Pelligra v Forbes - [2024] VSCA 242

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0067

ROSARIO PELLIGRA	Applicant
v
HAMISH GUTHRIE FORBES	Respondent

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JUDGES:	NIALL, MACAULAY and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2024
DATE OF JUDGMENT:	17 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 242
JUDGMENT APPEALED FROM:	[2024] VSC 311 (Watson J)

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CRIMINAL LAW – Appeal – Applicant found guilty of exceeding speed limit – Applicant appealed from magistrate’s order to Trial Division of Supreme Court on question of law – Where not driving heavy vehicle an element of the offence – Whether error in conclusion that applicant was not driving a heavy vehicle – No basis to conclude by inferential reasoning or judicial notice applicant’s car not a heavy vehicle – Whether evidence established applicable speed limit – Unnecessary to decide – Leave to appeal granted – Appeal allowed – Charge dismissed.

WORDS AND PHRASES – ‘heavy vehicle’ – ‘gross vehicle mass’ – ‘maximum loaded mass’.

Evidence Act 2008, s 144; Heavy Vehicle National Law Act 2012 (Qld), sch, ss 5, 6; Road Safety Act 1986, s 3; Road Safety (Drivers) Regulations 2019, regs 5, 6; Road Safety Road Rules 2017, rr 20–25.

Fox v Director of Public Prosecutions (2022) 297 A Crim R 25, discussed.

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Counsel
Applicant:		Mr OP Holdenson KC
Respondent:		Mr J O’Connor
Solicitors
Applicant:	Oakley Thompson & Co
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
MACAULAY JA
T FORREST JA:

On 21 June 2023, a magistrate found the applicant guilty of the offence of exceeding a speed limit of 100 kilometres per hour contrary to r 20(2) of the Road Safety Road Rules 2017. The applicant appealed that decision to the Trial Division of this Court, contending that the magistrate erred in finding that the Mercedes sports utility vehicle (‘SUV’) driven by the applicant was ‘other than a heavy vehicle’ — that being an element of the offence — and in finding that his speed exceeded the applicable speed limit of 100 kilometres per hour.
On 13 June 2024, the judge dismissed the appeal, finding that it was not reasonably open to question and was common knowledge generally that a Mercedes SUV of the kind driven by the applicant was a vehicle that could be driven with a car licence and did not require any form of heavy vehicle licence. His Honour also concluded that there was unchallenged evidence before the magistrate establishing that a 100 kilometres per hour speed limit applied and that the relevant signs complied with the Road Safety Road Rules.
The applicant now seeks leave to appeal from that decision on two grounds:
1. The learned Trial Judge erred in finding that the learned Magistrate had not erred when the Magistrate held that an element of the pleaded Road Safety Road Rules 2017 [r] 20(2) charge of, ‘being the driver of a vehicle, other than a heavy vehicle…’ had been proved beyond reasonable doubt in that…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Pelligra v Forbes

Details

AGLC: Pelligra v Forbes [2024] VSCA 242
Case: [2024] VSCA 242
Decision Date: 17 October 2024

CaseChat Overview and Summary

The appeal in Pelligra v Forbes involved the applicant, Pelligra, who was found guilty of exceeding the speed limit by a magistrate. Pelligra appealed to the Trial Division of the Supreme Court on a question of law, arguing that the magistrate erred in concluding that he was not driving a heavy vehicle, which is an element of the offence. The court had to determine whether the magistrate’s conclusion was correct and if the evidence established the applicable speed limit. The case hinged on the interpretation of the term ‘heavy vehicle’ and whether the evidence supported the magistrate’s finding that Pelligra’s car was not a heavy vehicle.

The legal issues before the court included whether there was any basis for the magistrate to conclude that Pelligra’s car was not a heavy vehicle through inferential reasoning or judicial notice. The court also had to consider the definitions of ‘heavy vehicle’, ‘gross vehicle mass’ and ‘maximum loaded mass’ as provided in the relevant statutes and regulations. The court had to examine if the evidence was sufficient to establish the applicable speed limit for the vehicle in question, although this was not ultimately necessary to decide the appeal.

The court found that there was no basis for the magistrate’s conclusion that Pelligra’s car was not a heavy vehicle through inferential reasoning or judicial notice. The court held that the definitions in the statutes and regulations did not provide a clear distinction between heavy and non-heavy vehicles in the context of the offence. Consequently, the court granted leave to appeal and allowed the appeal, dismissing the charge against Pelligra. The court did not find it necessary to determine the applicable speed limit as the conclusion on the heavy vehicle status was dispositive of the case.

Orders