Micah Weeks v Travis Cusack
[2023] VCC 395
•1 March 2023
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CRIMINAL DIVISION
Case No. AP-21-0515
MICAH WEEKS
v
TRAVIS CUSACK
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JUDGE: Her Honour Judge Hassan
WHERE HELD: Melbourne
DATE OF HEARING: 1 April 2022 and 23 November 2022
DATE OF JUDGMENT: 1 March 2023
CASE MAY BE CITED AS: Weeks v Cusack
MEDIUM NEUTRAL CITATION: [2023] VCC 395
JUDGMENT
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| APPEARANCES: | Counsel | Solicitors |
Forthe appellant | Mr W Walsh-Buckley | ZD Legal |
For therespondent | Mr P Pickering | Office of Public Prosecutions |
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
HER HONOUR:
Introduction
1This is a judgment in respect of an appeal against conviction and sentence. The appellant, Mr Micah Weeks, was fined $500 without conviction by the Dandenong Magistrates’ Court on one charge of exceeding a 70 km/h speed limit sign by 45 km/h or more. The appellant’s licence was suspended for a period of 12 months.
Preliminary Brief – Statement Made by Informant Statement of Alleged Facts
2At 8:04pm on Wednesday 2 October 2019, the appellant was observed by
Sergeant Travis Cusack travelling east on Princes Highway, Berwick in a 2019 Chrysler sedan, registration AZL233 between Manuka Road and Beaconsfield Emerald Road at a fast rate of speed.
3Sergeant Cusack observed that the appellant’s vehicle was travelling at an extremely fast rate of speed. The length of Princes Highway on which the appellant was travelling is a 70 km/h speed zone as per the erected and clearly visible speed signs which were facing and applicable to the appellant and which complied with schedule 2 of the Road Safety Road Rules 2017.
4Sergeant Cusack used a STALKER DUAL DSR (MR423S) speed detector, which had been certified and sealed in accordance with the regulations on 15 August 2019, to accurately measure the speed of the accused's motor vehicle.
5The STALKER DUAL DSR speed detector seals had been inspected by Sergeant Cusack at the commencement of his shift on 2 October 2019, and were found to be intact. The speed detector on this occasion had been set up and operated by Sergeant Cusack as per regulation 46 of the Road Safety (General) Regulations 2009. Prior to the speed detector's operation, Sergeant Cusack connected it to a source of electricity and ensured that a reading of 888 was displayed in the digital
target speed display and that the doppler audio signal was set at a level which was clearly audible.
6The STALKER DUAL DSR's antenna was set in the direction of the accused's motor vehicle which was within Sergeant Cusack's field of vision before being activated. The doppler audio signal indicated normal operation over a period of no less than 4 seconds and the digital target speed displayed was observed by Sergeant Cusack as 130 km/h.
7The appellant was intercepted by Sergeant Cusack and he produced a current Victoria driver's licence with a photo of himself, confirming his identity.
8At the time of the offence the road was dry, weather was fine, visibility was good and there were no other cars travelling in direct sight on the Princes Highway in either direction. The entire intercept was recorded on Body Worn Camera. The appellant's vehicle was impounded by police for a period of 30 days at a cost of
$1280.
Statement Made by Accused
It was put to him:
9l/S: ‘You have been detected on a moving mode radar coming down the hill then when you excessively exceeded the speed limit. You were doing 130km/h in a 70 zone. Do you have any reason for that today?’
To which he replied:
10H/S: ‘No.’
11I/S: ‘Why on earth are you doing those kinds of speeds for?’
12H/S: ‘I've got no reason.’
13At the hearing before the Magistrate the informant gave in accordance with his statement on the police preliminary brief of evidence that the appellant was travelling in 70kph zone as per the erected and clearly visible speed signs which
were facing and applicable to the Appellant and which complied with Schedule 2 of the Road Safety Rules 2017. This evidence was not challenged.
14Schedule 2 of the Rules is entitled “Standard and Commonly Used Traffic Signs” and has depictions of these signs including a depiction of a speed limit sign in accordance with rule 21.
Submissions of the Parties Appellant’s Submissions
15The appellant sought to put the respondent to strict proof of its case. The appellant
submitted that the charge ought to be dismissed based on two grounds, ‘submission A’ and ‘submission C’. The appellant abandoned ‘submission B’ contained in the written submissions.
Submission A
16The appellant submitted that there was no proof of the pleaded element of the ‘speed limit sign’ within the meaning of Road Safety Road Rules 2009 (Vic) r 21.1
17The appellant submitted that per Director of Public Prosecutions (Vic) v Juchnowski, ‘The [prosecution] witness must … give evidence of how the speed limit was determined, by reference to the alternatives set out in rules 21–25’.2 The charge pleads that the type of 70 km/h speed limit infringed was a ‘speed limit sign’. The appellant submitted that the informant did not give evidence that the 70 km/h speed limit was constituted by a speed limit sign within the meaning of Road Safety Road Rules 2009 (Vic) rule 21. The appellant submitted that the informant did not produce a photograph of a speed limit sign taken on the date of the offence or give an oral description of a speed limit sign consistent with the diagrams in rule 21.
1 In fact the applicable rules at the time were Road Safety Rules 2017 (Vic)
2 (2008) 185 A Crim R 66, 70 [20] (Kyrou J). See also Ciorra v Cole (2004) 150 A Crim R 189.
18The appellant submitted that if the informant says there was a 70 km/h sign, the respondent must prove beyond reasonable doubt that it was not an advisory sign, some other type of road sign, or a sign within the meaning of Road Safety Road Rules 2009 (Vic) rules 22, 23 or 24, and further, the respondent must prove it could only have been a speed limit sign within the meaning of rule 21.
19The appellant referred me to analogous cases involving ‘defects’ in descriptions of signs or devices resulting in traffic charges being dismissed, including Passey v Burns (parking signs);3 Impagnatiello v Campbell (a breath analysing instrument)4 and Sirajuddin v Ziino (a preliminary breath test device).5
20The appellant’s submission was that the specific element pleaded, a ‘speed limit sign’, has not been proved beyond reasonable doubt and the charge must be dismissed.
Submission C
21The appellant submitted that the excess speed alleged cannot be proven beyond reasonable doubt.
22Road Safety Act 1986 (Vic) s 79(1) states,
If in any criminal proceedings the speed at which a motor vehicle or trailer travelled on any occasion is relevant, evidence of the speed of the motor vehicle or trailer as indicated or determined on that occasion by a prescribed road safety camera or 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 or trailer on that occasion.
23The appellant submitted that the Road Safety Act 1986 (Vic) s 83 certificate proving the testing and sealing of the prescribed speed detector, the Stalker Dual DSR, was dated 15 August 2019 and was made pursuant to Road Safety (General) Regulations 2009 (Vic) regulation 52 and schedule 3. However, the Road Safety (General) Regulations 2019 (Vic) became operational on 27 September 2019 and
3 [2000] VSC 492.
4 (2003) 6 VR 416.
5 (2005) 14 VR 689.
were applicable on the date of the alleged offending, 2 October 2019. As such, absent transitional provisions saving s 83 certificates made prior to the commencement of the 2019 regulations, the s 83 certificate must be compliant with the 2019 regulations.
24The appellant submitted that the s 83 certificate does not comply with the Road Safety (General) Regulations 2019. The appellant submitted that the s 83 certificate is rather in accordance with the Road Safety (General) Regulations of 2009 and refers to the relevant regulations in the 2009 Regulations (regulations 52 and 65) and not the relevant regulation (regulation 51) in the 2019 Regulations.
25The appellant submitted that a strict approach was taken to prescribed forms containing mandated prescribed particulars in the case of Tsolacis v McKinnon, in which a s 84 certificate was inadmissible to prove a vehicle was unregistered because the provision under which it was made, sub-s (1), was missing from the certificate.6
26The appellant submitted that while the 2009 regulations contained saving and transitional provisions relating to s 83 certificates,7 there are no equivalent provisions in the 2019 regulations. The appellant submitted that in the absence of any such saving provisions, the s 83 certificate does not comply with the 2019 regulations, so the prosecution cannot rely on this evidence as proof of the speed of the vehicle under s 79 of the Road Safety Act 1986 (Vic). The appellant therefore submitted that the element of excess speed cannot be proved beyond reasonable doubt, and the charge ought be dismissed.
Respondent’s Submissions
27Regarding appellant’s submission A, the respondent submitted that the informant’s evidence, which was unchallenged and in accordance with his statement in the preliminary brief of evidence, was that the relevant length of road was a 70 km/h
6 (2012) 38 VR 260, 268–80 [32]–[72] (Cavanough J). See also Police v Conway (2006) 95 SASR 83.
7 Road Safety (General) Regulations 2009 (Vic) pt 12.
speed zone as per the erected and clearly visible speed signs which were facing and applicable to the appellant and complied with schedule 2 of the Road Safety Rules 2017.
28The respondent submitted that in the case of Director of Public Prosecutions (Vic) v Juchnowski8 does not require the prosecution to lead evidence of the speed limit by reference to Road Safety Road Rules 2009 (Vic) rules 21–25. The respondent submitted that the paragraph cited by the appellant is not the ratio of the case but rather a discussion of the prosecution’s submissions in that case and the prosecution’s interpretation of the case of Ciorra v Cole.9
29Further, the respondent submitted that the decision of Redlich J in Ciorra v Cole does not require the informant to give evidence by reference to Road Safety Road Rules 2009 (Vic) rules 21–25.10 Rather, one of the essential factual elements is the relevant speed limit, and such evidence had been given by the informant.
30Regarding appellant’s submission C, the respondent submitted that while there are no saving or transitional provisions in the 2019 regulations, this does not render the s 83 certificate inadmissible. The respondent relied upon the case of Sutton v Bradshaw, which involved the admissibility of a breath analysis certificate in the form prescribed by the Motor Car Act 1958 (Vic), which had then been repealed by the operation of the Road Safety Act 1986 (Vic).11 The Full Court, applying the common law rules of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic) s 14(2),12 held that the evidentiary provisions of the previous Act were by necessary implication saved in the new Act, such that the prosecution could rely on the breath analysis certificate.13 The respondent submitted that the same reasoning applies here to allow the s 83 certificate to be tendered.
8 (2008) 185 A Crim R 66.
9 (2004) 150 A Crim R 189.
10 Ibid.
11 [1988] VR 920.
12 The respondent noted that the equivalent section relating to subordinate instruments is s 28(2).
13 [1988] VR 920.
31The respondent submitted that neither in the case of Tsolacis v McKinnon14 nor Police v Conway15 is relevant, as those cases concerned defective certificates where particulars were absent, rather than transitional or saving provisions.
Appellant’s Further Submissions
Submission A
32In response to the respondent’s submissions, the appellant submitted that two Supreme Court judges sitting singly both held that the prosecution must prove the basis for a given speed limit: Kyrou J in Director of Public Prosecutions (Vic) v Juchnowski16 and Redlich J in Ciorra v Cole: ‘The basis upon which the speed limit is to be determined need not be set out in the charge. Though it be a fact necessary to be proved by the prosecution …’.17 Further, in Director of Public Prosecutions (Vic) v Juchnowski, the Crown conceded that Redlich J’s statement in Ciorra v Cole was ‘an accurate statement of the general principle that applies to the proof of speeding offences’.18
33The appellant also submitted that the lack of a photograph, moving image, sketch or oral description of the sign, and the lack of an express or implied statement from the informant that it was a speed limit sign within the meaning of Road Safety Road Rules 2009 (Vic) rule 21, means the specific element pleaded, being a ‘speed limit sign’, has not been proved beyond reasonable doubt and the charge must be dismissed.
Submission C
34The appellant submitted that while the decision in Sutton v Bradshaw19 is not strictly binding in this case, as it deals with different legislation, it is ‘powerfully persuasive in favour of the respondent’s position’.
14 (2012) 38 VR 260.
15 (2006) 95 SASR 83.
16 [2008] VSC 181; (2008) MVR 50.210 at par [20]
17 150 A Crim R 189, 209 [80], cited in DPP (Vic) v Juchnowski.(2008) 185 A Crim R 66.
18 (2008) 185 A Crim R 66, 70 [20].
35However, the appellant maintained, that the s 83 certificate is inadmissible. The appellant submitted that admissibility requires compliance with the regulations operative at the time of the alleged commission of the offence. Even if the s 83 certificate is ‘saved’ through the application of Sutton v Bradshaw20 and s 29(2)(g) of the Interpretation of Legislation Act 1984 (Vic), the appellant submits that the more recent case of Director of Public Prosecutions (Vic) v Korybutiak enunciates the test for validity of an instrument, being ‘a reasonable reading of the whole document’.21 The appellant submitted that the s 83 certificate is missing the obligatory reference to ‘Regulations 52, 65’ and to the Road Safety (General) Regulations 2019 (Vic), so cannot be admitted. The appellant reiterated that the small omission of a sub-s in a s 84 certificate in the case of Tsolacis v McKinnon was enough to render the certificate inadmissible.22
36The appellant maintained that without the s 83 certificate and the application of s 79, the alleged excess speed cannot be proved beyond reasonable doubt.
Analysis and Conclusions Submission A.
37The informant gave evidence how the applicable speed limit was determined by reference to “the erected and clearly visible speed signs” which complied with schedule 2 of the Rules.
38My conclusions on this evidence are as follows.
39First, this case is clearly distinguishable from other cases relied upon by the appellant where there was simply no evidence led of an element of the offence.23
40Secondly, this was also not a case where evidence had to be led in a prescribed manner. There was no submission made to me that the informant could not give
20 Ibid.
21 [2004] VSCA 29, [11].
22 (2012) 38 VR 260.
23 Impagnatiello, Passey and Sirajuddin
oral evidence on this topic, the appellant’s submission was the lack of an explicit reference to, or statement of the applicable rule as a deficiency in the evidence.
41Thirdly, the informant’s evidence was that the relevant sign was a “speed sign”.
42Fourthly, the informant gave evidence of the speed sign’s compliance with schedule 2 of the Rules. In that schedule a rule 21 speed sign is depicted.
43The appellant submitted that there were lots of signs depicted in the schedule, which is true, however in the schedule the depiction of the speed limit signs are clearly and easily referrable to rule 21.
44My conclusion is therefore that informant gave clear and unambiguous evidence of how the applicable speed limit was established and moreover, his evidence was clearly referrable to the schedule and to rule 21.
45I am satisfied that the informant’s evidence constituted proof beyond reasonable doubt of the relevant speed limit and how that speed limit was determined.
46For completeness, I should add that I accept the respondent’s submission that neither the case of Ciorra nor Juchnowski are authority for the proposition that there is a requirement on the prosecution that the evidence must explicitly be referrable to one of rules 21- 25, in order to prove how the applicable speed limit is determined.
47As the respondent submits there is but a reference in Juchnowski to a submission made by the prosecutor in that case to this effect, however neither Juchnowski nor Ciorra considers this issue and accordingly neither case is authority for the proposition contended for by the appellant. Both cases are authority for the broad and uncontroversial proposition that the prosecution bears the onus and burden to prove the speed limit and the basis upon which it is determined as essential elements of its case.
48For the above reasons I reject submission A on behalf of the Appellant.
Submission C.
49Turning to submission C.
50This submission concerned the admissibility of the s 83 certificate which certifies the testing and sealing, and the prescribed use of a road safety camera or device, and which is proof of speed in the absence of evidence to the contrary.
51It is agreed between the parties that the certificate was in compliance with the expired 2009 regulations, and not the applicable 2019 regulations, and there were no transitional provisions in place.
52The respondent relied upon the case of Sutton v Bradshaw Reiffel v Fox24, which in further written submissions the appellant acknowledged is “powerfully persuasive in favour of the respondent”.
53I agree. The situation here is, in my view, entirely analogous to that case, in which in order to give effect to a clear legislative intent to provide an effective means to facilitate proof, the Court found that certification under expired regulations, which were closely similar to the operative regulations, and in the absence of transitional provisions, was saved by necessary implication pursuant to the common law rule of statutory interpretation and statute. The relevant statutory provision then being s 14 (2) of the Interpretation of Legislation Act 1984.
54Justice Kaye said in that case of the common law rule of saving25, “ No doubt this rule is based upon the principle that the court will construe a statute so as to give effect to the intention of the legislature, where that intention is clear or is derived by necessary implication. Furthermore, no reason comes to mind for confining the operation of the principle to procedures for enforcing rights repealed or substituted by subsequent legislation. It would seem equally applicable to evidentiary or
24 [1988] VR 920
25 Ibid p.925 at [28] – [35]
procedural enactments enabling proof of both breach of obligation as well as enforcement of a right repealed”.
55In the present case the s 83 certificate, made in compliance with the 2009 regulations and not the 2019 regulations, is worded differently but is identical in its operation.
56I am therefore satisfied that in the present case in accordance with the authority of Sutton v Bradshaw Reiffel v Fox26 that the s 83 certificate is admissible, its continued operation, notwithstanding the lack of transitional provisions, saved by necessary implication pursuant to the common law and by s 28 (2) (g) of the Interpretation of Legislation Act 1984.
57The further cases relied upon by the appellant, Korybutiak and Tsolacis, concern defective particulars and are not concerned with the issue of the question of
]admissibility in the absence of transitionals. These cases have therefore not been of assistance to me in the resolution of this ground of appeal which I find has not been made out.
58Accordingly, the appeal is dismissed.
59I intend to sentence Mr Weeks in the same terms as the Magistrates and make the same orders.
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