Macdonald v County Court of Victoria
[2013] VSC 605
•8 November 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. 3022 of 2012
| BRUCE MACDONALD | Plaintiff |
| v | |
| COUNTY COURT OF VICTORIA | First Defendant |
| and | |
| PAUL T STEFANIW | Second Defendant |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 April 2013 | |
DATE OF JUDGMENT: | 8 November 2013 | |
CASE MAY BE CITED AS: | Macdonald v County Court of Victoria | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 605 | |
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ADMINISTRATIVE LAW – Judicial Review – Orders in the nature of certiorari or mandamus – Road traffic offence – Conviction and fine in Magistrates’ Court – Appeal to County Court dismissed – Applicability of National Measurement Act 1960 (Cth) and National Measurement Regulations1999 (Cth) – Applicability of s 24(4) of the Infringements Act 2006 –Alleged bias – Alleged denial of procedural fairness – Subpoenas set aside – Road Safety Act 1986 (Vic) s 83, s 83A – Infringements Act 2006 (Vic) s 22 - National Measurement Act 1960 (Cth) s 19A – Charter of Human Rights and Responsibilities Act 2006 s 25, s 27(2).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the First Defendant | No appearance | |
| For the Second Defendant | Ms F Dalziel | Mr Adrian Castle, Solicitor for Public Prosecutions |
HER HONOUR:
On 17 March 2010, in the Magistrates’ Court at Melbourne, the plaintiff, Mr Macdonald, was found guilty of one charge under Road Rule 20 of the Road Safety (Road Rules) Regulations 1999 of exceeding the speed limit of 50 kilometres per hour on 4 April 2008. He was fined $500 without conviction.
In the Magistrates’ Court and again in Mr Macdonald’s appeal to the County Court, the prosecution relied on a certificate of an authorised person under s 83A of the Road Safety Act 1986 to prove that Mr Macdonald drove at 58 km/h in a 50 km/h speed zone. The certificate contains printed images of the rental car Mr Macdonald was driving and what are described as ‘messages’, which state the applicable speed limit and his speed at the intersection of William and Flinders Streets at 11.41pm on 4 April 2008. The certificate indicates that the printed images and messages were produced by a prescribed road safety camera, which is certified by the authorised person to have been tested, sealed and used in the prescribed manner under the Road Safety Act. Mr Kevin Boulton of Serco Traffic Camera Services (‘Serco’) signed the certificate as a person authorised by the Chief Commissioner of Police to issue the certificate under s 83A(1).
Section 83A was in this form on 4 April 2008 and throughout that year:
83A Evidence relating to prescribed detection devices
(1)A certificate in the prescribed form purporting to be issued by an authorised person certifying—
(a)that a prescribed detection device for the purposes of section 66 was tested, sealed or used in the prescribed manner; or
(b)that an image or message described in the certificate was produced by a detection device prescribed for the purposes of section 66 or by a prescribed process; or
(c)as to any other matter that appears in, or that can be determined from, the records kept in relation to the detection device or the prescribed process by the police force of Victoria—
is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate.
(2)In this section authorised person means a person authorised for the purposes of this section by the Chief Commissioner of Police
On 29 March 2012, a judge of the County Court found the charge proven on appeal. Her Honour set aside the orders imposed in the Magistrates’ Court and imposed the same penalty upon Mr Macdonald, fining him $500 without conviction.
Mr Macdonald seeks judicial review of the County Court judge’s decision. He seeks orders in the nature of certiorari quashing it and mandamus directing a rehearing.
The first defendant has notified the Court that it adopts the procedure approved by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman[1] and will abide by the decision of the Court.
[1](1980) 144 CLR 13.
Ground 1
Mr Macdonald’s first ground for seeking an order in the nature of certiorari quashing the County Court decision is premised on the National Measurement Act 1960 (Cth) and National Measurement Regulations 1999 (Cth) applying. The first ground of appeal is stated in these terms in Mr Macdonald’s originating motion:
1. …
The alleged conviction was secured under a Victorian Act of law that was clearly incapable of implementation at the time of the offence in as much as the Victorian Authorities had not complied with prerequisite requirements that were mandated in Commonwealth Legislation in order for them to use the methods and devices that they did to bring about the charge.
In the course of the County Court hearing, the learned judge prevented Mr Macdonald from making further submissions challenging the speed camera evidence on the grounds that there was no proof of any applicable requirement under the National Measurement Act. The Court ruled that the submissions were irrelevant.
Mr Macdonald raised the same argument, premised upon inconsistency between the Road Safety Act proof provisions and the National Measurement Act, in a very similar application for judicial review of a County Court conviction for speeding offences on 11 and 16 April 2008, which followed an appeal from the Magistrates’ Court.[2]
[2]Macdonald v County Court of Victoria [2013] VSC 109.
He had also been driving rental vehicles on these dates, which were seven and 12 days after the date of the alleged offending on 4 April 2008. He had been prosecuted for exceeding the speed limit. He had argued that the prosecution had failed to produce certificates establishing that the speed cameras had been verified in accordance with the requirements of reg 18 of the National Measurement Regulations.
Emerton J held that the regulations upon which Mr Macdonald relied were largely permissive in character and that neither they nor the National Measurement Act as it stood at the time of the offences required that speed camera types or individual speed cameras be certified, verified, calibrated or approved.[3] In Agar v Dolheguy,[4] Macaulay J had previously held that there was no regulation relating to a speed measuring device in the National Measurement Regulations as at 11 November 2010.[5]
[3]Ibid [32].
[4][2010] VSC 506, [55].
Mr Macdonald argues before me that Emerton J was wrong in concluding that there was no requirement for certification of the speed camera. He bases his argument on this statement from an online publication of the Australian Government’s National Measurement Institute:
Legal Metrology
Legal metrology comprises all measurements carried out for any legal purpose and includes measurements that are subject to regulation by law or government decree. It has its historical origins in the need to ensure fair trade, but also includes measurements in areas such as health and safety (e.g. sound level meters and radiation dosimeters) and traffic control (e.g. vehicle speed and breath analysers).
To support the needs of the National Measurement system, NMI appoints three categories of legal metrology authorities: approving authorities, certifying authorities and verifying authorities…
Whatever the definition of ‘legal metrology’ may be, and even if the National Measurement Act might be applicable to a road speed camera, there is nothing in the National Measurement Regulations to persuade me that Emerton J was wrong and that that certification of a road speed camera is mandatory under the legislation or regulations.
It follows that I am not persuaded by any of Mr Macdonald’s references to specific sections[6] of the National Measurements Act to support his argument that there were applicable regulations (regs 36-44 and 55-8) containing obligations not fulfilled in relation to road safety cameras.
[6]For instance, he relied on the s 3 reference to the applicability of the legislation to time intervals and s 5, which states that the act applies to the Crown.
By ground 1, Mr Macdonald seeks to argue that the County Court lacked jurisdiction to make a conviction under provisions of the Road Safety Act which were inconsistent with the Commonwealth legislation requiring such certification. This ground must fail.
In so far as this challenge should be taken to be an allegation of error of law on the face of the record, it is also not made out.
Ground 2
Mr Macdonald relies upon the same inconsistency argument as the premise for his second ground for relief, expressed as follows:
2. …
It appears that the adjudication of the matter has not been in keeping with the usual considerations afforded a Defendant firstly in as much as the Court acted in contravention of the Ultra Vires Rule presiding over a matter where it lacked authority or capacity and secondly acted in a manner that breached or impinged on the No Bias Rule by making findings outside of the ones it ought to have correctly made.
For the reasons already given, this ground should be dismissed to the extent that it relies upon the alleged obligation under the National Measurement Act.
The learned judge did not demonstrate any bias by making the findings she did as to the relevance of the National Measurement Act and regulations or otherwise.
Mr Macdonald contends too that the learned judge’s decision was ultra vires because the relevant agency had failed to deal with his application for review of the infringement notice. He argues that in those circumstances, the notice had been deemed to be withdrawn under s 24 of the Infringements Act 2006. This argument cannot succeed (as Emerton J had also pointed out[7]) because, under s 21 of the Infringements Act, s 24 and the other provisions of Division 3 of Part 2 relied upon by Mr Macdonald did not apply to an infringement offence to which s 89A of the Road Safety Act applied. Section 89A of the Road Safety Act applied at relevant times to excessive speed infringements such as that for which Mr Macdonald had been charged.
[7]Macdonald v County Court of Victoria [2013] VSC 109 [44]–[47].
Mr Macdonald makes an additional challenge to the learned judge’s decision. He appears to argue that it was ultra vires on the grounds that the learned judge erred in reaching her conclusion on the basis of certificates tendered under ss 83 and 83A of the Road Safety Act which, he argues, could not be linked. Even if such an argument could be made in this application for judicial review, the certificate under s 83A constituted evidence upon which it was open for the judge to find the charge proven.
Her Honour did not demonstrate bias, as Mr Macdonald also alleges, by her interaction with Mr Halse, counsel for the prosecution. Mr Macdonald argues that the learned judge effectively invited particular responses from Mr Halse. He cites the transcript where her Honour asked whether Mr Halse wanted to respond to Mr Macdonald’s submissions about the subpoenas issued against Mr Boulton and Mr Laizans of SGS Australia.[8] He also points to the judge’s questions of Mr Halse as to whether he wanted to respond to a particular submission by Mr Macdonald in relation to the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) and as to whether Mr Halse’s procedural concern was in relation to notice.[9] There was nothing to indicate any bias or partiality on the part of her Honour in the exchanges he cites, which were entirely appropriate in the circumstances.
[8]Transcript of Proceedings, Bruce Eggett Macdonald v DPP (County Court of Victoria, Judge Wilmoth, 29 March 2012) 5.11-6.
[9]Ibid 27.23-7.
Ground 3
The third ground upon which Mr Macdonald seeks certiorari or mandamus is expressed in this way in his originating motion:
3. …
The plaintiff has been forestalled at every turn from presenting evidence before the lower courts and more recently from the obtaining the presence of witnesses that were subpoenaed to appear. The right to obtain evidence and call witnesses has been denied or averted.
Paragraphs 81 to 130 of Mr Macdonald’s affidavit relate to this third ground. Mr Macdonald makes wide-ranging allegations with regard to the learned judge’s decision to set aside the subpoenas to Mr Boulton and Mr Laizans. He goes so far as to allege interference with witnesses by Mr Halse, breach of his rights under s 25 of the Charter to examine witnesses and obtain evidence and that he was denied the opportunity of adducing evidence in relation to the subpoenas. There is no substance in any of these allegations.
Mr Macdonald had issued the subpoenas against Mr Boulton and Mr Laizans on 26 March 2013, requiring their appearance at the hearing on 29 March 2013. Rule 42.03(8) of the applicable Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’) provides that the last day for service of a subpoena falls five days before the date on which compliance is required unless another date has been fixed by the court. The subpoenas were not only short served but there had been a handwritten amendment changing the issue date to 22 March 2013, despite the Court’s stamp indicating the 26 March 2013 date of issue. The subpoenas sought the production of documents by Mr Boulton which included ‘any other document, record or thing related to the production of certificates under s 83 of the Road Safety Act 1986 that apply or are likely to apply to infringements issued by you in or around November of 2008’. Mr Boulton did not issue infringements.
Neither subpoenaed man appeared. Mr Halse sought to have the subpoenas set aside under r 42.04(1) of the Rules. He argued that the subpoenas amounted to an abuse of process.
As far as Mr Laizans was concerned, Mr Halse submitted that he was ‘related to’ another testing authority and had had nothing to do with Mr Macdonald’s case.
Mr Macdonald sought to defend the subpoena to Mr Laizans on the basis that Mr Laizans was ‘the chief tester for SGS’. Mr Halse submitted that Mr Laizans had signed a certificate in similar form to that under s 83 relating to the charges in respect of Mr Macdonald’s driving on 11 and 16 April (the subject of the application for judicial review before Emerton J). Mr Macdonald told the judge that Mr Laizans’ evidence about certification of cameras as tested and sealed was ‘quintessential and quite relevant’.[10]
[10]Ibid 12.5-14.
Mr Halse challenged the subpoena to Mr Boulton on the grounds that it was short served and that in any event, the material sought was irrelevant and the subpoena amounted to a fishing expedition. The request for the documents sought had no forensic purpose.
Mr Macdonald then stated that he would not insist on the production of documents sought by his subpoenas, arguing that each of Mr Boulton and Mr Laizans had had adequate time to respond to the summonses to give evidence. Mr Boulton was a witness because it was his certificate which the prosecution relied upon. His certificate would stand unless Mr Macdonald could give evidence to the contrary. Mr Boulton was the only person who could give such evidence so he should be called, so that Mr Macdonald could ‘extract it from him’.[11]
[11]Ibid 14.2.
The learned judge set aside both subpoenas, referring to the short service and Mr Boulton’s inability to give evidence about the operation of a speed testing machine in every case. She noted her concern in relation to the alteration of the issuing date. Her Honour accepted that it would be possible for Mr Macdonald to call evidence challenging matters in the certificate.[12] She was not, however, persuaded by Mr Macdonald that there was anything to challenge in the certificate under s 83A of the Road Safety Act upon which the prosecution relied.
[12]Citing DPP v Meade [2011] VSC 358.
Mr Macdonald was given ample opportunity to make submissions and was not prevented from addressing any evidence, as he alleges. Nor was he disadvantaged by not addressing the prosecutor’s reference to a decision of this Court in DPP v Meade.[13] The learned judge simply noted Curtain J’s acknowledgement of the possibility of challenging a certificate under s 83A of the Road Safety Act and went on to conclude that Mr Macdonald had failed to identify the basis for any such challenge through the subpoenaed witness or material, or, in other words, to establish the necessary forensic purpose for the subpoenas.[14] Mr Macdonald makes no submissions relating to any applicable aspect of Curtain J’s decision before me. He agrees that he had the opportunity to read the case in the time leading up to his application, but has not done so.
[13][2011] VSC 358.
[14]Transcript of Proceedings, Bruce Eggett Macdonald v DPP (County Court of Victoria, Judge Wilmoth, 29 March 2012) 2.26-3.2.
The judge did not show bias against Mr Macdonald by rejecting his arguments in relation to the subpoenas and in determining then to set them aside.
Further, there was nothing improper in Mr Halse’s behaviour with regard to the subpoenas. He did explain to her Honour that Mr Boulton was unavailable to appear at the court and that a Mr David Thompson had appeared as a matter of courtesy to the court to object to the subpoena on the grounds of its short service. That did not amount to interference with a witness, as Mr Macdonald alleges.
In so far as Mr Macdonald seeks to argue before me that the judge also erred in making a decision not open to her on the evidence, this must be rejected given the certificates before the court which sufficed as proof under s 83A of the Road Safety Act.
Ground 4
Mr Macdonald states the fourth ground for the relief he seeks in this way:
4….
The Plaintiff has been denied the capacity to defend the charge made against him and thus denied justice.
He argues that he was denied natural justice in relation to the defence of the charge. He characterises the prosecution as malicious and illegitimate. He disputes the need for a subpoena to be issued for a forensic purpose. He challenges the adequacy of the evidence. He argues that the modern court system should be characterised as a Star Chamber, given the ‘instigation’ of the Office of Public Prosecutions within the Supreme Court Act 1986. He argues that the learned judge was not impartial in her encouragement of Mr Halse’s submissions.
There is no substance to any of his criticism of the process before the learned County Court judge. I have already addressed a number of the issues Mr Macdonald relies upon to argue that he was deprived of natural justice. I have carefully considered the transcript of the hearing in the County Court and find no evidence to support any of the other allegations made (to the extent that sense can be made of them).
In his affidavit, Mr Macdonald also states that the fine imposed by the County Court was ‘illegal’ in that it was greater than the amount on the infringement notice. He claims that this was in contravention of s 27(2) of the Charter.
Section 27(2) provides:
27 Retrospective criminal laws
(2)A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.
Mr Macdonald raised a substantively similar argument before Emerton J. Her Honour noted that:
The focus of s 27(2) is ‘the penalty that applied to the offence’ when the offence was committed. The penalty that applied to the offence at the time that it was committed is the penalty specified in or authorised by the legislation or rules in force at that time.[15]
[15]Macdonald vCounty Court of Victoria [2013] VSC 109, [70].
Her Honour found that to succeed on an argument relating to s 27(2) of the Charter, Mr Macdonald needed to ‘establish that the County Court imposed a penalty on him that it was not authorised to impose under the laws in force at the time of the offences’ and that Mr Macdonald had not done so.[16] Nor has he done so in the current proceeding.
[16]Ibid [72].
Ground 4 must also fail.
Mr Macdonald’s application should be dismissed.
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