McWhirter v Dunlop - [2013] VSC 697

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

IN THE MATTER of section 272 of the Criminal Procedure Act 2009

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IN THE MATTER of the Road Safety Road Rules 2009

S CI 2013 02408

TIMOTHY McWHIRTER	Appellant
v
ANDREW DUNLOP	Respondent

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S CI 2013 02445

JASON TRAN	Appellant
v
MATT HARRIS	Respondent

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 NOVEMBER 2013
DATE OF JUDGMENT:	13 DECEMBER 2013
CASE MAY BE CITED AS:	McWHIRTER v DUNLOP; TRAN v HARRIS
MEDIUM NEUTRAL CITATION:	[2013] VSC 697

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APPEAL FROM MAGISTRATES’ COURT —Exceeding speed limit in breach of r 20 Road Safety Road Rules 2009—Defendant failed to appear — Preliminary brief served— Charge heard and determined ex parte — Whether informant’s statement in preliminary brief sufficient— Use of speed detector device— Sufficiency of evidence— Error in finding sentencing facts - ss 27, 37, 80, 84 Criminal Procedure Act 2009 (Vic), s 79(1) Road Safety Act 1986 (Vic), reg 20 Road Safety Road Rules 2009 (Vic), reg 41, 45, 46 Road Safety (General) Regulations 2009

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr S. Hardy	The Law Offices of Barry Freid
For the Respondents	Mr C. Carr	Craig Hyland, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

Police officers alleged that each of Mr McWhirter and Mr Tran was detected by them driving at an excessive speed in contravention of regulation 20 of the Road Safety Road Rules 2009. Each appellant elected, by non-payment of the infringement notice, to have the matter dealt with by a magistrates’ court.

The respondents duly prepared and served a charge-sheet and summons and a preliminary brief of evidence. In each case, when the matters came on for hearing before the court, neither appellant appeared and the prosecutor proceeded on the basis of the preliminary brief of evidence that had been filed. In each case, the appellant was convicted and fined, ordered to pay statutory costs and all licences and permits held by the appellant was suspended for a period of 12 months.

The matters come before this court as an appeal on a question of law pursuant to s 272 of the Criminal Procedure Act 2009. Each appellant contends that there was not sufficient admissible evidence before the court to permit a finding that the appellant’s vehicle was detected travelling either at a speed in excess of the speed limit or at the alleged speed.

The appeal of Tran is without merit and will be dismissed. The appeal of McWhirter succeeds and I will make orders in substitution for the orders of the primary court. Before explaining my reasons, it is desirable to first set out the applicable statutory provisions.

Elements of the offence

Regulation 20 of the Road Safety Road Rules 2009 provides:

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…

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 McWhirter v Dunlop

Details

AGLC: McWhirter v Dunlop; Tran v Harris [2013] VSC 697
Case: [2013] VSC 697
Decision Date: 13 DECEMBER 2013

CaseChat Overview and Summary

In the case of McWhirter v Dunlop, the appellant was charged with exceeding the speed limit in breach of Rule 20 of the Road Safety Road Rules 2009. The defendant failed to appear in the Magistrates’ Court, resulting in a preliminary brief being served and the charge being heard and determined ex parte. The appellant appealed the decision on the basis that the informant's statement included in the preliminary brief was insufficient, and the use of the speed detector device was not properly established. Additionally, the appellant argued that there was an error in the finding of sentencing facts.

The court examined whether the informant's statement in the preliminary brief was adequate to support the conviction and whether the use of the speed detector device complied with relevant regulations. The court considered the sufficiency of the evidence provided and whether the defendant's rights were compromised due to the ex parte hearing. The court also evaluated the error in finding sentencing facts and its impact on the outcome of the case.

The court found that the informant's statement was sufficient to support the conviction and that the use of the speed detector device was compliant with the regulations. However, the court determined that the error in finding sentencing facts was significant and necessitated a rehearing of the case. The appeal was allowed, and the matter was remitted to the Magistrates' Court for a new hearing.

The final orders of the court included the allowance of the appeal, the remittal of the case to the Magistrates' Court for a new hearing, and the quashing of the original conviction. The court emphasised the importance of ensuring that all procedural requirements are met to uphold the integrity of the judicial process.

Orders