Luke Mifsud v Director of Public Prosecutions
[2019] VSCA 233
•18 October 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0148
| LUKE MIFSUD | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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| JUDGES: | WHELAN, T FORREST JJA and KENNEDY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 October 2019 |
| DATE OF JUDGMENT: | 18 October 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 233 |
| JUDGMENT APPEALED FROM: | [2018] VSC 608 (Bell J) |
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VEHICLES AND TRAFFIC – Driving offence – Driver exceeding speed-limit – Alleged speed of 86 kilometres per hour – Permitted speed of 40 kilometres per hour – Temporary speed-limit sign erected – Sign physically compliant with legislation – Whether lawful erection of sign is element of offence – Whether defence to prove lawful erection of sign – Leave to appeal granted – Appeal dismissed – Road Safety Road Rules 2009 rr 20, 20, 315, 316 – Road Safety (Traffic Management) Regulations 2009 pt 2.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr M Y Bearman with Mr D P Hannan | Ondrik Larsen Lawyers |
| For the Respondent | Mr C T Carr | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA
T FORREST JA
KENNEDY AJA:
Background
The applicant seeks leave to appeal from a decision of the Supreme Court of Victoria dated 18 October 2018.[1]
[1]DPP v Mifsud [2018] VSC 609 (‘Reasons’).
The applicant’s proposed grounds are as follows:
1.That the learned Trial Judge erred in finding a speed-sign establishing a speed-limit applying to a driver for a length of road to which the sign applied under Rule 21(1) of the Road Safety Rules 2009 is presumed to be lawfully authorised in the absence of proof by a defendant to the contrary.
2.That the learned Trial Judge should have found that the prosecution was required to prove that the speed-limit sign was lawfully authorised as an element of the offence of a driver exceeding the speed limit under Rule 20(1), where a speed limit sign under Rule 21(1) applied.
In a notice of contention, the respondent stated:
1.The learned trial judge was correct to determine, at [23], that the prosecution was not required to prove lawful erection of a speed limit sign as part of any prosecution for exceeding the speed limit.
2.The learned trial judge erred in finding, at [22], that it was a defence to a charge of exceeding the speed limit, on a reverse onus, that a speed sign was not lawfully erected.
Factual summary
The following facts are undisputed:
(a) On 21 November 2015, the applicant was driving on Sydney Road in Somerton between Gasoline Way and Patullos Lane.
(b) The ordinary speed-limit for that length of road was 80 kilometres per hour but a temporary speed-limit sign (‘the speed-sign’) had been erected for that length, which stated that the speed-limit was 40 kilometres per hour. The sign was placed because of works being carried out by fire authorities at a nearby fire. It is not known who erected the sign. The sign substantially complied with the requirements of the Road Safety Rules 2009 (‘RS Rules’) for speed-limit signs.
(c) On the same day, the applicant was issued with an infringement notice alleging he was travelling at a detected speed of 88 kilometres per hour, with an alleged speed of 86 kilometres per hour, and that the permitted speed was 40 kilometres per hour.
The applicant was charged by summons with an offence under r 20(1) of the RS Rules of driving over the speed-limit. On 20 December 2016, a judicial registrar heard the case. The applicant pleaded not guilty and put the lawfulness of the erection of the relevant speed-sign in issue. The prosecution led no evidence as to who erected the sign or of any authority to do so, ‘on the basis that this evidence was not relevant to the offence’. The judicial registrar dismissed the charges on the basis that proof of the lawful erection of the sign was required.
The judicial registrar’s decision was the subject of a review under s 16K of the Magistrates’ Court Act 1989. On 21 August 2017, a magistrate commenced the hearing. The lawfulness of the speed-sign was again the issue and again the prosecution declined to lead evidence concerning the identity of the authority of the person who erected the sign, contending that this evidence was irrelevant to the offence charged. The magistrate found that the prosecution had failed to prove that the speed-sign had been erected with lawful authority, and therefore had failed to prove an element of the offence.
The prosecution appealed to the Supreme Court, sitting in the Common Law Division. The appeal was brought under s 272(1) of the Criminal Procedure Act 2009 on the following question of law:
Is the Prosecution required to prove as an element of the offence of exceed speed-limit where a speed-limit sign applies that the speed sign was erected with lawful authority?
The sole ground of appeal was couched in similar terms:
The learned magistrate erred in law by finding that authorisation to erect the speed sign by an approved authority is an element of the offence to be proved by the Prosecution.
On 18 November 2018, Justice Bell allowed the appeal and shortly thereafter made final orders remitting the matter to the Magistrates’ Court. The application for leave to appeal is from the orders of Justice Bell.
The judge’s reasons
Justice Bell reviewed rr 20(1), 21(1) and 21(3) of the RS Rules, and set out the relevant undisputed factual background. We shall set these rules out later in these reasons. His Honour considered that there was nothing in the RS Rules that required, in a prosecution under r 20(1), that the prosecution prove that a speed-sign be authorised. His Honour considered that the language of r 20(1) suggested the offence was created with the contrary intention in mind,[2] and that other provisions in the RS Rules confirmed this conclusion.[3] He stated that the effect of
rr 315 and 316 is that if a sign is substantially compliant with the design set out in schs 2 or 3 of the RS Rules, then its physical presence on the road ‘enlivens [its] legal effect’.[4]
[2]Ibid [9].
[3]Ibid [10].
[4]Ibid [17].
The judge considered the applicant’s submission that the above interpretation of rr 315 and 316 would lead to the absurd consequence that anybody could erect a compliant speed-sign which would immediately have a legally enforceable effect, regardless of the authority of the person who erected that sign.
The applicant also submitted that, as the Road Safety (Traffic Management) Regulations 2009 (‘TM Regulations’) prohibited the unlawful erection or installation of, or interference with, traffic control devices (including speed signs), then in the prosecution of a speeding offence, it was for the prosecution to prove the impugned sign was erected with authority.
Justice Bell did not accept this submission. His Honour considered that the purposes of the RS Rules were set out in r 1 therein, and were not promoted or clarified by a consideration of the provisions of the TM Regulations, which were enacted for an entirely different purpose.[5] He considered that to impose a requirement to prove the lawful erection of every speed-sign in every enforcement proceeding would place ‘intolerable burdens’ upon police and other prosecution authorities.[6] His Honour agreed with the reasoning of McGill DCJ in the Queensland District Court case of Crossley v Auld[7] when dealing with a similar submission.
[5]Ibid [15].
[6]Ibid [17].
[7][2011] QDC 270.
As to the ‘absurdity’ submissions, Justice Bell said that he did not think that the legislation ‘intend[ed] that drivers will be liable for exceeding the speed specified in an unauthorised speed-limit sign’.[8] The judge went on to say that, if a driver were to prove that a sign was unauthorised, that would be a valid defence, but it is up to the driver to supply that proof.[9]
[8]Reasons [22].
[9]Ibid.
His Honour concluded as follows:
Driving a motor vehicle on a road in excess of the specified speed limit is an offence of strict responsibility and the prosecution does not have to prove that the driver knew, or did not have a mistaken belief as to, what the limit was. The prosecution must prove that the speed limit applied to the driver for the length of the road concerned, which (in the usual and present case) requires proof that a substantially compliant speed-limit sign applied to that length of road when the driver was driving. It must prove that, when doing so, the driver exceeded the limit specified in the sign. It does not have to prove that the sign was authorised.[10]
[10]Ibid [23].
This application
We shall set out the relevant speed-limit provisions in the RS Rules:
20 Obeying the speed-limit
(1)A driver must not drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving.
…
21 Speed-limit where a speed-limit sign applies
(1)The speed-limit applying to a driver for a length of road to which a speed-limit sign applies is the number of kilometres per hour indicated by the number on the sign.
…
(3) A speed-limit sign on a road applies to the length of road beginning at the sign and ending at the nearest of the following —
(a) a speed-limit sign on the road with a different number on the sign;
(b) an end speed-limit sign or speed derestriction sign on the road;
(c) if the road ends at a T-intersection or dead end—the end of the road.
We shall also set out the relevant provisions in the RS Rules concerning the legal effect of ‘traffic control devices’:
315 Legal effect of traffic control devices mentioned in these Rules
(1) A traffic control device of a kind mentioned in these Rules has effect for the Rules if—
(a) the device is on a road; and
(b) the device complies substantially with the Rules.
…
(2) A traffic control device is taken to comply substantially with these Rules unless the contrary is proved.
316 When do traffic control devices comply substantially with these Rules
(1) A traffic sign complies substantially with these Rules if—
(a) it is a reasonable likeness of a diagram in Schedule 2 or 3 of that kind of traffic sign; or
(b)for a traffic sign of a kind for which there is not a diagram in Schedule 2 or 3—it complies substantially with a description of that kind of traffic sign in the Rules and, if the description includes a symbol for which there is a diagram in Schedule 4, the symbol on the sign is a reasonable likeness of the diagram.
(2) A road marking complies substantially with these Rules if it complies substantially with a description of that kind of road marking in the Rules and, if the description includes a symbol for which there is a diagram in Schedule 4, the symbol in the road marking is a reasonable likeness of the diagram.
(3) A traffic control device (except a traffic sign or a road marking) complies substantially with these Rules if the device complies substantially with a description of that kind of traffic control device in the Rules and, if the description includes a symbol for which there is a diagram in Schedule 4, the symbol on the device is a reasonable likeness of the diagram.
…
It is also convenient to set out regs 4, 6 and 7 of the TM Regulations. It will be recalled that these regulations were relied upon by the applicant in aid of his contention as to the proper construction of r 20(1) of the RS Rules:
4 Definitions
…
Road Rules means the Road Safety Road Rules 2009;
…
speed-limit sign means a traffic sign that is a reasonable likeness of a diagram of a speed-limit sign mentioned in rule 21 of the Road Rules;
…
traffic control device has the same meaning as in the Road Rules and includes a road hump;
traffic sign has the same meaning as in the Road Rules;
…
6 Erection, installation of and interference with traffic control devices
(1)Subject to these Regulations, a person must not erect, display, place, interfere with, alter, deface or remove a traffic control device that is—
(a) on a road; or
(b) in a road related area; or
(c)in the view of any person on a road or road related area.
Penalty: 6 penalty units.
(2) A person must not erect, display or place on a road, in a road related area, or in the view of a person on a road or road related area, anything that—
(a) purports to be, or is an imitation of, or is similar to, a traffic control device; or
(b) interferes with the effectiveness of a traffic control device; or
(c) prevents an approaching driver or other road user from clearly distinguishing the whole or any part of a traffic control device; or
(d) is intended to distract a driver or other road user's attention from a traffic control device.
Penalty: 6 penalty units.
7 Prohibition on erection of superseded traffic control devices
(1) A person must not erect or place—
(a) on a road; or
(b) in a road related area; or
(c) in the view of any person on a road or road related area—
a traffic control device specified in Schedule 2.
Penalty: 6 penalty units.
(2) Subject to this Part, a traffic control device specified in Schedule 2 may be displayed, altered, maintained or removed.
Applicant’s submissions
In his submissions, the applicant argued that the trial judge erred in finding that the erection of a speed-sign is presumed to be authorised unless proven otherwise. He contended that the judge’s interpretation of r 21(1) departs from the grammatical meaning of the RS Rules and went beyond what is necessary to avoid the ‘patently absurd result’ that an unlawfully placed speed-sign could still have lawful effect. The applicant further submitted that the judge acknowledged but failed to apply the principle of legality in essentially reversing the prosecutorial burden of proof and thus the presumption of innocence.
The applicant submitted that the Court read the phrase ‘the device’ in r 315(1) of the RS Rules to mean ‘the lawful device’, so that the burden is on the prosecution to prove that the erection of a speed-sign was lawfully authorised as an element of the offence of exceeding the speed-limit under r 20(1).
In the hearing of the application for leave to appeal, the applicant sought leave to file further written submissions on the interaction between the RS Rules and the TM Regulations. We granted leave to the applicant to file brief additional submissions and leave to the respondent to file a response. In these written submissions, the applicant contended that rr 20(1) and 21(1) of the RS Rules and pt 2 of the TM Regulations[11] should be read together as a single legislative scheme. This was put in support of the applicant’s argument that r 315(1) of the RS Rules should not be construed as establishing that an apparently compliant but unauthorised sign would have legal effect.
[11]Including regs 4, 6 and 7 as set out in paragraph 18 of these reasons.
Respondent’s submissions
The respondent’s main submission was that the lawful erection of a speed-sign is not an element which the prosecution is required to prove under r 20(1) of the RS Rules. All that is required is the presence of a physically compliant sign, as is clear from the language in rr 20, 21, 315 and 316 of the RS Rules. The respondent conceded that the learned trial judge had no basis upon which to reverse the onus of proof but submitted that his Honour’s primary conclusion — that the prosecution is not required to prove the lawful erection of a speed-sign as part of a prosecution for breach of r 20(1) — is correct, and urged this Court to dismiss the appeal.
In response to the applicant’s additional argument, the respondent submitted that the applicant had failed to properly explain any interaction between the RS Rules and the TM Regulations. Even if the RS Rules and the TM Regulations were read as a single legislative scheme (as the applicant suggested), it did not undermine the scheme of the RS Rules, which is to give effect to a traffic control device if it is physically compliant with legislative requirements.
Consideration
We shall consider grounds 1 and 2 and the notice of contention together. At the core of the applicant’s submissions is the proposition that an element of an offence under r 20(1) is that the relevant speed-sign be proven to be lawfully authorised.
We do not accept this submission. The language of rr 20, 21 315 and 316 requires no more than that the prosecution establish that the physical characteristics of the impugned sign substantially comply with the RS Rules:
· Rule 20(1) creates the offence of disobeying a speed-limit applicable over ‘the length of road’.
· Rule 21(1) specifies the applicable speed-limit is that indicated by ‘the number on the [speed-limit] sign’.
· Rule 21(3) confines the operation of the speed-sign to a length of road beginning with the sign and ending with a different sign, a T-intersection or a dead end.
· Rule 315(1) provides that a speed-sign has effect if it is erected on a road and complies substantially with the RS Rules.
· Rules 315(2) and 316, by reference to schs 2 and 3, set out when a sign is substantially compliant.[12]
[12]In this case, it is not in dispute that the impugned speed-sign was substantially compliant.
It is readily apparent there is nothing in the text of the RS Rules that allows for the interpretation of r 20(1) for which the applicant contends. The language employed gives a traffic control device[13] legal effect if it is placed upon a road and has the requisite appearance. The applicant contended that this construction would result in the absurd consequence that any unauthorised person could unlawfully erect a speed-sign (or any other traffic control device), which, despite its unlawful erection, would have a lawful effect. In our view, despite the apparent incongruity of this consequence, this is precisely what the legislature intended. The alternative that in every Victorian prosecution for disobeying a traffic control device of some form, the prosecution must prove that the relevant device was lawfully erected, might well have been seen by the legislature as an unacceptable burden on police and prosecution authorities. It is also in the interests of public safety that drivers be required to obey signs that visually comply with the signs specified in the RS Rules. To leave the decision — whether or not to comply with an apparent speed-limit — to the judgment of drivers as to whether the sign was lawfully erected, is to invite non-compliance and uncertainty.
[13]‘Traffic control device’ is defined in the RS Rules as ‘a traffic sign, road marking, traffic signals, or other device, to direct or warn traffic on, entering or leaving a road’.
The applicant contended that if rr 20(1) and 21(2) of the RS Rules were read with pt 2 of the TM Regulations as a single legislative scheme, a legislative intent could be discerned that the phrase ‘a traffic control device of a kind mentioned in these Rules’ in r 315 be construed as if it read ‘a traffic control device of a kind authorised under the TM Regulations’. If construed in this way, so the argument went, then proof of lawful erection of a speed-sign was required before it could be said to be a traffic control device.
This argument is inconsistent with the explicit language of r 315 or any other provision of the RS Rules.[14] If this argument were to be sustained, it would be contrary to the clear and unambiguous text of rr 20(1) and 21(1). We are unable to discern any drafting error or departure from the legislative purpose that could justify such an interpretation.[15]
[14]In fact, reg 316(3A) of the TM Regulations explicitly prevents the TM Regulations from impacting upon the operation of the RS Rules.
[15]See DPP v Leys (2012) 44 VR 1, 38 [110].
Both parties accepted that his Honour erred in paragraph 22 of the judgment. We shall set it out in full:
Contrary to the submissions of the Director, I do not think the legislation, regulations and rules intend that drivers will be liable for exceeding the speed specified in an unauthorised speed-limit sign. If a driver proves that the sign is unauthorised, it is a valid defence. But it is up to the driver to supply that proof. In respect of the issue of authorisation of the speed-limit sign, it is effectively a reverse-onus situation. Where such proof is forthcoming, prosecution of the charge may have to be reconsidered. But routine prosecutions must not be frustrated by requiring police to prove that substantially compliant speed-limit signs are authorised. The regulations criminalise the erection of an unauthorised speed-limit sign without requiring police to so prove, and the rules do not so require. The position here is therefore effectively the same as under comparable regulations in Western Australia.[16]
[16]Citations omitted.
We consider his Honour was in error in concluding that if a driver were to prove (the onus being on the driver) that a speed-sign was unauthorised, then that is a valid defence. Whilst this hypothesis has some practical attraction, and it is a neat answer to the applicant’s ‘absurdity’ argument, we perceive no legislative basis for it. It was open to parliament to reverse the onus of proof or to create a rebuttable presumption,[17] but they have not done so. The offence under r 20(1) is concerned with physical compliance of a speed-sign and not with the lawful authority to erect the sign. As the legislation is drafted, unlawful erection of a sign is not an answer to the r 20(1) offence if the sign is physically compliant. If parliament consider that it should be such an answer, it would be a simple matter to insert a reverse onus defence or a rebuttable presumption provision. It is not for this Court, however, to act as legislators.
[17]See, eg, RS Rules r 315(2).
Whilst we have identified this error in his Honour’s reasoning, in our view, it is immaterial to our ultimate conclusion. As we have said, parliament has expressed the elements of an offence against r 20(1) in clear and unambiguous terms. The existence of those elements does not depend upon the availability of a reverse onus defence but rather, upon the clearly expressed language of rr 20(1), 21(1), 315 and 316 of the RS Rules. His Honour also reached this conclusion at paragraph 23 of the impugned judgment.
It follows from the above analysis that, while we will grant leave to appeal on grounds 1 and 2, the matter being arguable, the appeal will be dismissed. It will be apparent from these reasons that we agree with the respondent’s notice of contention.
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