McWhirter v Dunlop
[2013] VSC 697
•13 DECEMBER 2013
| 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
- and –
IN THE MATTER of the Road Safety Road Rules 2009
S CI 2013 02408
| TIMOTHY McWHIRTER | Appellant |
| v | |
| ANDREW DUNLOP | Respondent |
- and -
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 road where the driver is driving.
Penalty:In the case of drivers of heavy vehicles exceeding the speed-limit by less than 35 km per hour, 20 penalty units.
In the case of drivers of vehicles other than heavy vehicles exceeding the speed-limit by 45 km per hour or more, 20 penalty units.
In the case of drivers of vehicles other than heavy vehicles exceeding the speed-limit by 35 km per hour or more but less than 45 km per hour, 15 penalty units.
In the case of drivers of vehicles other than heavy vehicles exceeding the speed-limit by less than 35 km per hour, 10 penalty units.
For the appellants to have been convicted, it was necessary for the prosecution to establish the following matters beyond reasonable doubt.
(a)That the appellant was the driver of a motor vehicle.
(b)That the driver was driving a motor vehicle on a (length of) road.
(c)The speed limit that applied to the driver for the length of road where the driver was driving.
(d)The speed of the appellant’s vehicle exceeded the applicable speed limit.
Upon proof of these matters, certain further facts were relevant to establish the applicable penalty:
(a) whether the vehicle is a heavy vehicle; and
(b) whether the driver has exceeded the speed limit by -
(i) 45 kph or more;
(ii) 35 kph or more but less than 45 kph;
(iii) less than 35 kph.
Procedure for determining the charge
Each appellant’s proceeding was commenced by filing a charge-sheet and summons accompanied by a preliminary brief of evidence. Section 27 of the Criminal Procedure Act 2009 provides that a charge for a summary offence is to be heard and determined summarily in accordance with Chapter 3 of the Act. There was no issue on the appeal about initiating procedures or service on each appellant of the charge-sheet and summons and the preliminary brief.
Section 37 of the Act prescribes what a preliminary brief must contain. Relevantly, a preliminary brief must include a statement made personally by the informant. Section 37 further provides:
(2)A statement by the informant in a preliminary brief must be a complete and accurate statement of the material available to the prosecution at the time the statement is sworn, signed or attested and must include—
(a)a statement of the alleged facts on which the charge is based, including reference to the material available to the prosecution to support the alleged facts; and
(b)a description of the background to and consequences of the alleged offence, if known; and
(c)a summary of any statements made by the accused concerning the alleged offence, including any confession or admission; and
(d)a list of the names of all persons who, at the time the statement is signed, may be called by the prosecution as witnesses at the hearing of the charge, indicating whether those persons have made statements; and
(e)a list of any things the prosecution may tender as exhibits, indicating whether they are in the possession of the prosecution at the time the statement is signed.
(3)A preliminary brief may include any other information, document or thing that is relevant to the alleged offence and may assist the accused in understanding the evidence against the accused that is available to the prosecution.
Section 38 specifies the formal requirement for the informant’s statement. There was no issue concerning compliance with formalities on the appeal.
These provisions, which govern the procedure that is relevant on these appeals, may be compared with the procedure for pre-hearing disclosure by service of a full brief under ss 39-41 of the Act.
Section 80 of the Act provides that if an accused does not appear in answer to a summons to answer to a charge for a summary offence, the court may proceed to hear and determine the charge in the absence of the accused in accordance with Part 3.3 of the Act. Where a preliminary brief has been served, the admissibility of evidence in the absence of an accused is governed by s 84 of the Act which provides:
84Admissibility of evidence in absence of accused where preliminary brief served
(1) If—
(a)under section 25(1) or 80 the Magistrates' Court proceeds to hear and determine a charge in the absence of the accused; and
(b)the informant has served a preliminary brief on the accused in accordance with Division 2 of Part 3.2 at least 14 days before the date of the hearing under paragraph (a); and
(c)the Magistrates' Court considers that the matters set out in the preliminary brief disclose the offence charged—
the following are, subject to subsections (4) and (5), admissible in evidence, despite the rule against hearsay—
(d) the informant's statement in the preliminary brief;
(e) any exhibit referred to in the informant's statement.
(2)Without limiting any other power conferred on the Magistrates' Court, if the court considers that the matters set out in a preliminary brief do not disclose the offence charged, the court may require the informant to provide additional evidence.
(3)The additional evidence referred to in subsection (2) is inadmissible unless—
(a)it is in the form of written statements that comply with section 38; and
(b)a copy of each statement has been served on the accused at least 14 days before the Magistrates' Court considers the additional evidence.
(4)The Magistrates' Court may rule as inadmissible the whole or any part of a preliminary brief, a statement or an exhibit.
(5)The criminal record of the accused or a statement that the accused has no previous convictions or infringement convictions, when served in a preliminary brief, is only admissible for the purpose of sentencing in accordance with section 86.
(6)This section does not limit the power of the Magistrates' Court to proceed to hear and determine the charge in the absence of the accused under section 25(1) or 80 on the basis of sworn evidence given by or on behalf of the informant if the informant has not served a preliminary brief on the accused.
In each case, speed was measured using a speed detection device and s 79(1) of the Road Safety Act 1986 is relevant. Section 79(1) provides that evidence of the speed of a motor vehicle as indicated by a prescribed speed detector when tested, sealed and used in the prescribed manner is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the speed of the motor vehicle on the relevant occasion. A prescribed speed detector means a type or class of speed detector that is prescribed by regulations for the purposes of the Act. Thus, for the informant to rely on the presumption of proof of speed afforded by s 79(1), he or she must establish three matters about the device used to detect the speed, including that:
(a)the prescribed speed detector used was tested and sealed;
(b)the detector was used in the manner prescribed; and
(c)there is an absence of evidence of speed that is contrary to the indicated speed.
Regulation 41 of the Road Safety (General) Regulations 2009 states:
41 Prescribed speed detectors
For the purposes of the definition of prescribed speed detector in section 3(1) of the Act, the following speed detectors are prescribed—
(a) a digitector; and
(b) the following laser devices—
…
(ii) the Prolaser 11 Model Auslaser;
…
(iv) the Prolaser III;
(v) the Pro-Lite;
(vi) the Pro-Lite +;
(vii) the ProLaser 4 (also known as the PROLASER 4);
(viii)the DragonEye Compact (also known as the DragonEye COMPACT); and
(c) the following radar devices—
(i) the HR4;
(ii) the Falcon (also known as the FALCON);
(iii) the KR-10SP;
(iv) the Silver Eagle (also known as the SILVER EAGLE);
(v) the Silver Eagle II (also known as the SILVER EAGLE II);
(vi)the Stalker Dual DSR (also known as the STALKER DUAL DSR);
(vii)the Directional Golden Eagle II (also known as the DIRECTIONAL GOLDEN EAGLE II);
(viii) the Falcon HR;
(ix) the Raptor RP-1;
(x)the Directional Talon (also known as the DIRECTIONAL TALON);
(xi) the Stalker II SDR (also known as the STALKER II SDR).
Regulations 45 and 46 prescribe the manner in which a laser or radar device, respectively, is to be used. Relevantly, first, whenever the operator connects the device to a source of electricity, the operator must ensure that, in the case of a laser device, all elements of the speed display are illuminated and in the case of all radar devices other than the Falcon HR and the Raptor RP-1, a reading of (888) is displayed on the digital target speed display. Second, with radar devices, the doppler audio signal of the radar device must be set at a level clearly audible to the operator who may take a reading if the signal indicates normal operation. Third, although this requirement varies dependent on the type of device being used, the operator must activate the device when aimed in the direction of a motor vehicle within the operator’s field of vision and then observe the reading displayed on the digital target speed display. Fourth, the device must have been tested in accordance with reg 4 within 12 months before the occasion of its use. Fifth, the device must have been sealed in accordance with reg 43 at the time that it was last tested.
There was no evidence of speed that was contrary to the indicated speed in either case.
McWhirter’s appeal – relevant facts
It is convenient to explain the contentions of the parties by reference to Mr McWhirter’s appeal which, the parties agreed, presented the circumstances most favourable to the appellants.
The charge sheet and summons stated the charge in these terms:
The accused at Bessiebelle on 13/12/2012, being the driver of a vehicle on a length of road, namely Woolsthorpe-Bessiebelle Road, did drive over the speed limit applying to the driver for the length of road where the driver is driving, to which a speed limit sign of 100 kph applied between Dunmore State Forest and the first house east of Dunmore State Forest. Detected speed 151 kph. Alleged speed 149 kph.
The informant’s statement, acknowledged by him as true and correct, was in the following terms:
On Thursday the 13th of September 2012, at approximately 5.25 pm police observed the accused driving a black Volvo registration YXA-581 travelling at an excessive speed on the Woolsthorpe-Heywood Road, Bessiebelle. Police checked the speed of the defendant’s vehicle using Mobile Mode Radar Device No. 599S and it was seen to be 151 kph. The speed of the defendant’s vehicle remained constant for a period of approximately five seconds. The radar device used by police on this occasion was a Stalker No. 599S which had been tested in accordance with the Road Safety (General) Regulations 2009 and seals were intact. The certified date of the radar was 22/11/2012. The accused reason: ‘I know I did wrong thing sir, I pleading with you I have four young kids don’t take my car’.
The exhibit list forming part of the informant’s statement referred to three exhibits:
·a radar certification certificate;
·a prior history; and
·a notice to appear letter.
However, the copy of the preliminary brief of evidence exhibited by the appellant included copies of two further documents, apparently as exhibits. These were:
·a copy of infringement notice No. 50880216 2; and
·a driver’s licence certificate.
Although it was not in issue that these documents formed part of the preliminary brief, neither is an exhibit referred to in the informant’s statement.
Submissions for the appellants
The appellants each contended that the relevant principle was that stated by Gillard J in Hannon v Norman:[1]
The fact that the defendant did not appear does not entitle the prosecution to obtain a conviction without proper proof of the elements of the charge. Whilst the objection to the tendering of inadmissible evidence may be waived by a litigant present at a hearing, the mere absence of the litigant does not entitle the Court to ignore the principles of evidence. Where a proceeding is heard ex parte, it is incumbent upon the Court to closely examine the evidence to ensure that it is admissible. It would appear that neither the magistrate nor the prosecutor fully understood the requirements of the Act and the Schedule with respect to an ex parte hearing, where a brief of evidence had been served pursuant to s.37.
[1][2006] VSC 228 [21].
The appellants contended that the primary court fell into error in concluding that the evidence in the preliminary brief was sufficient to prove the offence charged because:
(a)there was no evidence that a prescribed speed detector had been used. The preliminary brief refers to a ‘Mobile Mode Radar Device’ and a ‘Stalker’. No device so described is identifiable as a prescribed speed detector under reg 41; and
(b)there was no evidence before the court that the speed detector device was used in accordance with reg 46.
The exhibited certification that the device had been tested in accordance with the Road Safety (General) Regulations 2009 on 22 November 2012, which is within 12 months before the occasion of its use, did not identify that the device tested was a prescribed speed detector. The device was certified as properly sealed in accordance with those regulations and the informant stated that the seals were intact. Although these matters must necessarily be established, they are insufficient to prove that the device was used correctly. The appellant submitted that there was no evidence before the court that the operator had ensured that the elements of the speed display were illuminated when it was connected to a source of electricity, that the audio signal of the device was properly set and operated to signify normal operation, that the device was activated when aimed in the direction of the appellant’s motor vehicle within the operator’s field of vision, and that the reading displayed on the digital target speed display was then observed.
It followed, in the appellant’s submission, that the respondent could not rely for proof of the speed of the motor vehicle on the occasion in question on the reading displayed on the speed detection device.
The appellant submitted that s 84 of the Criminal Procedure Act did not assist the respondent. The court ought to have concluded that the matters set out in the preliminary brief did not disclose the offence charged and, accordingly, the informant’s statement and the exhibits referred to in that statement were not admissible in evidence. It followed that there were no relevant admissions or other evidence that could sustain the charge and the magistrate erred in law in failing to dismiss it.
The respondent’s submissions
The respondent submitted that the appellant’s arguments fail at four levels. The appellant’s submissions incorrectly assume:
(a)that the Magistrates’ Court was bound to consider only ‘admissible evidence’ in exercising the jurisdiction pursuant to ss 80 and 84 of the Criminal Procedure Act;
(b)that the Magistrates’ Court could not act upon a radar or laser reading in the preliminary brief if that brief did not disclose all the facts that founded the application of s 79 of the Road Safety Act;
(c)there was other evidence in the preliminary brief, quite apart from the speed detection device reading, which was admissible against the appellant and capable of founding a conviction. The radar device reading was admissible on sentence and capable of founding a finding for sentencing purposes as to the speed that the appellant was travelling at; and
(d)the Magistrates’ Court’s jurisdiction to act upon the preliminary brief was predicated upon satisfaction that the offence was made out. The Magistrates’ Court, upon the hearing that it conducted, had no power to enter a verdict of acquittal. That verdict could not now be entered by this court.
The respondent invited this court to accept that the purpose of a preliminary brief is to provide, at an early stage in a summary proceeding, an outline of the prosecution case and to provide a factual basis for the court to determine uncontested matters. The Criminal Procedure Act, properly construed, does not require that a preliminary brief contain material which would be admissible according to the rules of evidence. Rather, its function is to set out the facts alleged by the prosecution, with reference to the material available to support those facts, rather than that material itself. For example, only a summary of an admission or confession is required. Where an expert opinion is relied on, only the conclusion need be stated. These requirements may be contrasted with the requirements for a full brief, which is intended for cases where the prosecution case is contested.
The court’s jurisdiction to proceed on the basis of a preliminary brief is dependent upon the accused being on notice of the prosecution case and failing to attend to contest that case. Further, the court may only proceed on the basis of a preliminary brief if it considers that the matters set out in the preliminary brief disclose the offence charged. On this occasion the informant may be absent. If the informant is not present to give evidence, his statement in the preliminary brief of evidence is hearsay and inadmissible.[2] However, s 84(1) renders the informant’s statement and any exhibits to it admissible notwithstanding that it is hearsay, subject to a discretion.[3]
[2]Section 59 Evidence Act 2008.
[3]See s 84(4) Criminal Procedure Act.
The respondent contends that the context for, and purpose of, preliminary briefs in ex parte hearings is evident from the Act. First, the Act contemplates that the attendance of the informant is not required when the accused does not appear to contest the charges. The hearing and determination of the charges may proceed on the basis of the preliminary brief. This jurisdiction is enlivened where the court is satisfied that the accused is aware of the factual allegations and has not attended court to answer those allegations. The simplification of the mode of proof in such circumstances is consistent with the statutory purpose to, inter alia, ‘simplify […] the laws relating to criminal procedure in the Magistrates’ Court.’[4] The respondent draws the court’s attention to the significant safeguards to protect an accused found guilty by way of the summary proceeding on an ex parte hearing based on a preliminary brief.
·The informant is liable to the penalties of perjury for any false statement in a preliminary brief.[5]
·Only relatively modest sentences may be imposed.[6]
·A sentenced person will receive notice of the result of the hearing.[7]
·The decision will automatically be set aside if the sentenced person applies for a rehearing of the charge within 28 days after receiving that notice, or in certain other circumstances.[8]
·There is an additional broad discretion to set aside the decision and grant a rehearing in the Magistrates’ Court in other circumstances.[9]
·There is a right to a hearing de novo in the County Court on appeal.[10]
[4]Section 1(a) Criminal Procedure Act.
[5]Section 38 Criminal Procedure Act.
[6]Section 87 Criminal Procedure Act.
[7]Section 87(4) Criminal Procedure Act.
[8]Section 94 Criminal Procedure Act.
[9]Section 92 Criminal Procedure Act.
[10]Sections 254 and 256(1) Criminal Procedure Act.
The respondents invited me to find that where an accused is aware of that case but does not attend to answer it, the Criminal Procedure Act provides a scheme that simplifies proof of the prosecution case by not requiring the informant to attend court, and making the contents of the preliminary brief prima facie admissible, but subject to an extensive regime of safeguards for an accused person who is the subject of such a hearing.
Analysis – McWhirter appeal
The primary court’s first task was to determine whether the matters set out in the preliminary brief disclosed the offence charged. If the court was satisfied about that matter, s 84 makes the informant’s statement and any exhibit that it refers to admissible in evidence on the ex parte hearing. The respondent contended that this requirement was something less than being satisfied that the informant could establish the elements of the charge if proper proof was required. The respondent submitted the statute envisages that a preliminary brief contains allegations and factual assertions, not evidence. Because s 84(1)(c) refers to ‘the matters contained in’ rather than ‘the evidence set out in’ the preliminary brief, the informant is not required to set out the evidence that is sufficient to prove the charge in a preliminary brief. To interpret the requirement differently substantially defeats the distinction drawn by the statute between a preliminary brief and a full brief. A full brief is required when a contested hearing is contemplated.
In one sense, a preliminary brief can serve as a summary or outline of the prosecution case appropriate for use when a defendant pleads guilty. But that is a different circumstance to an ex parte hearing. As the Court of Appeal said in R v D'orta-Ekenaike:[11]
Evidence of an earlier plea of guilty amounts to a formal confession of the existence of every ingredient necessary to constitute the offence: see De Kruiff v Smith [1971] VR 761, 765; R v Henry [1917] VLR 525, 526.
The failure of the defendant, who has been served with a preliminary brief, to appear to contest the charges is not a formal confession of the existence of every necessary ingredient of the offence.
[11][1998] 2 VR 140, 147.
There is nothing in the statute that, in my view, relieves the prosecution of the obligation to demonstrate the existence of every necessary element of the offence when proceeding ex parte on a preliminary brief. The task of determining whether the matters disclosed in the preliminary brief disclose the offence charged will be discharged when the magistrate considers, meaning is satisfied, that the matters set out in the preliminary brief demonstrate that evidence is available to prove, beyond reasonable doubt, every necessary element of the offence.
In Morris v R,[12] the High Court was considering the inquiry to be undertaken by an Appeal Court as to the sufficiency and quality of the relevant evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused. Mason CJ said:[13]
The court's duty was to satisfy itself that there was “a sufficiency of legal evidence to satisfy reasonable men to the exclusion of any reasonable doubt”, in the words of Dixon J in McKay v R (1935) 54 CLR 1, 9.
Although this task is dissimilar the court’s inquiry under s 84(1)(c), the Chief Justice’s observation is apposite when considering the nature of the present inquiry.
[12](1987) 74 ALR 161.
[13]Ibid, 168.
The somewhat illusory distinction drawn by the respondent between ‘the matters contained in’ rather than ‘the evidence set out in’ the preliminary brief is not to the point. A brief prepared for service on a defendant and filed with the court is not evidence per se. It is, as the statute makes clear, pre hearing disclosure of the prosecution case. It is disclosure of the proposed evidence.
Matters disclosed by a preliminary brief may become evidence at a hearing of the charges. A witness may give oral evidence of the matter disclosed, or a document from the preliminary brief may be tendered. In such cases, the court receives direct evidence, the admissibility of which is determined by reference to the Evidence Act 2008 (Vic). Matters disclosed by a preliminary brief may also become evidence when parts of the preliminary brief are admissible in the hearing before the court as evidence by force of a statutory provision such as s 84 of the Act. The informant’s statement in the preliminary brief is a representation made by the informant at the time that he acknowledged his statement that he intended to assert that the existence of a fact can be proved in a particular way. Thus, the fact that Mr McWhirter was driving a black Volvo motor vehicle registration YXA-581 on the Woolsthorpe-Heywood Road, at Bessiebelle can be proved by the informant’s direct observation of those matters. The fact that speed detector No. MR599S was tested in accordance with the applicable regulations can be proved by tendering a certificate, a process of proof permitted by statute.
The respondents contended that I should not apply the observations of Gillard J in Hannon v Norman, set out above. They contended that those observations, because they were made in a different statutory context, are not helpful. I disagree. It is true that the appeal concerned an offence against s 49(1)(f) of the Road Safety Act1986 (driving while intoxicated), involving an informant who gave oral evidence to the court which was proceeding ex parte, and in which the brief of evidence had been served under the provisions of the Magistrates Court Act 1989. Those provisions were repealed by the Criminal Procedure Act. Gillard J sets out at length the statutory scheme then applicable.[14] There is no material distinction to be drawn between that statutory scheme and the Criminal Procedure Act that renders inapplicable the general proposition identified by Gillard J. With respect, I agree with his Honour’s statement. In my view it has present application.
[14][2006] VSC 228 [17]–[23].
I was also referred to the decision of Williams J in Challis v Williams.[15] This proceeding was an appeal from a conviction for exceeding the speed limit by 45 kph or more under reg 20 of the Road Safety Road Rules 2009. The charge had been heard at an ex parte hearing under s 80 of the Criminal Procedure Act. It was common ground that the preliminary brief had been served on the appellant in accordance with s 84 of the Act. The prosecution relied upon the material in the preliminary brief. A concession was made by counsel for the respondent that there was insufficient evidence to sustain the conviction, in the absence of admissible evidence of speed measured by a device which had been tested and sealed in that prescribed manner. Further, it was conceded that the reading from the device was not admissible under s 79 of the Road Safety Act because the preliminary brief did not foreshadow proof that he device been tested and sealed in the prescribed manner under reg 45 of the Road Safety (General) Regulations 2009 within 12 months prior to its use. Her Honour, citing Gillard J in Hannon v Norman, stated, in the context of the Criminal Procedure Act, that the use of the summary procedure in the absence of the defendant does not entitle the prosecution to obtain a conviction without proper proof of the elements of the charge.
[15][2013] VSC 490.
I agree, with respect, with both Gillard J and Williams J when they describe the limits to which a preliminary brief may be put and, in particular, that the obligation remains with the prosecution to properly prove the elements of the charge.
The court could be satisfied that the matters set out in the preliminary brief disclosed the offence charged because the prosecution disclosed by that brief how the necessary elements of the offence charged would be proved. However, the McWhirter brief was of a poor standard and two elements of the offence would not be proved in the manner primarily intended by the informant if his statement was admitted into evidence, those matters being:
(a)the speed limit that applied to the driver for the length of road where the driver was driving; and
(b)whether the speed of the appellant’s vehicle exceeded the applicable speed limit by more than 45 kph.
These elements of the offence warrant further analysis. The statement was deficient in failing to record any observations by the informant of the speed limit that applied to the driver for the length of road where the driver was driving. The respondent contended before me that the brief established that matter by reference to the infringement notice, in which the box headed ‘Permitted Speed’ has been completed with the entry 100 kph. However, the infringement notice is not admissible under s 84 since it was not included in the exhibit list verified by the informant’s statement in the preliminary brief. Although the copy infringement notice appears to be signed by the informant, it does not comply with s 38 of the Criminal Procedure Act.
The statement was also deficient because I am persuaded that the informant, by exhibiting the radar certification and stating that the seals were intact, intended to prove the speed alleged by the procedure under s 79 of the Road Safety Act. The informant’s statement, if admitted into evidence, does not satisfy all of the requirements of the section to permit proof of the speed of the appellant’s vehicle by use of the device. As the appellant correctly contends, the informant has not identified that a prescribed speed detector had been used, nor has he proved that the device which was used, assuming that it was a prescribed speed detector was used in accordance with reg 46. The preliminary brief does not satisfy the preconditions that permit proof of speed by use of a prescribed speed detector. Section 79 cannot operate to remove any doubts about the quantum of the detected speed. Further, the respondent’s statement refers to what was done by ‘police’ and cannot establish that the respondent could give evidence of any observation.
However, s 79 is without prejudice to any other mode of proof of speed. Relying on this saving condition, the respondent contended that, and in the absence of evidence to the contrary, the court could be satisfied that the charge could be proven. First, the respondent contended that although s 79 of the Road Safety Act provided one particular means by which evidence of this particular speed measuring device may be admitted it was not the only means. The respondent contended that the respondent’s assertion that the device produced a reading of 151 kph in the preliminary brief was nonetheless admissible because that statement proved that the device had been tested in accordance with the regulations and was accurate to within 2 kph. Further, the device had been tested and sealed only weeks before it was used. I do not accept that those matters, standing alone, permit reliance upon a readout from a device that is not properly identified as a prescribed device and in circumstances where there is no evidence as to the manner in which it was used. Without the benefit of the statutory presumption, there will be a reasonable doubt about the alleged detected speed.
Next, the respondent contended that the reason given by the appellant was capable of constituting an admission of guilt that the appellant was speeding. The respondent contended that the admission did not simply establish guilt. The court was entitled to infer from the plea that police not take the appellant’s car, that the appellant believed that he had been speeding to such an extent as to enliven a power in the police to impound the appellant’s car. The respondent submitted that the appellant’s statement in the preliminary brief was capable of constituting an admission not only that he had been speeding but that he had been speeding by a gross amount. Further, the informant states that police observed the appellant driving a black Volvo travelling at an excessive speed. Having regard to the whole of the informant’s statement, the court could be satisfied to the requisite standard that the adjective ‘excessive’ means in excess of the speed limit rather than ‘in excess of a prudent speed in the prevailing circumstances’.
In Wright v R[16] the High Court held that there is no rule of criminal law that a person charged with a criminal offence cannot be convicted upon evidence consisting solely of his confession.
[16](1977) 15 ALR 305.
I am satisfied that it was open to the magistrate to consider that the matters set out in the preliminary brief disclosed the offence of disobeying the speed limit. That finding rendered the informant’s statement admissible for determining the verdict on the charge. However, the basic want of attention to detail by the informant in preparing the preliminary brief meant that the necessary facts that determine the appropriate penalty had not been established. Neither the applicable speed limit nor the extent to which it had been exceeded had been proved. All that the informant’s statement could establish was speeding to some degree.
Counsel for the respondents contended before me that, guilt having been established, the court was then obliged to make findings of fact for the purpose of determining the appropriate penalty. At this point in proceedings, the respondent contended, the court could rely upon the informant’s statement concerning the radar reading. The respondent contended for this consequence on the authority of R v Storey.[17] That case concerned an offender found in possession of a trafficable quantity of methylamphetamine and a pistol. The offender was sentenced on the basis that his possession of a firearm was for the purposes of protecting his drug trafficking business. The Court of Appeal held that it was not open to the judge to find, beyond reasonable doubt, that the offender was in possession of the firearm to protect his drug trafficking business as opposed to having it generally for self-protection. The plurality stated:
We have spoken of “proof”. Ordinarily, much of what is relied on in sentencing is not the subject of evidence given on the plea. Judges have always relied heavily on what is asserted from the bar table and we see no reason why that practice should not continue. We are not to be taken as suggesting any departure from current practices on sentencing hearings. As we have said, judges can, and commonly do, act in such hearings on matters that are not proved by evidence that would be admissible at trial.
[17][1998] 1 VR 359.
That statement was adopted by a majority of the High Court in R v Olbrich.[18] The majority stated:[19]
… it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say “if necessary” because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)[20]
[18](1999) 199 CLR 270.
[19]At 281 [25].
[20]The provisions of s 4(2) of the Evidence Act 2008 (Vic) provide that the Act does not apply to proceedings in relation to sentence, absent a direction to the contrary.
A court proceeding ex parte on the basis of a preliminary brief to hear and determine a summary offence is not the same procedure as a plea hearing in a superior court following a trial or a plea of guilty. The respondent contends that there is no material distinction since the hearing on a preliminary brief proceeds on the established jurisdictional fact that the appellant is aware of the allegation and has failed to attend court to challenge those facts despite a requirement to do so. Bearing in mind the provisions of s 84(2), under the current procedure an offender cannot entertain a reasonable expectation that the charge laid against him will be dismissed for want of proof of a formal or technical requirement. The current procedure permits the court to require the informant to provide additional evidence.
In my view, nothing in the Criminal Procedure Act precludes a court from making sentencing findings on the basis of asserted facts that are not proved by evidence that would be admissible at trial. What the Act requires is that any such asserted fact be contained in the informant’s statement in the preliminary brief or the exhibits to which it refers.
In Olbrich[21] the High Court said:
As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey—that a sentencing judge
“may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities”.
[21]R v Olbrich, 281 [27].
I accept the appellant’s submission that the necessary findings for the purpose of sentencing were matters that were adverse to the interests of the appellant. It was necessary that the informant establish beyond reasonable doubt, whether the vehicle is a heavy vehicle, the speed limit applicable and the extent to which the driver has exceeded that speed limit.
The principle in Olbrich, as it applies to ex parte proceedings by preliminary brief under the Criminal Procedure Act, permits the court to inform itself of allegations of fact other than by strict proof. However, because of the deficiencies in the informant’s statement in the preliminary brief, the proofs that can be drawn from it are limited. It was not open to the primary court to be satisfied beyond reasonable doubt that the appellant had exceeded the speed limit by 45 kph or more.
The respondent contended that if it was not open to the magistrates’ court to convict the appellant on the material in the preliminary brief, then the court had no jurisdiction to proceed to hear and determine the matter on the basis of the preliminary brief. I am satisfied that it was open to the magistrate to convict the appellant on the material in the preliminary brief and, accordingly, the court had jurisdiction. However, having regard to the standard of proof that applied, the primary court could only be satisfied beyond reasonable doubt that the appellant had exceeded the speed limit by less than 35 kph. Although the court might, under s 84(2), have required the informant to provide additional evidence before proceeding to hear and determine the charge, that did not occur.
I am satisfied that the primary court erred in finding the relevant sentencing facts.
Section 272(9) of the Criminal Procedure Act provides that after hearing and determining the appeal, this court may make any order that it thinks appropriate. In my view, the appropriate order is to set aside the order of the Magistrates’ Court at Portland made 15 April 2013 and to order in lieu thereof that the appellant be convicted and fined $375 with $71.80 statutory costs. I will further order that the appellant be suspended from driving in Victoria. A magistrates’ court, and on appeal this court, on convicting a person of an offence against the Road Safety Act 1986 may suspend for such time as it thinks fit or cancel all driver licences and permits held by the offender.[22] That discretionary power is subject to the requirement that for offences of driving a motor vehicle at a speed exceeding 25 kph in excess of the permitted speed or a speed in excess of 130 kph, the court must suspend the offender’s driver licences and permits for periods determined by reference to Schedule 5 of the Act according to the extent to which the speed limit has been exceeded.
[22]See s 28(1)(b) of the Road Safety Act 1986.
On the sentencing findings that were open to the magistrate, the court was not obliged to suspend the appellant’s driver’s licence for a period calculated by reference to Schedule 5 of the Road Safety Act. Subject to any further submission from counsel, in my view it is appropriate in all of the circumstances to suspend the appellant Mr McWhirter’s driver’s licence for a period of 6 months.
Tran’s appeal – relevant facts
The charge sheet and summons stated the charge in these terms:
The accused at Port Melbourne on 25/11/2012, being the driver of a vehicle on a length of road, namely West Gate Freeway, did drive over the speed limit applying to the driver for the length of the road where the driver is driving, to which a speed limit sign of 80 kph applied between Montague Street and Salmon Street. Detected speed 135 kph, alleged speed 133 kph.
The informant’s statement, acknowledged by him as true and correct, was in the following terms:
On Sunday 25/11/2012 at approximately 3.15 am, the informant observed the accused ride a motor cycle with registration JB 737 in a westerly direction along the West Gate Freeway, Port Melbourne at a fast rate of speed. The informant was conducting a laser site between Montague Street and Salmon Street. The West Gate Freeway, Port Melbourne is an 80 kph zone with marked signs, complying with Road Rules – Victoria 2009. There are no signs permitting a higher speed. The West Gate Freeway, Port Melbourne is a 8 lane carriageway for 4 lanes each for east and west bound traffic divided by a centre dividing strip, and with 2 extra west bound lanes which lead towards Todd Road and the Bolte Bridge. The informant was using a prolaser III bearing police no. 189 certified and sealed on 21/9/2012. The informant estimated the accused’s speed to be 130 kph. The informant detected the accused at a speed of 135 kph (alleged 133 kph) at a distance of 228.3 metres. The accused was intercepted by the informant and his identity confirmed by his Victorian driver’s licence. The accused was interviewed by the informant in relation to exceeding the posted speed limit. At the time of the offence, the road was dry, weather was fine, visibility was good and the traffic was light. The West Gate Freeway, Port Melbourne is a highway as defined by the Road Safety Act 1986. The accused’s motor cycle was impounded under the anti-hoon laws. During his interview with the informant, the accused made admissions to exceeding 100 kph. The accused was unable to say how fast he was going. The accused was very co-operative and polite with the informant. He stated that he had not had any advanced driver training and he was on his way home. The accused stated that he was out with friends and it was very cold when he was riding the motor cycle so he was trying to warm up. He gave his reason to be: ‘exceed posted speed limit – it’s cold’.
The exhibit list forming part of the informant’s statement referred to three exhibits:
·a driver’s licence certificate;
·a prior history; and
·a laser certification certificate.
The copy of the preliminary brief did not include any other documents.
The informant’s statement identifies that he (as opposed to ‘police’) was using a prescribed speed detector, a prolaser III, but the appellant contended that there was no evidence before the primary court that the informant had ensured that all elements of the speed display were illuminated when the laser device was connected to a source of electricity. There was also no evidence that the informant activated the device when it was aimed in the direction of a motor vehicle within his field of vision, nor that he then observed the reading displayed on the digital speed display. Otherwise, the same arguments were advanced in this appeal as were advanced in the McWhirter appeal.
Analysis – Tran appeal
What I have stated above[23] applies equally to the Tran appeal. However, the more comprehensive statement provided by the informant in this appeal enabled the primary court to be satisfied that the matters set out in the preliminary brief disclose how the necessary elements of the offence charged, and the matters that determine penalty, would be proved. First, in distinction to the McWhirter appeal, the informant’s statement established the speed limit that applied to the driver for the length of road where the driver was driving, namely 80 kph.
[23]At [29]-[37].
Again, it is clear that the informant intended to prove the speed alleged by the procedure under s 79 of the Road Safety Act. However, the informant failed to state that the prescribed speed detector was set up and used in accordance with reg 45 or, more specifically, that the informant had ensured that all elements of the speed display illuminated when the laser device was connected to a source of electricity. He also failed to describe that the manner in which he activated the device and observed the reading display was in accordance with the prescribed procedure. Accordingly, the preliminary brief does not satisfy the preconditions that permit proof of speed by use of the prescribed speed detector.
For the like reasons as are explained in the McWhirter appeal, the primary court was entitled to find the charge of disobeying the speed limit proved. The remaining issue was whether the court could be satisfied beyond reasonable doubt of the material facts that justified the penalty that was imposed. The reading from the speed detection device did not of itself constitute proof of that speed by statutory force sufficient to enable the court to be satisfied beyond reasonable doubt in the absence of evidence to the contrary about the detected speed. There were a number of other observations deposed to by the informant in his statement that, when taken together with the laser reading, provided an adequate basis for the court below to be satisfied beyond reasonable doubt that the speed of the appellant’s vehicle exceeded 125 kph. The informant observed the motor cycle in good visibility and light traffic travelling at a fast rate of speed. The informant estimated that the vehicle was travelling at 130 kph. The certified and sealed prolaser III speed detecting device detected speed of the appellant’s motor cycle at a distance of 228.3 metres. The appellant admitted that he had been travelling in excess of 100 kph but was unable to say how fast he was going. His admission establishes that he was exceeding the speed limit by at least 20 kph and does not contradict the informant’s observations.
In the circumstances, the primary court was entitled to consider that the matters contained in the preliminary brief disclosed the offence charged. The primary court was entitled to accept in evidence the informant’s statement in the preliminary brief as the basis for determining the charge. Further, the primary court was entitled to accept that the appellant had disobeyed the speed limit and that, for the purposes of penalty, he was driving a vehicle that was not a heavy vehicle which exceeded the speed limit by more than 45 kph. For these reasons, Mr Tran’s appeal will be dismissed.
By way of a parting observation, in each case insufficient attention was paid by the informant to the requirements of a proper statement for a preliminary brief. If it be the case that the speed detection device was used in the manner prescribed by the regulations it is hardly an onerous requirement in the preparation of the statement to say so. The same might be said about Sergeant Dunlop’s statement. If he made the observations attributed to ‘police’ he should have said so.
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