Pappas v Mirenda - [2021] ACTSC 329

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Pappas v Mirenda
Citation:	[2021] ACTSC 329
Hearing Date:	15 December 2021
DecisionDate:	15 December 2021
Before:	Mossop J
Decision:	See [22]
Catchwords:	CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal against conviction – offence of exceeding the speed limit by less than 15 km/h under s 20 of the Road Transport (Road Rules) Regulation 2017 (ACT) – charge particularised time to the nearest minute but evidence particularised time to the second – reference to a minute includes all seconds within that minute – time is not an element of the offence – provisions of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) relating to proof of offence do not alter the content required in a charge – appeal dismissed
Legislation Cited:	Road Transport (Road Rules) Regulation 2017 (ACT), s 20 Road Transport (Safety and Traffic Management) Act 1999 (ACT), ss 22A, 25
Cases Cited:	R v Masina (No 3) [2020] ACTSC 154 WGC v The Queen [2007] HCA 58; 233 CLR 66
Parties:	John Pappas ( Appellant) Gregory Mirenda ( Respondent)
Representation:	Counsel T Taylor ( Appellant) K McCann ( Respondent)
Solicitors Hugo Law Group ( Appellant) ACT Director of Public Prosecutions ( Respondent)
File Number:	SCA 28 of 2021
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Chief Magistrate Walker Date of Decision: 6 August 2021 Case Title: Mirenda v John Pappas Court File Number: CAN40783/2020

MOSSOP J:

Introduction

This is an appeal from a conviction imposed by a magistrate. The appellant, John Pappas, was found guilty of speeding contrary to s 20 of the Road Transport (Road Rules) Regulation 2017 (ACT) (Road Rules Regulation). He was fined $400.

Overview of the case

The charge against the appellant was as follows:

On 1 February 2020 at 9:50am, John Pappas, did drive NSW vehicle registration [set out] in a non-school zone exceeding the speed limit by less than/equal to 15km/h on Pialligo Avenue in the suburb of Majura.

The offence provision was identified as Australian Road Rules s 20.

A speed camera had detected his vehicle travelling at a speed of 83 km/h. The proceedings before the magistrate were based upon documentary evidence. 10 exhibits were tendered by the prosecution and one by the appellant. Of significance for the present appeal was an evidentiary certificate issued under s 25 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (Safety and Traffic Management Act) with attached photographs. Relevantly, the certificate provided:

6.The series of images provided numbered 1-2 “Attached and marked as Annexure 1” are an accurate copy of the series of images taken of vehicle registration number [set out] NSW by the traffic offence detection device on 1 February 2020 at 9 hours 50 minutes and 11 seconds on Pialligo Avenue, Majura, Australian Capital Territory.

One of the images in annexure 1 identified the date and time as “01/02/2020 09:50:11”. It also identified the speed limit as being…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Pappas v Mirenda [2021] ACTSC 329
Case: [2021] ACTSC 329
Decision Date

CaseChat Overview and Summary

The case of Pappas v Mirenda involved an appeal from the Magistrates Court of the Australian Capital Territory. The appellant, John Pappas, appealed against his conviction for speeding contrary to s 20 of the Road Transport (Road Rules) Regulation 2017 (ACT). The appellant was fined $400 for driving at 83 km/h in a 70 km/h zone on 1 February 2020 at 9:50am on Pialligo Avenue in Majura. The appeal was dismissed by Mossop J.

The appellant argued that the evidence was incapable of establishing the offence as alleged in the charge, as the offence was said to have occurred at 9:50am but the evidence suggested it occurred at 9:50:11am. The appellant contended that the time of the offence was an element of the offence and that the particularisation of the time in the charge was insufficient. The appellant also argued that the magistrate misdirected herself in concluding that an offence alleged to have been committed at 9:50am could be established by evidence of offending conducted at any time between 9:50am and 9:51am. The appellant further argued that the magistrate failed to properly apply s 25 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) which relates to evidentiary certificates. Finally, the appellant argued that the magistrate failed to give any weight to the evidence placed before her by consent.

The court found that the appellant's arguments were based on two false premises. First, the appellant assumed that the charge was particularised as 9:50:00am whereas in fact it was simply 9:50am. The court found that as a matter of ordinary language, the reference to 9:50am was sufficient to encompass the whole of that minute. Second, the appellant submitted that the terms of the Safety and Traffic Management Act relating to traffic offence detection devices meant that the date, time and place of the offence became an element of the offence or was required to be stated, to the second, in the charge. The court found that this submission was without substance, as the offence provision is s 20 of the Road Rules Regulation which is not concerned with the precise time of the offence. The provisions relating to camera detection devices and evidentiary certificates are simply evidentiary provisions facilitating the proof of contraventions of, inter alia, s 20 of that regulation. The court found that these grounds of appeal were not made out.

The court also found that the appellant's argument that the magistrate failed to give any weight to the evidence placed before her by consent was not made out, as the evidence was not relevant to the issue of whether the offence occurred at 9:50am or 9:50:11am.

The final orders of the court were that the appeal was dismissed.

Orders