Police v Weeks (No 2)
[2021] VMC 7
•17th May 2021
IN THE MAGISTRATES’ COURT OF VICTORIA
AT DANDENONG
Case No. K12747921
| Sergeant Travis Cusack 34716 | Informant |
| v | |
| Micah Weeks | Accused |
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MAGISTRATE: | A.G. BURNS |
WHERE HELD: | DANDENONG MAGISTRATES COURT |
DATE OF HEARING: | 27th April 2021 |
DATE OF DECISION: | 17th May 2021 |
CASE MAY BE CITED AS: | Police v Weeks (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VMC 007 |
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CATCHWORDS – CRIMINAL LAW – Traffic law - Exceed speed – Road Safety Road Rules 2017 r 20, 21, 22, 23, 24, 25, Sch 2 – Speed limit signs – Other than a heavy vehicle – Effect of repealed regulations.
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APPEARANCES: | Counsel | Solicitors |
For the Informant | Senior Constable Morris | Victoria Police |
For the Accused | Mr W. Walsh-Buckley | Meldrum & Hyland’s List |
RULING
His Honour
Overview
Mr Weeks is charged with a single count of speeding contrary to RR 20 of the Road Rules 2017 Victoria. The allegation is that he was detected by the Informant using moving mode radar in Berwick whilst driving his vehicle (a Chrysler sedan) at a detected speed of 130 kph (Speed alleged 128kph) on the 2nd of October 2019 in a 70 kph speed zone.
The matter commenced the substantive contest phase on the 27th of April 2021in the Dandenong Magistrates Court, however had been the subject of a prior interlocutory ruling as to the sufficiency of the particulars contained in the charge. That prior ruling was handed down by me on 20th October 2020[1] rejecting Mr Walsh-Buckley’s arguments. The submissions made by Mr Walsh-Buckley asserted the invalidity of the charge on the basis that it lacked the necessary particulars with regard to time of offence, type of vehicle and location of offence. That was ruled upon on an interlocutory basis previously, but those arguments are still maintained by him. Whilst not repeated here, those arguments and the ruling previously made are effectively made final now by virtue of this ruling can of course be the subject of appeal or judicial review as if they were repeated here. With regard to this however, I note that Beale J has since delivered judgment in DPP v Mathew Fox [2021] VSC 226 on 5 May 2021. That case effectively confirms my interlocutory rulings as to time and location. The issues of type of vehicle and the basis for the speed limit were only obliquely referred to by his honour and I will deal with those in more detail below given they were arguments put here in the substantive contest.
[1] Police v Weeks [2020] VMC 23 (20 October 2020)
The Charge
The charge filed against Mr Weeks with the Dandenong Court on 19/10/19 is in the following terms:
The Accused at Berwick on 2/10/2019, being the driver of a vehicle, other than a heavy vehicle, on a length of road namely, Princes Highway between Manuka Road and Beaconsfield Emerald Road, did drive at a speed which exceeded a speed-limit sign of 70 kilometres per hour, which applied to the accused for the length of road on which the accused was driving, 45 kilometres per hour or more. Detected speed 130 km/h. Alleged speed 128 km/h.
The Evidence
The only witness called in the case was the Informant Sergeant Cusack. The matter was subject of some agreed facts and Mr Walsh Buckley consented to the Informant tendering the document, once referred to as ‘the summary’ but now referred to a “Preliminary Brief – Statement made by the Informant”. This was supplemented by oral evidence regarding, amongst other things, the operation of the speed measuring device being a Stalker Dual DSR and the location and compliance with regulations of the applicable speed limit signs. Further, the body worn camera (“BWC”) footage which depicts the whole of the matter from start to finish was played in court, along with the tendering of a transcript of the audio parts of the BWC vision. Three other exhibits were tendered as part of the Police case. They being a photograph of the speed camera equipment inside the police vehicle showing the detected speed of 130 kph, the informant’s authority to operate the speed detection device and the certificate evidencing the testing and sealing of the speed measuring device in accordance with the regulations.
Following Sgt Cusack’s evidence in chief, Mr Walsh-Buckley chose not to cross examine him. His evidence therefore remains unchallenged. Senior Constable Morris then closed the case for the prosecution. Mr Walsh-Buckley then opened and closed the defence case without calling evidence.
Accordingly, Mr Weeks did not give evidence, as is his right
Submissions
Submissions were then made. Mr Walsh-Buckley filed written submissions and made a brief introduction regarding them. The matter was then stood down for myself and the prosecutor to read and digest them. Shortly after the Court re-convened to hear further submissions.
Mr Walsh Buckley submitted that there were three fatal errors in the police case. He referenced his submissions A, B and C. In short, they are as follows:
A. That the prosecution had not proven beyond reasonable doubt that the vehicle driven by the accused at the relevant time was ‘other than a heavy vehicle’ as the charge alleges in accordance with requirement of Road Rule 20(3), Road Safety Road Rules 2017.
B. The prosecution had not proven beyond reasonable doubt that that the applicable ‘speed limit signs’ complied with the relevant subordinate legislation given there was no evidence regarding the foundation of the posted limit pursuant to Road Rules 21 to 25 of the Road Safety Road Rules 2017.
C. The prosecution had not proven beyond reasonable doubt that the in-car speed measuring device being a ‘Stalker Dual DSR’ was used in accordance with the relevant regulations being the Road Safety (General) Regulations 2019 (“RSGR’). The informant had in fact invoked compliance with Road Safety (General) Regulations 2009 unaware that those regulations had expired and been replaced by the 2019 version only 5 days before the offence date.
The learned Prosecutor did not seek more time to make submissions and in short compass, submitted the Court reject each of the three heads of argument. He submitted the Informant’s viva voce evidence supplemented the tendered summary and adequately covered the asserted failings in submissions A and B above. As to C he made no real submissions albeit he effectively adopted the Courts reasoning in discussion with Mr Walsh-Buckley where the Court enquired whether the replaced regulations were identical in nature and if so whether compliance with the 2009 version was therefore compliance with the 2019 version in any event. The Prosecutor further pointed to the Informant’s evidence regarding the relevant prescribed use requirements and submitted that proved appropriate compliance.
Analysis
Submission A
10.Mr Walsh-Buckley submits that that the prosecution has not proven beyond reasonable doubt that the vehicle driven by the accused at the relevant time was ‘other than a heavy vehicle’. The charge alleges this in accordance with requirements of Road Rule 20(3), Road Safety Road Rules 2017 (‘RSRR’). On this issue the evidence is as follows:
That the accused drove a 2019 Chrysler sedan, registered number AZL233 at the time of speed measurement and interception. The Informant’s body worn camera (‘BWC’) vision, tendered as exhibit A in this case, showed the vehicle clearly to be a sedan motor vehicle.
11.Whilst the relevant regulation, Road Rule 20, notes at sub-rule (5) that ‘For the purpose of this rule, a ‘heavy vehicle’ includes a motor vehicle (other than a bus) that has a gross combination weight (‘GCM’) greater than 14.5 tonne’, it is noted that is an ‘inclusive’ definition. The Court it was submitted must have regard to the broader definition of ‘heavy vehicle’ as defined in the Road Safety Act 1986 (‘RSA’). Section 3 of the RSA defines ‘heavy vehicle’ by reference to The Heavy Vehicle National Law (Victoria), as a vehicle having a gross vehicle mass of more that 4.5 tonne.
Whilst it was immediately clear to the Court, from prior knowledge and life experience that the accused’s sedan vehicle did not weigh over 4.5 tonne, Mr Walsh Buckley submitted that ‘judicial knowledge’ could not be taken of this fact. It was not put in issue in the case and the informant was not cross examined.
Section 144 of the Evidence Act 2008 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.
From this section it is apparent that it is Parliament’s intention that proof is not required of matters that are local common knowledge or matters capable of verification by reference to a document the authority of which cannot reasonably be questioned. Matters of that kind can be acquired by the trier of fact ‘any way the judge sees fit”.
I was aware that up to 4.5 tonne was the maximum GVM of a vehicle that a person in Victoria[2] is permitted to drive on an ordinary car licence. That is a matter of law. I raised this with Mr Walsh Buckley during argument. It was clear to me that the vehicle depicted in the BWC vision was a standard sedan type vehicle capable of being driven on a standard car licence.
[2] So long as it cannot carry more than 12 people including the driver.
The common law has long recognised the ability of the trier of fact to inform itself of certain matters as it sees fit. The Victorian Supreme Court in Marshall v Wettenhall [1914] VLR 266 (23 March 1914) Per a’Beckett J, dealt with a case involving the apparent ‘failure’ of the prosecution to tender evidence of a published proclamation made with regard to ‘thistles’. The Magistrate hearing the case at first instance was aware that the proclamation had been made under relevant legislation, despite no evidence of the proclamation being led in the case. With regard to this, the Supreme Court held as follows:
What weighs with me is the manifest intention of the Act under which the proclamation was made, that the proclamation should inform all persons of the state of the law, and the apparent absurdity of refusing to permit a judicial officer to act on his[3] knowledge of the law so supposed to be made public. I hold that the Magistrates were entitled to act on their knowledge of the state of the law without having before them the proclamation which formed part of the law. I discharge the order nisi, with costs.
[3] ‘His’, a sign of the times in 1914 where there were no female judicial officers.
With respect to submission A by Mr Walsh-Buckley, I find that I am able to take judicial notice of the fact that the vehicle driven by the accused as sighted by me in the BWC vision weighed under 4.5 tonne and therefore was ‘other than a heavy vehicle’. Accordingly I reject Mr Walsh Buckley’s submission on this point.
Submission B
Mr Walsh-Buckley submits that the prosecution had not proven beyond reasonable doubt that that the applicable ‘speed limit signs’ complied with the relevant subordinate legislation being the Road Safety Road Rules 2017, as there was no evidence as to which of the applicable Road Rules (21 to 25) founds them. On this issue the evidence is as follows:
i.The informant by agreement tendered the preliminary brief ‘statement made by the informant’[4] It notes that ‘The length of Princes Highway to which the accused was travelling on is a 70km/h speed zone as per the erected and clearly visible speed signs which were facing and applicable to the accused and which complied with schedule 2 of the Road Safety Road Rules 2017.
[4] A document that used to be referred to as the ‘police summary’.
j.This evidence was reiterated by the Informant’s viva vice evidence.
19.Mr Walsh-Buckley submitted the evidence was insufficient to prove that the signs complied with law and failed to properly identify the relevant sign by reference to Road Rules 21 to 25 of the RSRR. He relied upon a decision of His Honour Justice Kyrou in DPP v Juchnowski [2008] VSC 181. In particular he submitted that Kyrou J at paragraph [20] held that “the [prosecution] witness must also give evidence of how the speed limit was determined by reference to the alternatives set out in rules 21 to 25.”
20.I’m of that view that Juchnowski does not stand for this proposition in any way. It is in fact a case which deals primarily with the conclusivity of proof of matters contained in a RSA section 83A certificate. An analysis of this case in which I note Mr Walsh-Buckley appeared, shows that paragraph 20 does not canvas any matter ‘held’ by Justice Kyrou. That paragraph in fact deals with the submissions of the learned prosecutor[5] regarding his interpretation of what the Court had said in Ciorra v Cole[6]. Paragraph 20 of Juchnowski is as follows:
[5] Mr Gyorffy
[6] Ciorra v Cole [2004] VSC 416 (20 October 2004) per Redlich J
Mr Gyorffy, who appeared before me for the DPP, accepted that Redlich J’s comments at paragraph 80 in Ciorra are an accurate statement of the general principle that applies to the proof of speeding offences under rule 20 of the Road Rules. He 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 rules 21 to 25. However, Mr Gyorffy submitted that the general principle in Ciorra does not apply to proceedings for an offence to which s 66 of the RS Act applies where s 81(2) is relied on as proof of a speed limit. He submitted that Ciorra did not deal with proof of a speed limit under s 81(2) and is not relevant to that mode of proof. He submitted that the words of s 81(2) are clear and that the effect of the provision is that evidence of a speed limit which meets the requirements of s 81(2) is prima facie proof of that speed limit.
21.Indeed, in my view Ciorra v Cole[7], itself, a decision of His Honour Justice Redlich, does not stand for that proposition. This was a case primarily about the validity or particulars in a charge and whether it could be amended. The charge in this case did not nominate a speed zone at all. The case involved an analysis as to whether that could be inferred from the charge. Redlich J. held that the charge was not invalid by reason of the failure to nominate a speed zone in the charge but noted that the evidence in the case must extend to nominating one. The Court at paragraphs 78 and 80 said the following:
78. The essence of an offence under Road Rule 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 Road Rules 21 to 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 kilometre per hour speed limit signs applied. The defence would be entitled to particulars of such a matter if it was not referred to in the charge.
…
80. I do not accept the contention of the appellant that it was necessary that the charge specify that 100 kilometre per hour 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.[7] Ibid
Whilst Redlich J. in this case canvasses how a relevant speed limit is determined by reference to RR 21 to 25, he does not hold at any stage or even infer that “The witness must also give evidence of how the speed limit was determined, by reference to the alternatives set out in rules 21 to 25”. With the greatest respect to Mr Gyorffy, in his submission to Kyrou J as set out on paragraph 20 of Juchnowski[8], he, in my view, misinterprets the position as he understood it from Ciorra.[9]
[8] DPP v Juchnowski [2008] VSC 18
[9] Ciorra v Cole [2004] VSC 416 (20 October 2004)
Redlich J had noted at paragraph 12 of Ciorra that the informant gave evidence (in the Magistrates Court) and testified inter alia that he had observed the appellant travelling at approximately 145 kilometres per hour on the freeway in an area where 100 kilometre per hour speed signs applied.
Redlich J dismissed the ground of appeal dealing with the essential elements of the charge, in particular the purported failure to use the words ‘speed limit’. Whilst His Honour within paragraph 78 as set out above, did say “The speed limit which applies to the driver will depend upon which of Road Rules 21 to 25 apply” this was in the context of dealing with the argument that “An essential factual ingredient of the offence is the speed limit which the driver is said to have exceeded”.
So one of the propositions for which Ciorra stands is that the relevant speed limit is an essential factual ingredient of the offence that must be proven by the prosecution[10], and necessarily as a matter of regulation, that speed limit will be determined by which Road Rule between 21 and 25 applies. The case in my view however, does not stand for the proposition that the prosecution must in evidence nominate the particular road rule applicable as the legislative foundation for the relevant speed limit.
[10] Albeit not required to be included as part of the charge.
Redlich J. ultimately upheld the defence appeal on point concerning amendment and service of the amended charge. He expressed no concern that the speed limit in this case had been ‘proven’ by the Informant’s evidence,[11] that he detected the appellant travelling at approximately 145 kilometres per hour on the freeway in an area where 100 kilometre per hour speed signs applied. That is, the Court made no adverse comment that the speed limit in the case was established by reference to the 100 per hour speed signs.
[11] In the magistrates Court at first hearing.
In the present case the evidence as referred to at paragraph 18 above, was that the relevant speed zone was 70 Km/h as per the erected and clearly visible speed signs which were facing and applicable to the accused and which complied with Schedule 2 of the RSRR 2017. I am satisfied that evidence proves that the relevant speed zone was 70 km/h and that the relevant speed signs complied with the regulations. I do not accept that the prosecution must call evidence of the basis for the speed zone by reference to Road Rules 21 to 25.
I note in any event that Schedule 2 of the RSRR 2017 includes an image of the ‘standard sign’ known as a ‘speed-limit sign’ and refers to rule 21.
In those circumstances I am able reject Mr Walsh-Buckley’s second submission (B) that the prosecution has failed to prove the pleaded element being the speed limit sign.
Submission C
Mr Walsh-Buckley’s third Submission (C) was that the prosecution had not proven beyond reasonable doubt that the in-car speed measuring device being a ‘Stalker Dual DSR’ was used in accordance with the relevant regulations being the Road Safety (General) Regulations 2019 (“RSGR’). (The informant had in fact invoked compliance with Road Safety (General) Regulations 2009 unaware that those regulations had expired and been replaced by the 2019 version only five days before the offence date.)
This was an interesting circumstance. The RSGR 2009 were revoked on the 27th of September 2019 and the RSGR 2019 commenced operation that same day. This is five days before the alleged offence date on 2nd October 2019. The revocation of regulations happens automatically on the 10th anniversary of the making of the statutory rule. This is mandated by section 5 of the Subordinate Legislation Act 1994.
There is no authority located in my researches or indeed submitted by Mr Walsh-Buckley that requires evidence nominating the regulation under which the device was correctly tested, sealed and used. To obtain the conclusivity of proof afforded by Section 79[12] of the RSA, the device employed must be a prescribed device, tested sealed and used in the prescribed manner. The provisions of Section 79 are as follows:
(1) If in any criminal proceedings the speed at which a motor vehicle or trailer travelled on any occasion is relevant, evidence of the speed of the motor vehicle or trailer as indicated or determined on that occasion by a prescribed road safety camera or prescribed speed detector when tested, sealed and used in the prescribed manner is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the speed of the motor vehicle or trailer on that occasion.
[12] In the absence of evidence to the contrary
In this case the testing and sealing of the device was not in issue. Exhibit E confirms that the Stalker Dual DSR (no. MR423S) was tested and sealed in accordance with the relevant regulations on the 15th August 2019, a date within 12 months of its use in this case as required[13]. Further the Stalker Dual DSR is a prescribed device as referred to in regulation 46 of the RSGR 2019. This is not a case in which any mis-description of the device is alleged. Accordingly, those case referred to by Mr Walsh-Buckley that deal with this issue in his written submissions are of no assistance.
[13] See Road Safety (General) Regulations 88/2019, regulation 46 (e) and (f)
So, what must be established by evidence is that the prescribed device used here being the Stalker Dual DSR was used in the prescribed manner[14]. The prescribed manner is set out in r46 of RSGR 2019. The nomination of the relevant regulation, (in this case regulation 46 RSGR 2019) is not required by legislation or higher court authority. It seems that the Informant made reference to the regulation, in this case the revoked provision, as a means of ‘catch all’ or short cut should he miss giving evidence of some or all of the requirements of ‘use in the prescribed manner’.
[14] Rodger v Wojcik [2014] VSC 308
Have regard to and comparing both versions of regulation 46 in the revoked RSGR 2009 and the current RSGR 2019, it is apparent that there are no material differences as to use requirements. Accordingly, as I indicated to Mr Walsh-Buckley during argument, it seems that a person who acts in compliance with the requirements of prescribed use as set out on the 2009 version, necessarily also complies with the requirements of the 2019 version. None the less the informant in his evidence in chief, did not simply rely on reference to the now revoked RSGR 2009. He testified that he complied with the standard testing protocol. He in fact gave evidence of doing those things that the r46 of RSGR 2019 requires. Namely that he ensured before use that a reading of 888 was displayed on the target speed display[15] and he noted the doppler audio signal as being clearly audible and indicating normal operation at the time of speed detection.[16] Further when he activated the device the antenna was set in the direction of the motor vehicle within his forward vision and he read the display on the target digital speed display.[17]
[15]RSGR r46 (a)(ii)
[16] RSGR r46(b)
[17] RSGR r46(d), (see also the photograph of the target digital speed display indicating the detected speed of the Accused’s vehicle was130 Km/h, which is exhibit c in this case.)
In those circumstances, despite the Informant’s error in referring to the then recently revoked 2009 regulations, I’m satisfied he used the prescribed speed measuring device in the manner prescribed by regulation 46 RSGR 2019.
Accordingly, I reject Mr Walsh-Buckley’s third submission (C).
Further, since the hearing of this matter, his Honour Justice Beale has delivered judgment in Fox[18] where Mr Walsh Buckley again appeared. Whilst his Honour in that case deals with time and location in detail, he only tangentially comments upon the issues raised here in Mr Walsh Buckley’s submissions (A) and (B) as to the type of vehicle and the basis of the speed limit. As to those his Honour at paragraph 38 says this:
Below, the Respondent advanced two other arguments as to why the charge was invalid, neither of which were accepted by the Magistrate in dismissing the charge. Consequently, I am not obliged to deal with them. The Respondent, however, submitted that it would be helpful if I discussed the merits of these alternative arguments, namely, that the charge should have include the type of vehicle and the basis of the speed limit of 100kph. All I will say is that neither argument seems to me to be supported by the authorities.
[18] DPP v Mathew Fox [2021 VSC 226 on 5 May 2021
I am fortified in my views as to Mr Walsh-Buckley’s submissions (A) and (B) by his Honour’s comments in Fox.
That being the case, having rejected the three heads of argument put by Mr Walsh-Buckley, I’m satisfied beyond reasonable doubt that the single charge against the accused of exceeding the speed limit contrary to RR20 of the RSRR 2017 is proven.
Magistrate T. Burns
Dandenong Magistrates Court
17th of May 2021
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