidence below and, accordingly, was not such as to demonstrate the error upon which the appellant was relying.

17  For these reasons it seems to me clear that the appellant's contention that certiorari was wrongly refused below has not been established and I reject the argument to the contrary.

18  There is, however, the alternative claim still relied upon, that the appellant should have a declaration that the conviction and sentencing orders made in the County Court were null and void, if, in line with the reasons just given, the conviction and those sentencing orders are not to be quashed.

19  It seems to me extraordinary to suggest that the Court should make a declaration that the very conviction which is not being quashed is nonetheless null and void.  No authority was offered for such a step and, if I may say so, I know of none.  I am unclear what effect such a declaration could have and in my opinion, this Court should not grant the declaration sought if, for the reasons I have given, the conviction is left to stand because certiorari is being refused.

20  The appellant took us to some authorities in which a declaration was made in order to right a perceived wrong but none of them was a case like this and I found none of them of any assistance.

21  In my opinion, there was no error in the trial judge's refusing a declaration and on this ground too this appeal fails.

22  Accordingly, I would dismiss the appeal.

BUCHANAN, J.A.: 

23  In my opinion no error of law appears on the face of the record.  Unless the record is to be expanded to include the evidence, there is no error shown, because the error is said to be a want of proof.  In my view, there is no basis upon which the record can be remade in such a fashion.

24  I am also of the view that in the circumstances of this case the appellant is not entitled to a declaration where his claim for certiorari has filed.

25  Accordingly, the appeal must be dismissed.

26 I do not consider it is necessary to determine the effect of a certificate issued pursuant to s.83 of the Road Safety Act 1986.

O'BRYAN, A.J.A.: 

27  I agree in the reasons given by Phillips, J.A. that the appeal should be dismissed.

PHILLIPS, J.A.: 

28  The order of the Court is appeal dismissed with costs.

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