Mungar v O'Neill
[2018] WASC 346
•16 NOVEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MUNGAR -v- O'NEILL [2018] WASC 346
CORAM: DERRICK J
HEARD: 12 NOVEMBER 2018
DELIVERED : 16 NOVEMBER 2018
FILE NO/S: SJA 1092 of 2018
BETWEEN: JACQUES PATRICK MUNGAR
Appellant
AND
RICHARD O'NEILL
Respondent
ON APPEAL FROM:
For File No: SJA 1092 of 2018
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G LAWRENCE
File Number : PE 12500 of 2018
Catchwords:
Criminal law - Appeal against conviction - Road Traffic Code 2000 (WA) - Whether magistrate erred in finding that appellant was driving within a 'speed zone' - Whether judicial notice can be taken of the existence and location of a specific intersection
Legislation:
Criminal Appeals Act 2004 (WA)
Evidence Act 1906 (WA)
Road Traffic Code 2000 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms R C Panetta |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Avins v Garvey [2001] WASCA 415; (2001) 35 MVR 277
Culverwell v Ginbey [2016] WASC 3
Hankinson v Brookview Holdings Pty Ltd [2004] WASCA 279
Pike v Becker [2012] WASC 397; (2012) 62 MVR 109
Pope v Ewendt (1977) 17 SASR 45
Prentice v Cummins (No 5) [2002] FCA 1503; (2002) 124 FCR 67
Samuels v The State of Western Australia [2005] WASCA 193
DERRICK J:
Introduction
On 12 March 2018 the appellant was charged in the Magistrates Court with one offence of contravening reg 11(3) of the Road Traffic Code 2000 (WA) (the RTC). The charge was in the following terms:
On 26 December 2017 at East Victoria Park [the appellant] drove a vehicle on a road, within a speed zone, where the numerals on the restricted sign at the beginning of the speed zone indicated a speed of 40 kilometres per hour, drove said vehicle at a speed in excess of that shown on the restricted sign, namely 51 kilometres per hour.
On 7 June 2018 the appellant was convicted after trial of the charged offence. He was fined $200 and ordered to pay costs.[1]
[1] ts 13 ‑ 14.
The appellant applies for leave to appeal against his conviction.[2] Although the appellant's appeal notice contains two grounds of appeal, the grounds of appeal in substance contain the same complaint, namely that the magistrate made an error of fact and law in finding that the appellant was driving 'within a speed zone'.
[2] The application is made under div 2 pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).
Leave to appeal
The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[3] A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[4] If leave to appeal is refused on each ground the appeal is taken to be dismissed.[5]
[3] CAA, s 9(2).
[4] Samuels v The State of Western Australia [2005] WASCA 193 [56].
[5] CAA, s 9(3).
The appellant's trial
The appellant's trial took place before his Honour Magistrate Lawrence.
At the beginning of the trial the appellant made an admission pursuant to s 32 of the Evidence Act 1906 (WA) in the following terms:[6]
[A]t 1.30 pm on Tuesday, 26 December 2017, I drove a Jaguar sedan registration number 1BGR 653 in a westerly direction on Albany Highway near Patricia Street, East Victoria Park, travelling at a speed of 51 kilometres per hour.
[6] ts 2.
Therefore the issue at trial, as was stated by the magistrate, was whether the appellant was driving 'in a speed zone where the speed was 40 km per hour'.[7]
[7] ts 3.
The prosecution called one witness, Senior Constable Craig Green. Senior Constable Green's evidence was in substance as follows.
At the start of the East Victoria Park area, at the point where Shepperton Road breaks off from the west bound lanes of Albany Highway, the speed limit on Albany Highway is 40 km per hour.[8] It is a 'posted 40 km an hour zone'.[9] This is indicated by clearly visible 40 km per hour signs that are erected at numerous points along Albany Highway as well as by 'large 40 signs' on the road surface.[10]
[8] ts 4.
[9] ts 4.
[10] ts 4.
The first set of erected 40 km per hour signs are situated at the start of the East Victoria Park area on Albany Highway near the Shepperton Road turn off and near the front of a McDonald's restaurant that is on Albany Highway.[11] There are two signs, one on the left‑hand side of the road and the other on the median strip.[12] On the road surface between the two erected signs '40' is marked.[13]
[11] ts 4.
[12] ts 4.
[13] ts 4.
Approximately 200 m past the first set of signs (that is, 200 m further west of the first set of signs) is a set of traffic lights.[14] Situated further along Albany Highway west of the traffic lights is another erected 40 km per hour sign.[15] This sign is referred to as a 'repeater sign'.[16] A short distance to the east of the repeater sign (that is, as a vehicle travelling west approaches the repeater sign) '40' is marked on the road surface.[17]
[14] ts 4.
[15] ts 5.
[16] ts 5.
[17] ts 5.
He was situated at the intersection of Albany Highway and Patricia Street which is situated 200 m, maybe a little more, further west of the repeater sign.[18]
[18] ts 5 ‑ 6.
At the time that he obtained the appellant's speed, the appellant's vehicle was 150.2 m east of where he was standing (approaching him in a westerly direction). The appellant was therefore approximately 50 m past the repeater sign.[19]
[19] ts 6.
The '40' signs marked on the road surface are marked every 50 m from the first two 40 km per hour signs up until where he was positioned.[20]
[20] ts 5.
Senior Constable Green gave his above summarised evidence by reference to three tendered photographs.[21] I have had access to the photographs.
[21] ts 7, exhibit 1.
All three photographs have been taken looking west along Albany Highway. The first of the photographs shows the first two 40 km per hour signs referred to by Senior Constable Green as well as the '40' marked on the road surface between the two signs. The second photograph shows '40' marked on the road surface in the foreground with the repeater sign a little further west of the '40' on the left‑hand side of the road. The third photograph, which is taken from a point between the '40' marked on the road surface and the repeater sign, gives a closer up view of the repeater sign on the left‑hand side of the road. The repeater sign is clearly visible. It is to be noted that no further speed limit signs beyond the repeater sign are visible in the third photograph.
The appellant did not cross‑examine Senior Constable Green.
At the conclusion of Senior Constable Green's evidence the prosecution closed its case.
After the prosecution closed its case the appellant made a submission of no case to answer. In the course of making his submission the appellant stated that he admitted that he drove his vehicle near Patricia Street in excess of 51 km per hour.[22] However, the appellant contended that the prosecution had not adduced any evidence of where the alleged 40 km per hour speed zone ended and had therefore failed to prove an essential element of the charged offence, namely that he was driving within a 'speed zone' as defined in reg 3(1) of the RTC.[23]
[22] ts 8.
[23] ts 8.
The magistrate rejected the appellant's submission of no case to answer. His Honour stated his reasons for rejecting the submission in the following terms:[24]
… Effectively, the position of the accused is that in the absence of evidence of where the speed zone ends, [the prosecution's] case must fail because, in other words, they need to prove both bookends of the zone.
I don't accept that application or that submission from the accused … The police officer in this matter has given evidence on oath that he was monitoring a 40 kilometre per hour speed zone. His evidence is that he placed himself within that speed zone to monitor traffic. The direction of travel of the accused was westerly and signs marked 40 kilometres per hour either on signs or on the road were evident from the photos and from his evidence. Clearly though, it's a speed zone and that's where [the appellant] places a lot of weight on his interpretation of the legislation.
Clearly, that particular speed zone is likely to end at some point, but the evidence at present places the accused's vehicle in a zone clearly marked with 40 kilometre per hour signs and the evidence is that the officer has placed himself within that zone. I find that it is immaterial where the zone ends since the evidence thus far is that the officer had placed himself there and activated his equipment from there within the zone.
[24] ts 10 ‑ 11.
Having delivered his ruling on the appellant's no case to answer submission the magistrate asked the appellant if he was going to give evidence. The appellant elected not to give evidence.[25]
[25] ts 11.
The magistrate then heard closing submissions. The appellant in his closing submissions in substance repeated the argument that he had advanced in support of his submission of no case to answer. In the course of making his submissions the appellant asserted that the only evidence that was before the court that he was within the speed zone was the evidence of Senior Constable Green that he had placed himself in the speed zone.[26] The appellant further asserted that Senior Constable Green did not give evidence of any sign that he saw that was further west of his position which would prove that the appellant was within the speed zone.[27]
[26] ts 12.
[27] ts 12.
The magistrate did not accept the submissions made by the appellant and convicted him of the charged offence. His Honour expressed his reasons in the following terms:[28]
Despite the outcome of the no case submission where I have as a matter of law - basically as a matter of law - said that the prosecution does not in the particular circumstances of this case have to prove when the zone ended, [the appellant] has pressed the point, as he's entitled to, in his closing submissions. The prosecution has called one witness. …
Clearly, [the witness] was in the area that day with a task. The task was to monitor a 40 kilometre speed zone. His evidence wasn't contested, that is, there wasn't cross‑examination of him. I have accepted his evidence. I have accepted that he, an officer with a task, went to that area, took up a stationary position, monitored that position, activated his equipment and at a point where [the appellant's] car was facing - had faced at least two 40 kilometre signs and marks on the road that in the face of those signs he drove at 51 kilometres per hour.
So long as there was a 40 kilometre zone there, and I find that it was a 40 kilometre zone, and I find that there were no other signs between [the witness] and the sign that he has pointed to in photo 3, there were no other signs, he stood where he stood because I find it's implicit that there were no other signs, as well as being supported by the photos. So clearly, the prosecution have proved their case beyond a reasonable doubt on the effectively uncontested evidence of the officer.
So this was a 40 zone and it was being monitored and [the appellant] drove his car, as he said in his section 32 admissions, along that stretch of road where I have found there was clearly, on the evidence of the officer, a 40 zone in place.
[28] ts 13.
Regulation 11 of the RTC
It is necessary, before turning to address the arguments advanced by the parties on the appeal, to refer in more detail to the terms of reg 11 of the RTC and the defined meanings of the terms used therein.
Regulation 11 is in the following terms:
(1)A person shall not drive a vehicle at a speed exceeding the default speed limit for that vehicle.
Points and modified penalty: see regulation 17.
(2)A person shall not drive a vehicle in a built‑up area, at a speed exceeding 50 km/h, except within a speed zone in which a higher speed is permitted.
Points and modified penalty: see regulation 17.
(3)A person shall not drive a vehicle in a speed zone, at a speed exceeding the speed limit applicable to the zone.
Points and modified penalty: see regulation 17.
The term 'default speed limit' is defined in reg 3(1) as follows:
default speed limit, for a vehicle -
(a)that is limited to a particular speed limit by these regulations that is slower than 110 km/h, means that slower speed limit; or
(b)that is not otherwise limited to a particular speed limit by these regulations, means a speed limit of 110 km/h.
The term 'built‑up area' is defined in reg 3(1) as follows:
built-up area means the territory contiguous to and including any road -
(a)on which there is provision for street lighting at intervals of not over 100 m for a distance of at least 500 m or, if the road is shorter than 500 m, for the whole road; or
(b)which is built up with structures devoted to business, industry or dwelling houses at intervals of less than 100 m for a distance of 500 m or more;
The term 'speed limit' as applicable to a 'speed zone', is relevantly defined in reg 3(1) to mean 'the speed indicated by the numerals on the speed limit sign at the beginning of the zone'.
The term 'speed zone' is defined in reg 3(1) in the following terms:
[A] length of carriageway defined at its beginning by means of a speed limit sign, and at its end by means of -
(a)a de‑restriction sign or an 'end speed limit' sign; or
(b)another speed limit sign; or
(c)an 'area speed limit' sign, a 'school zone' sign or a 'heavy vehicle speed zone' sign; or
(d)a T‑intersection where that carriageway ends.
Speed limit signs
Speed limit sign
(Standard sign)(circle in red)
Speed limit sign
(Variable illuminated message sign)(circle illuminated red)
Other signs
End speed limit sign De‑restriction sign
The term 'carriageway' is defined in reg 3(1) to mean:
[A] portion of a road that is improved, designed or ordinarily used for vehicular traffic, and includes the shoulders, and areas, including embayments, at the side or centre of the carriageway, used for the stopping or parking of vehicles; and, where a road has 2 or more of those portions divided by a median strip, the expression means each of those portions, separately.
The term 'speed limit sign' is defined in reg 3(1) as follows:
[A] sign, other than an 'area speed limit' sign, a 'school zone' sign or a 'heavy vehicle speed zone' sign, that is substantially rectangular in shape and -
(a)is displayed or erected on or near a carriageway; and
(b)consists of black numerals set within a red circle upon a white background.
Speed limit sign
(Standard sign)
(circle in red)
The terms 'de‑restriction sign' and 'heavy vehicle speed zone sign' are defined in reg 3(1).
The terms 'end speed limit sign', 'area speed limit sign' and 'school zone sign' are not separately defined in the RTC. However, pictorial representations of an 'end speed limit sign' and an 'area speed limit sign' appear as part of the definition of 'speed limited area' contained in reg 3(1), and a pictorial representation of a 'school zone sign' appears as part of the definition of 'school zone' contained in reg 3(1).
The term 'T‑intersection' is defined in reg 3(1) in the following terms:
[A]n intersection where 2 carriageways meet (whether or not at right angles) and one of the carriageways ends.
The term 'intersection' is defined in reg 3(1) to mean:
(a)the area where 2 or more carriageways meet; or
(b)the area within which vehicles, travelling by, on or from different carriageways, may come into conflict.
The parties' arguments on the appeal
The appellant's argument
The appellant accepts that the evidence adduced by the prosecution at his trial established the following:
1.The portion of the road on which he was driving, Albany Highway, was a carriageway as defined in reg 3(1) of the RTC;
2.The 40 km per hour signs erected or displayed on or near the carriageway were 'speed limit signs'; and
3.There were regular markings on the surface of the carriageway with the numerals '40'.
The appellant also accepts that the '40' markings on the road surface were 'road markings' as defined in reg 3(1) of the RTC.
The appellant's argument in support of his grounds of appeal is, in essence, the argument that he advanced before the magistrate. The appellant submits that the prosecution failed to prove an essential element of the offence with which he was charged, namely that he was driving in a 'speed zone'. He submits that the prosecution failed to prove this element of the charged offence because it did not adduce evidence capable of proving that the portion of Albany Highway on which he was driving (that is, the portion of the carriageway), which began with the two 40 km per hour speed limit signs referred to by Senior Constable Green in his evidence and shown in the first of the photographs, ended by any one or more of the means specified in par (a) ‑ (d) of the definition of 'speed zone'. He submits that in the absence of such evidence it cannot simply be assumed from the fact of the existence of the first two 40 km per hour speed limit signs that once he drove past these signs he was within a 'speed zone'. He submits that this assumption cannot be made because it is possible that the 40 km per hour speed limit to which he was subject at the time that he was detected driving at a speed of 51 km per hour came to an end by a means other than one of the means specified in par (a) ‑ (d) of the definition of 'speed zone'. In support of this proposition he refers to the possibility of the portion of the length of carriageway on which he was driving for which the speed limit is 40 km per hour coming to an end not as a result of the erection of one of the types of signs specified in par (a) ‑ (c) of the definition of 'speed zone' and not as a result of a T‑intersection as specified in par (d) of the definition of 'speed zone', but rather as a result of the carriageway meeting or merging with another carriageway (other than by way of a T‑intersection) that is governed by a different speed limit as a result of the other carriageway being in a 'built‑up area' or in a new 'speed zone' or in a 'speed limited area' or in a 'school zone'. He purports to give as examples of such a situation the situations depicted in a number of the pictorial representations that form part of reg 92 of the RTC (entering and leaving roundabouts) and reg 119 of the RTC (prohibition from driving on traffic islands). In short, the appellant submits that the existence of a speed limit sign does not necessarily indicate the beginning of a 'speed zone'.
The respondent's argument
The respondent accepts that Senior Constable Green did not expressly state in his evidence that the length of carriageway on which the appellant was driving, which began at the point where the two 40 km per hour speed limit signs were located, ended by one of the means specified in par (a) ‑ (d) of the definition of 'speed zone' in reg 3(1). The respondent also accepts that the prosecution did not adduce any other form of direct evidence of the means by which the alleged speed zone came to an end. However, the respondent submits that the evidence given by Senior Constable Green was nonetheless sufficient to permit the magistrate to conclude, as his Honour would appear to have done, that the 40 km per hour speed limit did come to an end by one of the means specified in par (a) ‑ (d) of the definition of 'speed zone'. More specifically, it is argued that Senior Constable Green's evidence that the relevant portion of carriageway is a 'posted 40 kilometre an hour zone' (emphasis added) was, when viewed in the context of the remainder of his evidence, clearly a reference to a 'speed zone' as defined in reg 11(3), that is, a zone that came to an end by one of the means specified in par (a) ‑ (d) of the definition. As the respondent puts the point, 'in order for something to constitute a posted 40 km/h speed zone there must be a relevant sign or T‑intersection at its end'.[29] The respondent seeks to derive support for this aspect of his argument from the assumption that a judicial officer knows all the domestic law and that as a consequence the law is not a matter for proof or disproof.[30]
[29] Respondent's Outline of Submissions dated 26 October 2018, par 49(c).
[30] Prentice v Cummins (No 5) [2002] FCA 1503; (2002) 124 FCR 67 [77].
The respondent submits that another reason why the evidence given by Senior Constable Green was sufficient to permit the magistrate to conclude that the 40 km per hour speed limit did come to an end by one of the means specified in par (a) ‑ (d) of the definition of 'speed zone' is that there are no situations under the RTC in which a length of carriageway defined at its beginning by a standard speed limit sign can end by a means other than one of the means specified in par (a) ‑ (d) of the definition of 'speed zone', and that consequently if a driver drives past a speed limit sign they must inevitably be in a 'speed zone'. The respondent does not accept that the examples put forward by the appellant reveal situations in which the speed limit for a length of carriageway as designated by a speed limit sign might be changed, that is, brought to an end, by a means other than one of the means specified in par (a) ‑ (d) of the definition of 'speed zone'.
Finally, the respondent submits that if contrary to his primary submission the evidence adduced by the prosecution through Senior Constable Green was not sufficient to permit the magistrate to conclude that the relevant length of carriageway was a 'speed zone' (that is, did come to an end by one of the means specified in par (a) ‑ (d) of the relevant definition), no substantial miscarriage of justice has occurred because the magistrate could have taken judicial notice of the fact that the relevant portion of the carriageway did come to an end, if not earlier by one of the means specified in par (a) ‑ (c) of the definition of 'speed zone', by means of a T‑intersection comprised of the intersection of Albany Highway and Shepperton Road in Victoria Park at a location just east of the Causeway in the suburb of Burswood.
Analysis and decision
The sufficiency of evidence and statutory construction arguments
The elements of the offence created by reg 11(3) of the RTC, each of which the prosecution must prove beyond a reasonable doubt in order to prove the guilt of a person charged with the offence, are as follows:
1.The accused was the offender, that is, was the person who did the things which the prosecution asserts constituted the offence;
2.The accused was driving a vehicle;
3.The accused was driving a vehicle in a speed zone; and
4.The accused, while driving the vehicle in a speed zone, was driving at a speed limit exceeding the speed limit applicable to the zone.
Therefore, for the prosecution to prove a charge laid under reg 11(3) it must prove that the person was driving a vehicle 'in a speed zone'.
I do not accept the respondent's argument that Senior Constable Green's evidence that the relevant portion of carriageway is a 'posted 40 kilometre an hour zone' can, even when viewed in the context of the balance of his evidence, properly be construed as a reference to a 'speed zone' as defined in reg 11(3). The wording used by Senior Constable Green goes no further, in my view, than establishing that the speed limit for the section of Albany Highway on which the appellant was driving was 40 km per hour. Further, I do not consider that the assumption that a judicial officer knows all domestic law is of any relevance in this context. The assumption that a judicial officer knows all domestic law, which in the present circumstances means the elements of a charged offence that must be proved by the prosecution to establish guilt, says nothing about whether the evidence adduced by the prosecution is sufficient to prove the elements.
Despite my rejection of what may be referred to as the first limb of the respondent's argument, I am persuaded that the evidence adduced by the prosecution at the appellant's trial was sufficient to prove that the appellant was, at the relevant time, driving in a 'speed zone'. My reasons for coming to this conclusion are as follows.
The RTC establishes a regime of speed restrictions for Western Australian roads.
Under the RTC Western Australian roads are subject to a speed related zone or, in the absence of a speed related zone, to a default speed limit. Thus, in a 'built‑up' area that is not subject to a speed related zone the default speed limit of 50 km per hour applies.[31] For rural or undeveloped areas that are not subject to a speed related zone, the default speed limit is 110 km per hour for vehicles that are not by the RTC limited to a particular speed that is slower than 110 km per hour.[32]
[31] RTC, reg 11(2).
[32] RTC, regs 3(1), 11(1) and 13.
The six speed related zones that are established by the RTC are as follows:
1.Speed zones;
2.Shared zones;
3.Speed limited areas;
4.School zones;
5.Freeway speed zones; and
6.Heavy vehicle speed zones.
All of these types of zones are in effect defined by regulations in the RTC. Further, a reading of these definitions reveals that the beginning of all of these types of zones are marked, or in other words defined, by a particular type of sign and are ended by a particular type of sign or by some other specified means, such as a T‑intersection. More specifically:
1.the beginning of a shared zone is marked by a 'shared zone' sign;[33]
2.the beginning of a 'speed limited area' is marked by an 'area speed limit' sign;[34]
3.the beginning of a 'school zone' is marked by a 'school zone' sign;[35]
4.the beginning of a freeway speed zone is marked by a sign designating the road as a freeway;[36] and
5.the beginning of a 'heavy vehicle speed zone' is marked by a 'heavy vehicle speed zone' sign.[37]
[33] RTC, reg 3(1).
[34] RTC, reg 3.
[35] RTC, reg 3.
[36] RTC, reg 3 and reg 12.
[37] RTC, reg 3.
Accordingly, the only type of speed related zone provided for in the RTC the beginning of which is marked by a 'speed limit sign' is a 'speed zone'. The regime of speed restrictions set up by the RTC does not envisage a situation in which a 'speed limit sign' is erected for a purpose other than to establish the beginning of speed zone and/or to end one speed zone and begin another. The RTC does not disclose any other purpose for the erection of a speed limit sign.
It follows, in my opinion, that a length of carriageway the beginning of which is marked by a 'speed limit sign' must be a 'speed zone', that is, a length of carriageway which is defined at its beginning by means of a speed limit sign and at its end by one of the means specified in par (a) to (d) of the definition of 'speed zone'. It cannot, bearing in mind how other speed related zones are defined in the RTC, be anything other than a speed zone. Consequently, the existence of a speed limit sign on a carriageway is, in my opinion, by itself sufficient to establish a speed zone, that is, a zone that is brought to an end by one of the means specified in par (a) ‑ (d) of the definition of 'speed zone'.
The correctness of the above stated conclusion can be demonstrated by considering the potential effect of the scenario put forward by the appellant, namely that a length of carriageway defined at its beginning by a speed limit sign may under the RTC end by a means other than one of the means specified in par (a) ‑ (d) of the definition of 'speed zone'. If this were the case, then despite the existence of the speed limit sign at the beginning of the length of carriageway, the default speed limit would apply because there would be no speed zone in operation. This would create confusion for drivers as they would encounter the speed limit sign at the beginning of the length of the carriageway and assume that it established a certain speed limit when in fact, in the absence of a speed zone, the default speed limit would apply from the point of the speed limit sign.
In light of my above stated conclusion that a length of carriageway the beginning of which is marked by a speed limit sign must be a 'speed zone' as defined in reg 3(1), it is not strictly necessary for me to deal with the appellant's purported examples of situations in which a length of carriageway defined at its beginning by a speed limit sign may come to an end other than by one of the means specified in par (a) ‑ (d) of the definition of 'speed zone'. Nonetheless, I will do so.
The appellant's examples
The appellant's purported examples of situations in which a length of carriageway defined at its beginning by a speed limit sign may come to an end other than by one of the means specified in par (a) ‑ (d) of the definition of 'speed zone' are not in fact examples of such a situation. This statement requires some elaboration.
With respect to reg 119 of the RTC, the appellant refers to the following two pictorial representations which appear as part of reg 119(5):
Example 1
Example 2
The situations depicted in the two pictorial representations do not provide examples of a situation in which one length of carriageway comes to an end by a means other than one of the means specified in par (a) ‑ (d) of the definition of 'speed zone'. They do not do so because in both of the depicted situations the relevant length of carriageway, that is, the length of carriageway which merges with the continuing carriageway, is brought to an end by way of a T‑intersection. The relevant length of carriageway meets with the continuing carriageway, albeit not at a right angle, merges with and is absorbed into the continuing carriageway, and therefore ends.[38] Therefore even if it is assumed that the relevant carriageway is not, prior to the depicted point of merger, brought to an end by one of the signs specified in par (a) ‑ (c) of the definition of 'speed zone', it is brought to an end by a T‑intersection as contemplated by par (d) of the definition.
[38] See the above cited definitions of 'carriageway', 'T-intersection' and 'intersection' as well as the definition of 'terminating road' contained in RTC, reg 3.
In relation to reg 92, the appellant refers to the pictorial representation of a roundabout which appears as part of reg 92(2) and the two pictorial representations of a roundabout which appear as part of reg 92(7). The pictorial representation that appears as part of reg 92(2) is as follows:
Example 1
Leaving a roundabout less than halfway around it
The two pictorial representations of roundabouts that appear as part of reg 92(7) are as follows:
Example 4
Roundabout with 3 entry points
Example 5
Roundabout with 5 entry points
The term 'roundabout' is defined in reg 91(1) of the RTC as follows:
roundabout means an intersection ‑
(a)with one or more marked lanes, all of which are for the use of vehicles travelling in the same direction around a central traffic island; or
(b)with room for one or more lines of traffic travelling in the same direction around a central traffic island,
whether or not there is a 'roundabout' sign at each entrance.
The term 'traffic island' is defined in reg 3(1) of the RTC to mean 'any physical provision, other than lines, marks or other indications on a carriageway, made at or near an intersection, to guide vehicular traffic'.
Accordingly, a roundabout is an intersection that contains a central traffic island around which vehicles must negotiate.
Part 9 of the RTC, which includes reg 92, sets out the rules which govern the way in which vehicles are to negotiate their way around the central traffic island of a roundabout.
It can be accepted that the pictorial representation of the roundabout in reg 92(2) provides an example of a situation which does not involve a T‑intersection. The situation depicted does not involve a T‑intersection because there is no terminating road. Both carriageways (that is, the road depicted running vertically and the road depicted running horizontally) are continuing carriageways. What cannot be accepted, however, is that in the situation depicted the length of carriageways that are defined at their beginning by a speed limit sign are brought to an end (or to use the language of the definition of 'speed zone', defined at their end) by the intersection comprised of the roundabout. To the contrary, the carriageways continue through the intersection comprised of the roundabout. Therefore, any speed limit imposed by speed limit signs on each of the carriageways on the approach to the intersection, assuming it is not brought to an end prior to the intersection by one of the signs specified in par (a) ‑ (c) of the definition of 'speed zone', is not brought to an end by the intersection, that is, is not brought to an end by a means other than one of the means specified in the definition of 'speed zone'. Rather, the speed limit established by any speed limit sign on each of the carriageways on the approach to the intersection (that is, the speed limit signs defining the beginning of the speed zone) will continue to apply through the roundabout and until brought to an end by one of the means specified in par (a) ‑ (d) of the definition of 'speed zone'. The fact that the carriageway may continue through the roundabout to a 'built‑up area' is of no relevance because the 'built‑up area' would still be subject to the speed zone for the carriageway defined at its beginning by the speed limit sign erected on the carriageway on the approach to the roundabout.
The pictorial representation of the roundabout with three entry points which appears as part of reg 92(7) depicts a T‑intersection which contains a central traffic island around which the vehicles must negotiate. Absent the central traffic island this intersection would be a classic right angle T‑intersection. The presence of a central traffic island does not alter the key features of the T‑intersection (that is, there is a terminating road and a continuing road). Accordingly, any speed limit established by speed limit signs on the vertically depicted carriageway (the terminating road), even if not brought to an end prior to the intersection by one of the signs specified in par (a) ‑ (c) of the definition of 'speed zone' would be brought to an end by the T‑intersection, that is, by the means specified in par (d) of the definition of 'speed zone'.
The horizontally depicted carriageway is a continuing carriageway. It continues on through the roundabout. Therefore, the position is as stated above in relation to the pictorial representation forming part of reg 92(2). Any speed limit imposed by speed limit signs on the carriageway on the approach to the intersection, assuming it is not brought to an end prior to the intersection by one of the signs specified in par (a) ‑ (c) of the definition of 'speed zone', is not brought to an end by the intersection; that is, is not brought to an end by a means other than one of the means specified in the definition of 'speed zone'. Rather, the speed limit established by any speed limit sign on the carriageway on the approach to the intersection (that is, the speed limit sign defining the beginning of the speed zone) will continue to apply through the roundabout and until brought to an end by one of the means specified in par (a) ‑ (d) of the definition of 'speed zone'.
Even if it is assumed, contrary to my above expressed view, that the roundabout with three entry points depicted as part of reg 92(7) does not constitute a T‑intersection, that is, that the vertically depicted carriageway is not brought to an end by the intersection but continues around to the left, then any speed limit imposed by speed limit signs on the carriageway on the approach to the intersection, assuming it is not brought to an end prior to the intersection by one of the signs specified in par (a) ‑ (d) of the definition of 'speed zone', is not brought to an end by a means other than one of the means specified in the definition. Rather, the speed limit established by any speed limit sign on the carriageway on the approach to the intersection (that is, the speed limit signs defining the beginning of the speed zone) will continue to apply through the roundabout and around to the left until brought to an end by one of the means specified in par (a) ‑ (d) of the definition of 'speed zone'. Again, the fact that the carriageway may continue through the roundabout and around to the left into a 'built‑up area' is of no relevance because the 'built‑up area' would still be subject to the speed zone for the carriageway defined at its beginning by the speed limit sign erected on the carriageway on the approach to the roundabout.
That leaves the second of the pictorial representations forming part of reg 92(7) referred to by the appellant, the pictorial representation of the five point entry roundabout.
It can be accepted that the pictorial representation of the five entry point roundabout depicts an intersection that is not a T‑intersection because by definition a T‑intersection involves an area where two carriageways meet. The situation depicted in this pictorial representation involves the meeting of more than two carriageways.
Again, what cannot be accepted, however, is that the carriageways are brought to an end by the intersection comprised of the roundabout. To the contrary, the carriageways continue into the intersection comprised of the roundabout. Therefore, once again, any speed limit imposed by speed limit signs on each of the carriageways on the approach to the intersection, assuming it is not brought to an end prior to the intersection by one of the signs specified in par (a) ‑ (c) of the definition of 'speed zone', is not brought to an end by the intersection; that is, is not brought to an end by a means other than one of the means specified in the definition of 'speed zone'. To the contrary, the speed limit established by any speed limit sign on each of the carriageways on the approach to the intersection, assuming that it is not brought to an end prior to the intersection by one of the means specified in par (a) ‑ (d) of the definition of 'speed zone', (that is, the speed limit signs defining the beginning of the speed zone) will continue to apply in and through the roundabout and until brought to an end on the carriageway onto which the driver exits by one of the means specified in par (a) ‑ (d) of the definition of 'speed zone'. The fact that the carriageway may continue through the roundabout and into a 'built‑up area' is of no relevance because the 'built‑up area' would still be subject to the speed zone for the carriageway defined at its beginning by the speed limit sign erected on the carriageway on the approach to the roundabout.
Summary
In summary, and for the reasons I have stated, in my opinion it is sufficient, in order to prove that a driver of a motor vehicle is 'in a speed zone', to prove that the driver drove on a carriageway past the speed limit sign defining the beginning of the zone and, at the time that the driver's speed is obtained, the driver had not passed any of the signs specified in par (a) ‑ (c) of the definition of 'speed zone' and the length of carriageway had not come to an end at a T‑intersection. To put it another way, the proof of the existence of a speed limit sign on a carriageway is by itself sufficient to prove the existence of a speed zone without adducing evidence of the precise means by which the zone is brought to an end.
The evidence given by Senior Constable Green was that the 40 km per hour speed limit stipulated by the first two 40 km per hour speed limit signs still applied at the point when the appellant's speed was obtained. It was, on his evidence, a 'posted 40 kilometre an hour zone'. It was clear from his evidence that at the time he obtained the appellant's speed the relevant length of the carriageway had not been brought to an end by any of the signs specified in par (a) ‑ (c) of the definition of 'speed zone' or by a T‑intersection. It follows, in my opinion, that it was open for the magistrate to find on the basis of Senior Constable Green's evidence that the appellant was in a 'speed zone' despite the fact that the prosecution did not adduce evidence of where the zone ended or the precise means by which it ended. Accordingly, I am not persuaded that the magistrate made the error of law and fact asserted by the appellant.
My above stated conclusion should not be taken as suggesting that the prosecution should not, in cases involving charges under reg 11(3), adduce evidence of the means by which a speed zone is brought to an end. It will obviously be prudent for the prosecution to adduce such evidence in order to avoid the type of argument that has been raised by the appellant in this case, or some similar argument, being advanced on future occasions.
The judicial notice issue
If contrary to my above expressed conclusion the prosecution did fail to adduce evidence sufficient to prove that the appellant was driving within a speed zone, I am satisfied that the appeal should be dismissed on the basis that no substantial miscarriage of justice has occurred.[39] My reasons for this conclusion are as follows.
[39] CAA, s 14(2).
The appellant's trial took place in Perth.
Shepperton Road is a main arterial road that leads, if one is travelling in a westerly direction, to the Causeway and consequently into the Perth city centre. It is a road that is within metropolitan Perth.
The portion of Albany Highway on which the appellant was driving at the time that his speed was obtained (that is, the portion after the point where Shepperton Road breaks off from the west bound lanes of Albany Highway) is also a main arterial road that leads towards, albeit not directly into, the Perth city centre. It is a busy and generally well known portion of road that is close to the Perth city centre.
The intersection of Albany Highway and Shepperton Road in Burswood, which is a T‑intersection, is a major intersection in metropolitan Perth. The intersection is generally well known and it is readily ascertainable from maps (including map 289 of the Perth UBD Street Directory which was provided to the court by the respondent on the hearing of the appeal on the basis that it could be used by the court to 'remind' itself of what it already knows about the relevant portion of Albany Highway and its intersection with Shepperton Road).[40]
[40] Prentice v Cummins (No 5) [81].
In all these circumstances it was, in my opinion, open for the magistrate to take judicial notice of the fact that the relevant length of carriageway on which the appellant was driving that was subject to the 40 km per hour speed limit did come to an end, if not earlier by one of the means specified in par (a) ‑ (c) of the definition of 'speed zone', by means of a T‑intersection comprised of the intersection of Albany Highway and Shepperton Road in Burswood at a location just east of the Causeway.[41] Given that this was a fact that the magistrate was permitted to take judicial notice of, if his Honour did, contrary to my conclusion, make an error of fact or law in finding that the prosecution had adduced sufficient evidence to prove that the appellant was driving in a speed zone, the error was not one that resulted in a substantial miscarriage of justice. I note in this context that it is not correct to assert, as the appellant does in his written submissions, that the Perth UBD street directory page provided to the court by the respondent shows Albany Highway joining Armagh Street at a left‑end bend. [42] That is not what the page shows. The page shows Albany Highway meeting Shepperton Road at a T‑intersection.
[41] Pope v Ewendt (1977) 17 SASR 45, 47 ‑ 48; Avins v Garvey [2001] WASCA 415; (2001) 35 MVR 277 [14]; Hankinson v Brookview Holdings Pty Ltd [2004] WASCA 279 [56]; Pike v Becker [2012] WASC 397; (2012) 62 MVR 109 [49]; Culverwell v Ginbey [2016] WASC 3 [192].
[42] Appellant's Supplementary Outline of Submissions dated 30 October 2018, par 12.
Conclusion
For the reasons I have stated I am not persuaded that either of the appellant's grounds of appeal has a reasonable prospect of success. I therefore refuse leave to appeal on each of the grounds and dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
ASSOCIATE TO THE HONOURABLE JUSTICE DERRICK
16 NOVEMBER 2018
0
7
3