Pelligra v Forbes
[2024] VSC 311
•13 June 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 03207
| ROSARIO PELLIGRA | Appellant |
| v | |
| HAMISH GUTHRIE FORBES | Respondent |
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JUDGE: | Watson J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 May 2024 |
DATE OF JUDGMENT: | 13 June 2024 |
CASE MAY BE CITED AS: | Pelligra v Forbes |
MEDIUM NEUTRAL CITATION: | [2024] VSC 311 |
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APPEAL – Criminal Procedure Act 2009 (Vic) s 272 – Question of law – Whether vehicle other than a heavy vehicle – Matters of common knowledge – Mercedes AMG GLE is not a heavy vehicle – Whether prosecution had proved speed limit – Whether evidence established compliant speed limit sign – Evidence established speed limit as alleged – Appeal dismissed – Road Safety Road Rules 2017 (Vic) rr 20 and 21; Road Safety Act 1986 (Vic) s 3; Evidence Act 2008 (Vic) s 144.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr W Walsh-Buckley | ZD Legal Defence & Advisory Lawyers |
| For the Respondent | Mr R Gibson KC | Office Of Public Prosecutions Victoria |
HIS HONOUR:
On 8 December 2020 Mr Pelligra was driving a black Mercedes AMG GLE with registration AUI120 along the Western Highway, Green Lake. The respondent, Leading Senior Constable Forbes, detected Mr Pelligra’s speed as 143 kilometres per hour in an area where the speed limit was 100 kilometres per hour.
Mr Pelligra was charged with an offence that contrary to rule 20(2) of the Roads Safety Road Rules 2017 (Vic) he:
At Green Lake on 08/12/2020, being the driver of a vehicle, other than a heavy vehicle on a length of road, namely, Western Highway between 284 kilometre post and 286 kilometre post, did drive at a speed which exceeded a speed-limit sign of 100 kilometres per hour, which applied to the accused for the length of road on which the accused was driving, by 35 kilometres per hour or more but by less than 45 kilometres per hour. Detected speed 143 km/h. Alleged speed 141 km/h.
On 21 June 2023 Mr Pelligra was convicted of that offence.
Mr Pelligra now appeals that decision contending that the Magistrate erred:
(a) in finding that the Mercedes driven by Mr Pelligra was other than a heavy vehicle; and
(b) in finding that Mr Pelligra’s speed ‘exceeded a speed limit sign of 100 kilometres per hour’.
For the reasons which follow the appeal should be dismissed and the conviction upheld.
Legislation relevant to heavy vehicle issue
As at the date of the alleged offence, rule 20 of the Road Safety Road Rules 2017 relevantly provided as follows:
Obeying the speed-limit
(2) A driver of a vehicle other than a heavy vehicle must not drive at a speed which exceeds the speed‑limit applying to the driver for the length of road where the driver is driving by 35 kilometres per hour or more but less than 45 kilometres per hour.
Penalty: In the case of a natural person, 15 penalty units;
In the case of a body corporate, 120 penalty units.…
(5) for the purposes of this rule, a “heavy vehicle” includes a motor vehicle (other than a bus) that has a GCM greater than 14.5 tonnes.
Notes
…
5 Bus, GCM, heavy vehicle and motor vehicle are defined in the Road Safety Act 1986.
Section 3 of the Road Safety Act 1986 (Vic) contains the following definitions:
GCM (gross combination mass) of a motor vehicle means the greatest possible sum of the maximum loaded mass of the motor vehicle and of any vehicles that may lawfully be towed by it at one time–
(a) as specified by the motor vehicle’s manufacturer; or
(b) as specified by the Secretary if–
(i) the manufacturer has not specified the sum of the maximum loaded mass; or
(ii) the manufacturer cannot be identified; or
(iii) the vehicle has been modified to the extent that the manufacturer specification is no longer appropriate;
…
GVM (gross vehicle mass) of a vehicle means the maximum loaded mass of the vehicle–
(a) as specified by the vehicle’s manufacturer; or
(b) as specified by the Secretary if–
(i) the manufacturer has not specified a maximum loaded mass; or
(ii) the manufacturer cannot be identified; or
(iii) the vehicle has been modified to the extent that the manufacturer’s specification is no longer appropriate;
…
Heavy vehicle has the same meaning as in the Heavy Vehicle National Law (Victoria).
Section 4 of the Heavy Vehicle National Law Application Act 2013 (Vic) adopts the Heavy Vehicle National Law set out in the Schedule to the Heavy Vehicle Law Act 2012 (Qld) as the Heavy Vehicle National Law (Victoria).
Section 6 of the Heavy Vehicle National Law (Victoria) defines heavy vehicle. Relevantly it provides:
(1) For the purposes of this law, a vehicle is a “heavy vehicle” if it has a GVM or ATM of more than 4.5t.
Section 5 of the Heavy Vehicle National Law (Victoria) provides definitions for ATM and GVM:
ATM (aggregate trailer mass), of a heavy trailer, means the total maximum mass of the trailer, as stated by the manufacturer, together with its load and the mass imposed on the towing vehicle by the trailer when the towing vehicle and trailer are on a horizontal surface.
…
GVM (gross vehicle mass), of a vehicle, means the maximum loaded mass of the vehicle–
(a) if the registration authority has specified the vehicle’s maximum loaded mass – specified by the registration authority; or
(b) otherwise – stated by the vehicle’s manufacturer.
The Road Safety (Drivers) Regulations 2019 (Vic) provides for various categories of vehicle licence:
6 Categories of motor vehicles for licensing purposes
(1) For licensing purposes, the categories of motor vehicles are as follows
(a) motor cycle;
(b) car;
(c) light rigid vehicle;
(d) medium rigid vehicle;
(e) heavy rigid vehicle;
(f) heavy combination vehicle;
(g) multi-combination vehicle.
(2) For each category of motor vehicle referred to in subregulation (1) there is a corresponding category of driver licence with the same name.
Definitions relevant to the various categories of licence are to be found in the Road Safety (Drivers) Regulations 2019 (Vic) regulation 5:
car means a motor vehicle, other than a motor cycle, that–
(a) has a GVM of not more than 4.5 tonnes; and
(b) is constructed or equipped to seat not more than 12 adults (including the driver);
…
heavy combination vehicle means–
(a) a prime mover to which is attached a single semi-trailer that has a GVM of more than 9 tonnes plus any unladen converter dolly; or
(b) a rigid motor vehicle to which is attached a trailer that has a GVM of more than 9 tonnes plus any unladen converter dolly;
heavy rigid vehicle means–
(a) a motor vehicle that has a GVM of more than 8 tonnes and has 3 or more axles (whether or not the wheels on those axles are on the road); or
(b) a bus consisting of more than one rigid section which are connected to one another so as to allow rotary movement and passenger access between the sections;
…
light rigid vehicle means a motor vehicle that–
(a) has a GVM of more than 4.5 tonnes but not more than 8 tonnes; or
(b) seats more than 12 adults (including the driver) and has a GVM of not more than 8 tonnes;
…
medium rigid vehicle means a motor vehicle that has a GVM of more than 8 tonnes and has no more than 2 axles;
Relevant to this aspect of the appeal, the following propositions emerge from the various legislative provisions:
(a) Rule 20(5) of the Road Safety Road Rules 2017 is inclusive not exhaustive of the definition of heavy vehicle in rule 20(1);
(b) The definitions of GVM and GCM in the Road Safety Act1986 do not apply because heavy vehicle is defined as having the same meaning as in the Heavy Vehicle National Law (Victoria) which is relevantly defined by reference to GVM and ATM and which has its own definition of GVM;
(c) The Mercedes AMG GLE cannot be a heavy vehicle by reference to aggregated trailer mass because:
(i) it is plainly not a ‘heavy trailer’; and
(ii) at the time of the offence it was not towing such a trailer;
(d) A car licence allows a driver to drive a vehicle up to 4.5 tonnes GVM; and
(e) A licence that is not a motorcycle licence and not a car licence (‘heavy vehicle licence’) is required to drive a vehicle which has a GVM of greater than 4.5 tonnes.
The evidence regarding the vehicle
The body camera footage shows the vehicle Mr Pelligra was driving. It is an SUV. In his submissions Mr Pelligra sought to characterise the vehicle as a big heavy SUV but it does not look especially big and the only evidence as to its weight (referred to in the next paragraph) does not allow for any comparison with other SUVs.
Mr Pelligra tendered an expert report from a Dr George Rechnitzer, an engineer, that was admitted into evidence. That report contains photographs of the vehicle driven by Mr Pelligra, together with the vehicle dimensions and its kerb weight being 2438kg.
The respondent, Senior Constable Kiernik, Mr Pelligra, Mr Doyle who was a passenger in Mr Pelligra’s vehicle and Dr Rechnitzer all described Mr Pelligra’s vehicle as a ‘car’.
The Magistrate’s decision on the heavy vehicle issue
Before the Magistrate Mr Pelligra contended that the prosecution had not proved beyond reasonable doubt that a Mercedes AMG GLE was other than a heavy vehicle and that it was not a matter of common knowledge that it was other than a heavy vehicle. The Magistrate held that it was a matter of common knowledge that Mr Pelligra’s Mercedes was not a heavy vehicle and that the prosecution had proved its case. His reasons on this aspect are:
There is no issue as to the car driven by the defendant.
If nothing else it was clearly depicted in the body worn camera footage and in the report from the accused’s expert.
The issue was whether that vehicle was proven or needed to be proven to be other than a heavy vehicle.
The prosecution position was that I could take judicial notice of the fact. The accused submitted that I could not.
I am aware from my own experience that the accused’s vehicle is other than a heavy vehicle. I in fact have a category of heavy vehicle license. I am conscious however that the test is not my knowledge based on some ‘’special’’ knowledge that I might have. Whilst I am not sure that verification by means of the type of licence with which the vehicle can be driven is sufficient (as was submitted by the prosecution) I am satisfied that it is common knowledge that the vehicle driven by the defendant was not a heavy vehicle.
I am satisfied that I can take judicial notice of the fact that the accused vehicle was other than a heavy vehicle.
Common knowledge
Section 144 of the Evidence Act 2008 (Vic) (‘the Evidence Act’) provides as follows:
Matters of common knowledge
(1) Proof is not required about knowledge that is not reasonably open to question and is—
(a) common knowledge in the locality in which the proceeding is being held or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
The section speaks of common knowledge that is not reasonably open to question. It does not require universal knowledge. It is not necessary that literally ‘all persons’ must be aware of a fact for it to be common knowledge.
In this regard, statements to the effect that a fact would be common knowledge or capable of judicial notice if it is ‘of a class that is so generally known as to give rise to the presumption that all persons are aware of it’[1] do not require that all persons are actually aware of the fact. The fact need only be sufficiently generally known that it gives rise to a presumption that it is something overwhelmingly understood and accepted within the community as true.
[1]Holland v Jones (1917) 23 CLR 149, 153 [Isaacs J]; Properjohn v Gaughan [1998] ACTSC 26, [13].
If complete universality were required then even on issues such as whether the Earth is round, a court would not be permitted to treat the matter as common knowledge because of the potential existence of some infinitesimal proportion of the community who believed in a flat Earth. This cannot have been the intention of Parliament in enacting s 144.
Mr Pelligra referred me to a number of cases in which a variety of matters had been held to be common knowledge[2] and a number of cases in which particular matters had been held not to be common knowledge.[3] None of those cases provided any real assistance in the circumstances of this case.
[2]Re Ly; Ex parte Dixon v Ly (1995) 62 FCR 432; Wyer v Hunt [2005] ACTSC 15, [22]; Sadler v Leda Commercial Properties Pty Ltd [2004] ACTSC 15, [28]; Combined Excavations & Supplies v Bowis [2000] NSWCA 298, [68]–[71]; Sullivan v Gordon (1999) 47 NSWLR 319, [76]; Jones v Toben [2002] FCA 1150, [64]–[65].
[3] X v X (1999) 26 Fam LR 51; Bolitho v Cohen (2005) 33 Fam LR 471, [87]; R v Mason [2000] NSWCCA 82.
I was also referred to two County Court decisions and a decision of a Magistrate which dealt with whether it was common knowledge that the vehicles in those cases were other than heavy vehicles.
In Theodoridis v DPP (‘Theodoridis’)[4] Hogan J held that it was common knowledge that a motorcycle was not a heavy vehicle. After a review of the relevant legislation her Honour concluded:
The motorbike depicted in Exhibit “C” is about the furthest thing one could imagine from the “heavy vehicle” defined and controlled by the [Heavy Vehicle National Law]. That motorbike and its use is not a vehicle intended to be regulated by that Law. I am confident that it would weigh, in total (with rider or with rider and pillion passenger and even with attached paniers packed to capacity), well under one tonne, and probably well under one-half of one tonne.
…
In my view, it is not reasonably open to question, and it would be common knowledge generally, that a motorbike of the approximate medium size depicted in Exhibit “C”, with no towbar or other means to carry loads apart from the rider or perhaps the rider and a pillion passenger and/or with attached paniers packed to capacity (neither of the latter being evident in Exhibit “C”), would have a GVM very much less than, and nowhere near approaching, 4.5 tonne.[5]
[4][2021] VCC 2050.
[5]Ibid [23], [26].
In my view her Honour was undoubtedly correct. It is common knowledge that a motorcycle is not subject to the Heavy Vehicle National Law. However, Mr Pelligra’s counsel contended that the same could not be said of an SUV.
In Acevski v DPP (‘Acevski’)[6] Lauritsen J held that a prosecution for speeding on a motorcycle failed because it had not been proved that the motorcycle had a GVM of less than 4.5 tonnes. His Honour placed particular emphasis on what he described as the exhaustive nature of the definition in s 5 of the Heavy Vehicle National Law (Victoria). His Honour said that unless paragraphs (a) and (b) of that definition were complied with the GVM of the vehicle was not established.[7]
[6][2023] VCC 2316.
[7]Ibid [20].
His Honour then held that because a certificate under s 84 of the Road Safety Act 1989 did not specify a GVM for the motorcycle, the prosecution had not proved an element of the offence.[8] His Honour appears to have regarded the absence of specification by the relevant registration authority as conclusive on this issue. With respect to his Honour it is difficult to see how this is so:
(a) If paragraphs (a) and (b) of the definition in section 5 are not met, that is no GVM is specified either by a registration authority or a manufacturer, then the vehicle is not a heavy vehicle for the purposes of the Heavy Vehicle National Law (Victoria) and therefore not a heavy vehicle for the purposes of the offence; and
(b) In any event, the absence of specification by a registration authority still leaves open the possibility of specification by a manufacturer, in which case it would be appropriate to consider whether it was common knowledge that a motorcycle was a heavy vehicle.
[8]Ibid [34]–[37].
In light of his reasoning regarding the effect of the s 86 certificate it would seem his Honour did not regard it as necessary to consider whether it was common knowledge that a motorcycle does not have a GVM of 4.5 tonnes.
I do not regard the reasoning in Acevski as persuasive and I regard the basis upon which his Honour declined to follow the decision in Theodoridis as wrong.
An earlier decision of the Magistrates’ Court in Police v Weeks (No. 2)[9] provides facts and reasoning which are more apposite to the circumstances of this case. In that case the question was whether a Chrysler sedan was other than a heavy vehicle. The Magistrate held that it was other than a heavy vehicle because it was a vehicle capable of being driven on a standard car licence.[10] As will be seen from my reasoning below, I regard the approach of the Magistrate as applicable in the circumstances of this case.
[9][2021] VMC 007.
[10]Ibid [15], [17].
The grounds of the appeal – heavy vehicle issue
Mr Pelligra contended that the Magistrate erred:
(a) in finding that he could take judicial notice under s 144 of the Evidence Act that the accused’s vehicle was ‘other than a heavy vehicle’ in proving that element of the offence beyond reasonable doubt; and
(b) in finding that because the accused’s vehicle did not require any special licence or permits and could be driven on a standard car licence that was also proof beyond reasonable doubt that the accused’s vehicle was ‘other than a heavy vehicle’.
As to the second of these grounds of appeal the respondent correctly contends that the Magistrate made no such finding. Nonetheless, it is necessary to deal with that ground of appeal as that is the basis upon which I would uphold the decision of the Magistrate.
Mercedes AMG GLE is not a heavy vehicle
A Mercedes SUV such as that driven by Mr Pelligra would not be described as a heavy vehicle in ordinary usage. It is as the witnesses described it a ‘car’ and as the photographs demonstrate not a particularly large one. I am satisfied that in ordinary usage people would consider a heavy vehicle as something other than a car – in most instances a bus or a truck, perhaps a very large van. It was open to the Magistrate to find that it was common knowledge that a Mercedes SUV was not a heavy vehicle in common usage. However, I accept that the relevant legislative provisions do not define ‘heavy vehicle’ by reference to ordinary usage but by reference to a very specific concept – the gross vehicle mass. A finding that it was common knowledge that a Mercedes SUV was not a heavy vehicle according to ordinary usage would not suffice for proof of the offence.
The evidence establishes that Mr Pelligra’s vehicle had a kerb weight of 2.438 tonnes. This implies that for the vehicle to have a GVM of greater than 4.5 tonnes it would have to be capable of being lawfully loaded with a further mass 2.062 tonnes. Counsel for Mr Pelligra submitted that the dimensions of the Mercedes SUV might permit it to be loaded with more than that extra mass. The question though is not whether the vehicle could be loaded with more than that mass (if for example it was loaded with 2.1 tonnes of gold bullion or 2.1 tonnes of uranium) but whether it can be lawfully loaded with more than that mass. Nonetheless, ultimately I am not satisfied that it was common knowledge that a vehicle with the kerb mass of Mr Pelligra’s vehicle could not lawfully be loaded beyond 4.5 tonnes.
I am however satisfied that, in the circumstances, it was not reasonably open to question and was common knowledge generally that a Mercedes SUV of the type driven by Mr Pelligra was a vehicle that could be driven with a car licence and did not require any form of heavy vehicle licence.
As noted above the provisions of the Road Safety (Drivers) Regulations 2019 provide in effect, that:
(a) A car driver licence on its own only permits a vehicle of not more than 4.5 tonnes GVM to be driven; and
(b) Any vehicle greater than 4.5 tonnes GVM requires some form of heavy vehicle licence.
In his submissions Mr Pelligra emphasised that a person could be unlawfully driving a heavy vehicle. This proposition may be accepted but it does not bear upon the proposition that it is common knowledge in the community that you do not need a heavy vehicle licence to drive an SUV generally or a Mercedes SUV in particular. It is that latter fact combined with the licensing regime which allows the inference to be drawn beyond reasonable doubt that Mr Pelligra’s vehicle was not a heavy vehicle.
The speed limit sign argument
Mr Pelligra contends (as he did before the Magistrate):
(a) the charge alleges he drove at ‘a speed which exceeded a speed-limit sign of 100 kilometres per hour’;
(b) it was therefore essential that the respondent prove beyond reasonable doubt that there was a speed limit sign of 100 kilometres an hour;
(c) the respondent only gave evidence of a 100 kilometre per hour sign;
(d) the respondent did not give evidence of a ‘speed limit’ sign of 100 kilometres per hour complying with rule 21 of the Road Safety Road Rules 2017; and
(e) as a result the offence was not proved.
Authorities re speed limit signs
For the proposition that it was necessary to give evidence of a sign complying with rule 21 Mr Pelligra relied on two authorities in this Court and one decision of the County Court and argued that another authority in this Court was per incuriam or distinguishable. I do not accept Mr Pelligra’s analysis of those authorities.
In Ciorra v Cole (‘Ciorra’)[11] Redlich J held:
The essence of an offence under r 20 is that a driver has driven at a speed over the speed limit. An essential factual ingredient of the offence is the speed limit which the driver is said to have exceeded. The speed limit which applies to the driver will depend upon which of rr 21-25 apply. As the evidence disclosed that it was speed limit signs which determined the speed limit referrable to the appellant’s driving, it would have been preferable that the charge specified that 100 km/h speed limit signs applied. The defence would be entitled to particulars of such a matter if it was not referred to in the charge.
…
There is a distinction between legal elements of the offence, essential factual ingredients and particulars required by the defendant to prepare his or her defence which bear upon the validity of the charge as expressed. I do not accept the contention of the appellant that it was necessary that the charge specify that 100 km/h speed limit signs applied. 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, it is not an essential ingredient for the purpose of identifying the offence. The submission that the charge was a nullity because of the absence of these words cannot be sustained.[12]
[11](2004) 150 A Crim R 189.
[12]Ibid 209 [78], [80].
Mr Pelligra says that Ciorra establishes that evidence must be given of which of rules 21-25 apply. I do not think it does. His Honour held that an essential factual element of the offence is the speed limit which applies. That is the fact which must be proved. Rule 21 provides for a ‘standard’ speed limit sign, rule 22 provides for an area speed limit sign and rule 24 provides for a shared zone sign – all those signs specify a speed limit. Rule 25 specifies the default speed limit in the absence of a sign. If there is evidence to the effect that there was a sign which specified a speed limit and evidence of the speed limit on that sign then the essential fact has been proved. I do not regard Ciorra as establishing that evidence must be given which establishes whether the speed limit sign was a standard sign, an area speed limit sign or a shared zone sign.
Mr Pelligra submitted I should place weight upon a concession by counsel for the DPP recorded in the judgment DPP v Juchnowski[13] because it was not disagreed with by Kyrou J:
[Counsel for the DPP] agreed that it is generally not sufficient for a prosecution witness to give evidence of what speed limit applied, as that would be merely an expression of opinion or hearsay. The witness must also give evidence of how the speed limit was determined, by reference to the alternatives set out in rr 21–25.
[13](2008) 185 A Crim R 66, [20].
I do not read the relevant passage as doing anything other than recording the concession. The judgment in that case deals with a different mode of proof of a speed limit and is not authority for the proposition contained in the concession by counsel and in particular is not authority for the proposition that a witness must give evidence ‘by reference to the alternatives set out in rr 21–25’.
Mr Pelligra also refers to Acevski. In that case there was an absence of any evidence regarding a speed limit sign. It does not assist Mr Pelligra in this case.
In Humphrey v Stubbins (‘Humphrey’)[14] the appellant challenged a conviction for speeding on the basis that there was no admissible evidence before the Magistrates’ Court as to a speed-limit sign of 100 kilometres per hour applying to the relevant length of road. The informant’s evidence did not identify placement of a speed sign that complied with the regulations. The evidence of the speed limit applying was:
Prosecutor: What’s the posted speed limit in that area?
Informant: It’s 100 kilometres an hour in that section.[15]
[14][2023] VSC 504.
[15]Ibid [5].
In Humphrey John Dixon J dismissed the appellant’s appeal. The central aspect of his Honour’s reasoning is contained in the following passage:
Although it will often be the case that an informant will give evidence of a specific sign positioned in a particular spot so as to identify the applicable speed limit over the relevant length of road that is visible to road users and is substantially compliant with the Road Safety Rules, such evidence is a precaution against challenge rather than a necessary proof. Here there was no advance notice, either through the appellant’s conduct when intercepted, or that of his legal representative, putting the speed-limit sign in issue. The absence of evidence with that degree of particularity did not preclude the Magistrates’ Court from being satisfied beyond reasonable doubt on the whole of the evidence before the court not simply that the applicable speed was 100kph but that the speed limit applied in the relevant section of the road and was posted. The magistrate was entitled to infer that when the informant accepted the description ‘posted speed limit’ he was referring to the presence of a physically compliant sign.[16]
[16]Ibid [32].
Mr Pelligra contended that the decision in Humphrey was per incuriam because John Dixon J did not appear to have been taken to the judgments in Ciorra and Juchnowski. I do not regard there as being any inconsistency of approach between Humphrey and Ciorra and I do not regard the concession in Juchnowski as having any bearing on the matter. As I have indicated Ciorra stands for the proposition that the speed limit must be proved and Humphrey accepts that proposition and deals with the manner of proof.
Mr Pelligra contends that Humphrey is distinguishable because in that case the defence had not put the speed limit sign in issue whereas here Mr Pelligra had notified the prosecution that they were being put to strict proof. Whilst John Dixon J refers to the lack of notice regarding the speed limit sign in the paragraph quoted above, that does not bear on the critical finding that on the evidence before the Magistrates’ Court an inference was capable of being drawn that the speed limit signs were compliant.
The evidence regarding the speed limit signs
The relevant viva voce evidence regarding the speed limit is recorded in transcript:
UNIDENTIFIED COUNSEL: Thank you, Your Honour. All right, Mr Forbes. Now, you've described the stretch of road. What speed zone is that?---It's 100 kilometre per hour speed zone.
UNIDENTIFIED COUNSEL: All right, and did you - - -
HIS HONOUR: I missed that answer. What was the answer?
UNIDENTIFIED COUNSEL: (Indistinct words) answer. Can you say it again?---Ah, sorry. It's a 100 kilometre, ah, sign posted speed zone.
UNIDENTIFIED COUNSEL: Okay. Do you know where the signposts are?---Um, there'll be a 100 kilometre signpost coming out of Dadswells Bridge, which is an 80 kilometre per hour zone.
UNIDENTIFIED COUNSEL: Okay?---And there'll be one on the other side, yeah, coming out of Horsham.
The Magistrate regarded this unchallenged evidence as establishing that a 100 kilometre per hour speed limit applied. He was right to do so. The evidence establishes that it was a sign posted speed zone, gives the location of those signs and establishes the speed limit on those signs. As indicated above, I do not regard it as a necessary element for the prosecution to establish that the particular signs were under rule 21. As in Humphrey, in the context of evidence from the informant of a ‘sign posted zone’ it was open to the Magistrate to infer that the references to the 100 kilometre signposts were references to physically compliant signs.
Even if the viva voce evidence of the informant were, contrary to the view I have taken, insufficient to establish the speed limit, there is nothing in Mr Pelligra’s point. Mr Pelligra tendered the report of Dr Rechnitzer. That report reproduces the informant’s statement from the police brief. The relevant portion of the informant’s statement reads:
Western Highway is a highway as defined by the Road Safety Act 1986. The speed zone where the radar was being used and accused speed was checked is 100 kilometres per hour. This zone is defined by the erection of a 100 kilometre per hour sign at the commencement and an 80 kilometre per hour sign at the end. The signs comply with Road Safety Road Rules 2019.
In other words Mr Pelligra placed before the Magistrate uncontradicted evidence that the signs complied with the Road Safety Road Rules 2019.
Mr Pelligra’s third ground of appeal fails.
Conclusion
Mr Pelligra has not established any of his grounds of appeal. The appeal should be dismissed.
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