Pelligra v Forbes - [2024] VSC 311

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…

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] VSC 311
Case: [2024] VSC 311
Decision Date: 13 June 2024

CaseChat Overview and Summary

Pelligra v Forbes was a matter heard by the County Court of Victoria, which involved an appeal against a conviction for speeding. The respondent, Pelligra, was found guilty of exceeding the speed limit on a road in Melbourne. The primary issue for the court was whether the prosecution had adequately established that the speed limit was correctly signed and observed. The appellant, Forbes, argued that the Mercedes AMG GLE, which was the vehicle in question, did not qualify as a heavy vehicle, and thus the speed limit for heavy vehicles did not apply to it.

The court was required to determine the legal status of the vehicle in question and whether the speed limit sign complied with the relevant statutory requirements. The court also needed to assess whether the evidence presented by the prosecution sufficiently established the speed limit and whether it had been exceeded. In examining these issues, the court considered the definitions and provisions of the Road Safety Act 1986 (Vic), the Road Safety Road Rules 2017 (Vic), and the Evidence Act 2008 (Vic). The court noted that the vehicle in question was not classified as a heavy vehicle and thus was subject to the standard speed limits for other vehicles.

In its reasoning, the court concluded that the Mercedes AMG GLE was not a heavy vehicle and therefore the speed limit for heavy vehicles did not apply. However, the court found that the prosecution had established the applicable speed limit through evidence that demonstrated the existence and compliance of the speed limit sign. The court was satisfied that the evidence, including the photograph of the speed limit sign, was sufficient to show that the speed limit was properly posted and that the appellant's vehicle had indeed exceeded this limit. As such, the appeal was dismissed, and the conviction upheld.

Orders