Road Transport Authority v Candy
[2025] ACTMC 5
•24 February 2025
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Road Transport Authority v Candy |
Citation: | [2025] ACTMC 5 |
Hearing Dates: | 15 November 2024 |
Decision Date: | 24 February 2025 |
Before: | Magistrate Temby |
Decision: | The Defendant is not guilty of the offence charged |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – exceed speed limit – validity, effect and admissibility of evidentiary certificate issued pursuant to s 25 of the Road Transport (Safety and Traffic Management) Act 1999 |
Legislation Cited: | Road Transport (Road Rules) Regulation 2017, s 13, 20 Road Transport (Safety and Traffic Management) Act 1999, s 16, 24(1), 24(2)(b), 25, 25(4) - (5), 25(9), 33 Road Transport (General) Act 1999, s 16, 16(2) -(3), 17(1)-(3), 56, 72 Road Transport (Safety and Traffic Management) Regulation 2017, s 13 Legislation Act 200,1 s 40,104, 242 Public Sector Management Act 1999, s 21, 21(5), 21(7) Australian Capital Territory (Self-Government) Act 1988 (Cth), s37, 43, 43(2), Schedule 4 |
Cases Cited: | Moore v R [2016] NSWCCA 185 Thomas v The Queen (1960) 102 CLR 584 Gibbons v Perkins [2021] ACTSC 254 Pappas v Mirenda [2021] ACTSC 329 Hijazi v Orr (1997) 26 MVR 26 Clark v Bluett [2016] ACTSC 312 Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory (No 2) [2018] ACTCA 43 Lewis v Chief Executive Department of Justice and Community Safety & Ors [2013] ACTSC 198 |
Text Cited: | Administrative Arrangements 2016 (No 3), Schedule 2, Part 2.4, s 5 Public Sector Management (Head of Access Canberra Functions) Declaration 2016 Road Transport Legislation (Access Canberra) Delegation 2017 (No 1) Administrative Arrangements 2016 (No 3), Schedule 2, Part 2.4 Road Transport (Safety and Traffic Management) Traffic Offence Detection Device Approval 2023 (No 1) The Constitution of the Australian Capital Territory (Federation Press, 2021), Mossop J |
Parties: | Breeze Mojel (Informant) Chantelle Candy ( Defendant) |
Representation: | Solicitors Director of Public Prosecutions (Defendant self-represented) |
File Numbers: | CC 40715/ 2024 |
MAGISTRATE TEMBY:
Facts
1․On 31 December 2023, the Defendant and her partner drove their cars along Ginninderra Drive, through the intersection with Aikman Drive in Belconnen (the Intersection). Ginninderra Drive is a road in the Australian Capital Territory. The speed limit on Ginninderra Drive through the Intersection was (and remains) 80 km per hour.
2․A speed measurement device recorded the speed of the Defendant’s car as it drove through the Intersection as being 98 km per hour. As a result, the Defendant was issued with a traffic infringement notice. The Defendant disputed liability and she was subsequently charged with exceeding the speed limit, contrary to s 20 of the Road Transport (Road Rules) Regulation 2017 (Road Rules Regulation).
What is in issue?
The parties’ positions
3․The Defendant does not dispute that she was the driver of a motor vehicle on a road. Accordingly, the first two elements of the offence with which she is charged are not in issue. The Defendant disputes the allegation that she exceeded the speed limit that applied to Ginninderra Drive at the Intersection.
4․The Defendant says that, despite the recording of the speed measurement device, she was in fact travelling at or below 80 km per hour. She gave evidence to that effect, noting that she is very conscious of the speed at which she drives and knew that double demerits were applicable to driving offences at the relevant time.
5․The Defendant and her partner also gave evidence that the Defendant was driving behind her partner at the time, maintaining a constant distance behind him. The Defendant’s partner said that he did not receive a traffic infringement notice, and was not prosecuted, for speeding through the Intersection on 31 December 2023.
6․The Prosecution submits that the Court would have difficulty accepting that the Defendant or her partner could know, after the event, how fast they were driving at the relevant time. More fundamentally, the Prosecution says that the Court should accept a certificate issued by the Informant under s 25 of the Road Transport (Safety and Traffic Management) Act 1999 (Safety & Traffic Management Act) (the s 25 Certificate) as conclusive proof of the speed at which the Defendant was travelling.
7․The Defendant submits that the s 25 Certificate is invalid and should not be admitted into evidence. Specifically, the Defendant submits that:
(a)the relevant speed measurement device was not an approved traffic offence device;
(b)the testing of the device did not comply with the Safety & Traffic Management Act; and
(c)the Informant did not have authority to issue a certificate under s 25 of the Safety & Traffic Management Act (a s 25 certificate) in any event.
8․The admissibility and effect of the s 25 Certificate are thus key issues in these proceedings.
Decision making principles
9․There are a number of decision-making principles that are relevant to the determination of criminal proceedings.
Onus and standard of proof
10․The Prosecution of course bears the onus of proving the guilt of the Defendant. The Defendant does not have to prove that she did not commit the offence with which she is charged. The standard of proof the Prosecution must meet is proof beyond reasonable doubt and the Defendant cannot be found guilty unless the evidence which I accept satisfies me beyond reasonable doubt of her guilt. If I am satisfied that there may be an explanation consistent with the innocence of the Defendant, or I am unsure of where the truth lies, then I must find that the charge has not been proved to the standard of proof required by law.
11․In this respect, I note that proof of a matter beyond reasonable doubt requires the Prosecution to exclude all reasonable hypotheses or any reasonable possibility inconsistent with the Prosecution case or with the Defendant’s innocence. That is because a reasonable doubt will necessarily arise where any hypothesis or possibility consistent with innocence is reasonably open on the evidence.
Reliability of witnesses
12․I must determine whether each of the witnesses is a reliable witness. That is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence as proved. I can accept part of the witness’s evidence and reject part of that evidence or accept or reject it all. The law does not require me to give all evidence the same weight.
Determination of facts in accordance with the evidence
13․I must determine the facts in accordance with the evidence, considering it logically and rationally, without acting capriciously or irrationally. I must not let emotion enter into the decision-making process. I must bring an open and unbiased mind to the evidence but I may use my common sense and experience in assessing it. Both the Prosecution and the Defendant are entitled to my verdict free of partiality, prejudice, favour or ill-will.
14․I must, of course, deliver my decision according to the evidence.
Drawing of inferences
15․I may draw reasonable inferences from the facts that I find are established. I must consider any possible inference to ensure that it is a justifiable inference, and I must not draw an inference from the direct evidence unless it is a rational inference in all the circumstances. It is permissible for the court to rely on an inference, of which the court is satisfied should be drawn beyond reasonable doubt, as proof of an element of an offence.
Defendant’s evidence
16․The Defendant gave evidence at the hearing. She was not required to do so. She could have elected not to give evidence. She thereby became a witness in the hearing and I must approach her evidence in the same way that I approach the evidence of any other witness. Her evidence is no better or worse, because she is the Defendant, than the evidence of any other witness in the hearing and must be considered in the same way as the evidence of other witnesses. However, by giving evidence, the Defendant did not assume any onus to prove anything at the hearing.
17․I remind myself that a preference for the Prosecution’s evidence is not enough. I must not find the Defendant guilty unless I am satisfied beyond reasonable doubt of the truth of that evidence. Similarly, even if the evidence relied upon by the Defendant is not positively believed, I must not find the Defendant guilty if that evidence gives rise to a reasonable doubt about the Defendant’s guilt.
18․In short:
(a)if I believe the Defendant’s evidence, or if I think it might be true, I must find her not guilty;
(b)if I do not believe the account relied on by the Defendant, I should put it to one side. The question remaining is, has the Prosecution, on the basis of the evidence that I do accept, proved the Defendant’s guilt beyond reasonable doubt.
19․For the avoidance of doubt, I note that this direction does not require me to first consider the Defendant’s evidence in isolation and then, only if I reject that evidence, to consider the Prosecution’s evidence. I am required to consider the whole of the evidence before making my findings.
Assessment of credibility of witnesses’ evidence
20․As noted earlier in these reasons, the Defendant and her partner both gave evidence, the latter through the tender of an affidavit of evidence. While the Prosecution submitted that the Court would have difficulty accepting the evidence of the Defendant’s partner that he could recall how fast he was driving at the relevant time, the Prosecution did not cross-examine the Defendant’s partner on that evidence, leaving it unchallenged.
21․The reservations that I have in relation to the evidence of the Defendant and her partner principally arise from contradictory information that is contained in the s 25 Certificate. However, for the reasons which are set out later in these reasons, I have ruled that the s 25 Certificate is inadmissible. As I have also found, even if the s 25 Certificate had been admissible, I would have concluded that the evidence of the Defendant and her partner might be true.
22․Mr Ee Chiang Sim, a Senior Calibration Engineer with SGS Australia Pty Ltd also gave evidence. Mr Sim tested the speed measurement device that captured the speed of the Defendant’s car through the Intersection on the relevant date.
23․While the Defendant did cross-examine Mr Sim, she did not challenge the credibility of any of Mr Sim’s evidence. There is no reason to question the credibility of Mr Sim’s evidence and I accept that it is reliable.
Summary of decision
24․For the reasons which follow, I find the Defendant not guilty of the offence charged because the Informant had no power to issue the s 25 Certificate. It is therefore inadmissible in the proceeding. Without the s 25 Certificate, there is no evidence that the Defendant sped through the Intersection on 31 December 2023.
25․Even if the s 25 Certificate was admissible, I would have found that it is possible that the Defendant did not speed through the Intersection. That is because it is possible that the Defendant’s partner was not speeding when he drove through the Intersection and the uncontested evidence of both he and the Defendant was that the Defendant was travelling at a constant distance behind him (and, therefore, at a consistent speed) through the Intersection.
The road transport legislation certificates tendered by the Prosecution
26․The Prosecution sought to tender three certificates purportedly issued by the Informant under the road transport legislation, namely:
(a)a certificate issued under s 72 of the Road Transport (General) Act 1999 (the General Act), certifying that the Defendant was the registered operator of the car which she drove through the Intersection;
(b)a certificate issued under s 56 of the General Act, setting out the procedural history of the matter prior to proceedings being commenced; and
(c)the s 25 Certificate.
27․The Defendant objected to those certificates being admitted into evidence.
28․It is not necessary to determine the Defendant’s objection in relation to the certificates issued under ss 56 and 72 of the General Act. The Defendant admits that she was driving her car through the Intersection at the relevant time and admits that she disputed liability for the offence identified in the infringement notice (which is not now relevant in any event, given that criminal proceedings were commenced).
29․I have considered the admissibility and effect of the s 25 Certificate below. As I have noted earlier in these reasons, while the Defendant admits that she drove through the Intersection at the relevant time, and admits that the applicable speed limit was 80 km per hour, she disputes the accuracy of the speed measurement produced by the device.
The effect of a certificate issued under s 25 of the Safety & Traffic Management Act
A s 25 certificate applies to a proceeding involving an alleged contravention of s 20 of the Road Rules Regulation
30․Section 25 of the Safety & Traffic Management Act provides that it applies to a proceeding against a person for an offence against that Act involving a vehicle. While the alleged offence raised in these proceedings is an offence contrary to s 20 of the Road Rules Regulation, it was accepted in Pappas v Mirenda [2021] ACTSC 329 that a s 25 certificate provided evidence of the matters stated in the certificate for the purposes of proceedings involving an alleged contravention of s 20 of the Road Rules Regulation.
31․I note that s 104 of the Legislation Act 2001 (the Legislation Act) states that a reference that is made in legislation to a law includes a reference to the statutory instruments made or in force under the law. Relevantly, the Road Rules Regulation was made under s 33 of the Safety & Traffic Management Act. Accordingly, the reference in s 25 of the Safety & Traffic Management Act to an offence against that Act includes offences against the Road Rules Regulation and s 25 of the Safety & Traffic Management Act therefore applies to these proceedings.
The effect of a s 25 certificate
32․The effect of s 25 of the Safety & Traffic Management Act, relevantly for present purposes, is that a certificate that appears to be signed by the Road Transport Authority (RTA) is evidence of the following matters in relation to a traffic offence detection device:
(a)that a stated image, or series of images, is an accurate copy of an image, or series of images, taken by the device; and
(b)a measurement of speed obtained by the use of the device (if the device is a speed measuring device).
33․Subsections 25(4) and (5) of the Safety & Traffic Management Act state that an image (or series of images) certified in a certificate is evidence of everything indicated on, or shown by, the image, including that:
(a)the vehicle shown in the image was being driven when and where the image was taken by the device;
(b)the speed limit indicated applied to the driver of the vehicle for the length of road where the driver was driving at the relevant time and place; and
(c)the driver was driving at the indicated speed at the relevant time and place.
34․While the Prosecution submitted that the matters set out in the s 25 Certificate are conclusive evidence of the matters set out in it, I do not accept that submission.
35․Section 25 of the Safety & Traffic Management Act provides that a certificate issued under that section is ‘evidence’ of the matters contained in it, not proof. Further, subsection 25(9) states that the section ‘does not limit evidence that can be presented apart from this section’.
36․That wording may be contrasted with, for example, ss 56 and 72 of the General Act (under which the other certificates upon which the Prosecution relied were issued), which provide that a court ‘must accept a certificate given under [each of those sections] as proof of the matters stated in it if there is no evidence to the contrary’.
37․As Higgins J said in Hijazi v Orr (1997) 26 MVR 266, at 271, commenting in relation to the effect of a certificate of a similar kind that could be issued under the Motor Traffic Act 1936:
To say that the statement in the certificate is “evidence” means that it is prima facie evidence of the fact stated. That is, it is sufficient evidence for a court to find that fact proved. But the court is not obliged so to find, even in the absence of acceptable evidence of some specific malfunction, see Perkins v Pohla-Murray (1983) 51 ACTR 3; 1 MVR 165. The court must still be satisfied beyond reasonable doubt on all the evidence that the offence has been proved. Of course, in the absence of some relevant contradictory evidence, it would be unlikely that a court would not be so satisfied. It depends on the nature and quality of the evidence adduced to contradict the speed reading, while recognising that the prosecution bears the onus of proving the offence beyond reasonable doubt …
It should be observed that evidence given by certificate has no inherent weight. To raise a doubt, it is not necessary for a defendant to prove some specific failure of the instrument or its operation …
38․I therefore proceed on the basis that the evidence that the s 25 Certificate provides for is prima facie evidence only, and is to be weighed against the other evidence that was received at the hearing, rather than being conclusive proof of the matters set out in the certificate.
The s 25 Certificate
39․The images attached to the s 25 Certificate relevantly indicate that:
(a)the images were taken at 1.27pm on 31 December 2023;
(b)they were taken of the Intersection;
(c)they captured a car driving at 98 km per hour through the Intersection; and
(d)the speed limit at the Intersection was 80 km per hour.
40․As noted earlier in these reasons, the Defendant admits that the car that is captured in the images is her car and that she was driving the car.
41․Consistently with the images attached to the certificate, the s 25 Certificate itself states (amongst other things) that:
(a)the speed limit at the Intersection was 80 km per hour; and
(b)the Defendant’s car was captured to be travelling through the Intersection at 98 km per hour.
42․Accordingly, the s 25 Certificate, if admissible, is prima facie evidence that the Defendant drove through the Intersection at 98 km per hour at 1.27pm on 31 December 2023, being 18 km per hour over the applicable speed limit.
43․The s 25 Certificate also identified the relevant speed measurement device, noting that it was an approved device which had been tested in accordance with the Road Transport (Safety and Traffic Management) Regulation 2017 (Safety & Traffic Management Regulation) and found to meet the manufacturer’s specifications, with all readings for speeds of 100 km per hour and under being accurate within a tolerance of 2 km per hour.
Admissibility of the s 25 Certificate
44․The Defendant submits that the Informant did not have authority to issue a s 25 certificate and it is therefore inadmissible in the proceeding.
45․As the Defendant identifies, and as I have noted earlier in these reasons, for a s 25 certificate to have the evidentiary effect provided for by s 25, it must be signed (or at least appear to be signed) by the RTA (or a police officer, although that alternative is not relevant here). The s 25 Certificate was signed by the Informant, purportedly as a delegate of the RTA.
The RTA’s power to issue a s 25 certificate could be exercised by others
46․The RTA is created by s 16 of the General Act. Subsections 16(2) and (3) state that:
(2) The director-general is the road transport authority.
(3) For this section, in relation to the exercise of a function under a provision of the road transport legislation [which includes the Safety & Traffic Management Act], the director-generalis the director-general of the administrative unit responsible for the provision.
47․Subsection 17(1) of the General Act provides (and has at all relevant times provided) that the RTA can delegate the authority’s functions under the road transport legislation to the chief police officer, a public employee or a person prescribed by regulation. However, the directors-general for the relevant administrative units (which have changed over time) have not exercised this power in relation to s 25 of the Safety & Traffic Management Act.
48․Section 21 of the Public Sector Management Act 1999 (PSM Act) provides (and provided) an alternative way in which the RTA’s power to issue a s 25 certificate could be exercised by someone else. This power was relied on by the Chief Minister when he made the Public Sector Management (Head of Access Canberra Functions) Declaration 2016 (Chief Minister’s Declaration).
49․Under s 21 of the PSM Act, as in force on 20 September 2016, the Chief Minister could declare that a function given to a director-general under a territory law dealing with a relevant matter could be exercised by the head of Access Canberra (a declared function).
50․In written submissions filed by the Prosecution, the Prosecution submitted that s 21 of the PSM Act gave the power of declaration to the ‘responsible Minister’, however that is how s 21 of the current version of the Act is worded. The relevant version of the Act is the version in force at the time the power was exercised by the Chief Minister when he made the Chief Minister’s Declaration, being 20 September 2016. Having said that, there is no material difference between the two versions as the ‘responsible Minister’ for the purposes of the current version of the legislation is the Chief Minister, as the Minister responsible for Access Canberra.
51․The relevant version was published on 1 September 2016 and was in force between 1 September 2016 and 8 March 2017. It stated:
(1)The Chief Minister may declare that a function given to a director‑general under a territory law dealing with a relevant matter may be exercised by the head of Access Canberra (a declared function).
Note1 Function includes authority, duty and power (see Legislation Act, dict, pt 1).
Note 2A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity).
(2) A declaration is a notifiable instrument.
NoteA notifiable instrument must be notified under the Legislation Act.
(3)The head of Access Canberra may exercise a declared function.
(4)The head of Access Canberra may delegate a declared function to a public servant or another person.
NoteFor the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.
(5)However, the head of Access Canberra may only delegate a declared function to the extent permitted by other territory laws.
Example—extent permitted
A declaration is made in relation to a function given to the director-general under the XYZ Act. That Act states that the director‑general may only delegate the function to an employee. The head of Access Canberra may also only delegate the function to an employee.
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(6)Nothing in this section limits the exercise of a declared function by the director-general given the function.
(7)Anything done in the exercise of a declared function is not invalid only because of a defect or irregularity in, or in relation to, a declaration.
(8)In this section:
Access Canberra means the business unit in the administrative unit administered by the Chief Minister known as Access Canberra.
head, of Access Canberra, means the person occupying the position (however described) of head of Access Canberra.
relevant matter means a matter mentioned in an administrative arrangement—
(a)responsibility for which is allocated to the Chief Minister; and
(b)relating to Access Canberra.
52․As may be seen, s 21(4) permitted the head of Access Canberra to delegate a declared function to a public servant or another person. While the power of sub-delegation was only exercisable to the extent permitted by other territory laws (s 21(5)), that does not present an issue in the present case, given that ss 17(2) and (3) of the General Act also permitted delegation and sub-delegation to a public employee (that is, a public servant).
Relevant instruments of declaration and delegation
53․The Chief Minister’s Declaration relevantly states that a function provided for in s 25 of the Safety & Traffic Management Act may be exercised by the head of Access Canberra. On 8 August 2017, the Road Transport Legislation (Access Canberra) Delegation 2017 (No 1) (Access Canberra Delegation) was made by the Acting Deputy Director-General of Access Canberra, David Snowden, relying on the authority given by the Chief Minister’s Declaration. At that time, the Acting Deputy Director-General of Access Canberra (Mr Snowden) was the head of Access Canberra (see Note 4 to the Instrument). Relevantly, the Access Canberra Delegation delegated the function provided for in s 25 of the Safety & Traffic Management Act to Position Number 13861, being the Informant’s position number.
54․I note that the Defendant raises an issue that particular instruments of delegation that she found identified Position Number 13861 as being referrable to the position description ‘Assistant Managers Infringements’. This appears to be the case in relation to the Access Canberra Delegation.
55․Despite this, I note that the functions set out in the Access Canberra Delegation were delegated ‘to the person occupying or performing the duties of the position specified in column 3 of schedule 1’. Column 3 of schedule 1 identifies the relevant position number, not the position description.
56․The position description is contained in column 4, the relevance of which is not explained by the Instrument. Column 4 thus appears to contain irrelevant information which does not affect the validity of the delegation of power to the persons occupying the position numbers identified in column 3 from time to time.
57․As the Informant occupied Position Number 13861 at the time of issuing the s 25 Certificate, she had authority to do so if the Access Canberra Delegation was valid.
58․The Chief Minister’s Declaration and the Access Canberra Delegation are both contained in the electronic ACT Legislation Register and are described as ‘Authorised by the ACT Parliamentary Counsel’. I am satisfied that they are the authorised versions of those instruments.
59․The Access Canberra Delegation remains current. While the Chief Minister’s Declaration was repealed and replaced by the Public Sector Management (Head of Access Canberra Functions) Declaration 2017 (No 1), that Instrument was made on 29 August 2017, which was after the Access Canberra Delegation was made. The Public Sector Management (Head of Access Canberra Functions) Declaration 2017 (No 1) had no effect in relation to decisions made in reliance on the Chief Minister’s Declaration.
Instruments are relevantly invalid
60․As noted above, the power to issue a certificate is exercisable by the RTA, which is statutorily defined to be the director-general of the administrative unit responsible for s 25 of the Safety & Traffic Management Act. I have assumed that it does not matter, for the purposes of s 21 of the PSM Act, that the relevant director-general’s power to exercise the function in s 25 of the Safety & Traffic Management Act thus arises by virtue of the fact that they are the RTA for that purpose, rather than being directly given to the director-general.
61․It is not necessary to decide this issue as I have found that, to the extent that the Chief Minister’s Declaration purported to declare that the function in s 25 of the Safety & Traffic Management Act could be exercised by the head of Access Canberra, it is invalid regardless.
62․Under s 21 of the PSM Act, the Chief Minister could declare that a function given to a director-general under a law dealing with a ‘relevant matter’ be exercisable by the head of Access Canberra. A ‘relevant matter’ was defined to mean a matter mentioned in an administrative arrangement, responsibility for which was allocated to the Chief Minister and relating to Access Canberra.
63․Assuming for present purposes that the issuing of a s 25 certificate relates to Access Canberra, I am nevertheless not satisfied that that was a matter for which the Chief Minister was responsible. Under Schedule 2, Part 2.4 of the Administrative Arrangements 2016 (No 3), the Minister for Road Safety was responsible for s 25 of the Safety & Traffic Management Act, not the Chief Minister.
64․Accordingly, the Chief Minister did not have the power to declare that the issuing of a s 25 certificate was a function that could be exercised by the head of Access Canberra. To the extent that the Chief Minister’s Declaration purported to do so it was invalid. That, in turn, means that the purported delegation of authority from the head of Access Canberra to the position numbers identified in the Access Canberra Delegation (including to the Informant’s position number) is also invalid.
Prosecution’s submissions against invalidity
Submission that it does not matter that the Minister for Road Safety was responsible for the Safety & Traffic Management Act
65․The Prosecution submitted (at paragraph 23 of the Prosecution’s written submissions) that:
… it is immaterial that the Minister for Road Safety was the minister with responsibility for the [Safety & Traffic Management Act] under the relevant Administrative Arrangement. The Chief Minister was the responsible Minister for Access Canberra at the time and the Chief Minister is for all intents and purposes, the Executive. Further, Ministers are authorised to act on behalf of either the Chief Minister or on behalf of another Minister.
66․I do not accept that any of these arguments have merit.
67․Firstly, having responsibility for Access Canberra did not mean that the Chief Minister could declare that any function relating to Access Canberra could be exercised by the head of Access Canberra. The functions that could be the subject of a declaration were limited to those matters mentioned in an administrative arrangement for which the Chief Minister had responsibility. As I have noted, under Administrative Arrangements 2016 (No 3), the Minister for Road Safety was responsible for s 25 of the Safety & Traffic Management Act, not the Chief Minister.
68․Secondly, I accept that the Executive is responsible for a wide range of matters under s 37 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (Self-Government Act), including the responsibility of governing the Territory with respect to the matters specified in Schedule 4 to that Act. As the Prosecution notes, this includes Law and Order, Public Safety and the Public Service.
69․However, the Executive cannot exercise statutory powers which the legislature has given to particular Ministers. As Justice Mossop noted, writing extra-judicially in The Constitution of the Australian Capital Territory (Federation Press, 2021), at page 155:
… it is always open to the legislature to specify that executive power under an enactment is to be exercised by a particular person and much legislation invests it in the allocated Minister..
70․The ‘allocated Minister’ is a reference to the allocation of responsibility for a particular matter to a Minister under s 43 of the Self-Government Act. The Administrative Arrangements 2016 (No 3), which allocated responsibility for the relevant part of the Safety & Traffic Management Act to the Minister for Road Safety, was made under s 43 of the Self-Government Act.
71․As Justice Mossop also noted, at pages 155 – 156, while ‘the balance between the collective decision-making by the Executive and decision making by individual Ministers is not clear’, one thing that is clear is that ‘the allocated Minister must act where an enactment expressly empowers the Minister to act … Examples are the many statutory instruments which vest power to make decisions under them in “the Minister”’.
72․Thirdly, I accept that Ministers were authorised to act on behalf of other Ministers, including on the Chief Minister’s behalf (section 5 of the Administrative Arrangements 2016 (No 3), made under s 43(2) of the Self-Government Act). However, the Chief Minister did not make the Chief Minister’s Declaration on behalf of the Minister for Road Safety. He made it in his capacity as the Chief Minister. Indeed, he was required to do so as the power in s 21 of the PSM Act was only exercisable by the Chief Minister.
Submission as to validity of statutory instruments and onus of proof
73․The Prosecution relies on s 40 of the Legislation Act, which provides for a presumption of validity of statutory instruments. The Prosecution submits that the Defendant has not discharged the onus that rested on her to prove that the Informant had no authority to issue the s 25 Certificate.
74․I disagree. The consequence of my finding that the Chief Minister’s Declaration and the Access Canberra Delegation are, with respect to the power to issue a s 25 certificate, invalid, is that the Informant had no power to issue the s 25 Certificate (Clark v Bluett [2016] ACTSC 312; Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory (No 2) [2018] ACTCA 43 (Burridge)).
Submission that absence of power is cured by s 242 of the Legislation Act and s 21(7) of the PSM Act
75․Finally, the Prosecution submits that, even if the Chief Minister did not have the power to declare that the head of Access Canberra could exercise the power in s 25 of the Safety & Traffic Management Act, the action of the Informant in issuing the s 25 Certificate is nevertheless saved by the operation of s 242 of the Legislation Act and s 21(7) of the PSM Act.
76․Section 242 of the Legislation Act states:
(1) A delegation, or anything done under a delegation, is not invalid only because of a defect or irregularity in or in relation to the delegation.
(2) Anything done by or in relation to the delegate while the delegate purports to exercise the delegation is not invalid only because—
(a) the delegation had been amended or revoked; or
(b) the occasion for the delegate to exercise the delegation had not arisen or had ended.77․Subsection 21(7) of the PSM Act is, in relation to a declaration made under s 21 of the PSM, to similar effect as s 242 of the Legislation Act is in relation to delegations. As set out earlier in these reasons, s 21(7) states (as it stated at the time the Chief Minister’s Declaration was made):
(7)Anything done in the exercise of a declared function is not invalid only because of a defect or irregularity in, or in relation to, a declaration.
78․In my view, the Chief Minister’s Declaration did not involve a delegation as it did not give the head of Access Canberra the authority to exercise a power otherwise exercisable by the Chief Minister. The application of s 21(7) of the PSM Act needs to be considered in relation the to Chief Minister’s Declaration.
79․The application of s 242 of the Legislation Act needs to be considered in relation to the Access Canberra Delegation and the Informant’s reliance on that delegation in issuing the s 25 Certificate.
80․Having said that, given the similarity of wording used in the two provisions, there is little difference in analysis in terms of their application.
81․As the Prosecution notes in its submissions, s 242 of the Legislation Act was introduced by the Statute Law Amendment Act 2001 (No 2). That Act included an explanatory note which stated, in relation to s 242:
This section is intended to protect the validity of things done under a delegation if it later appears that the delegation was ineffective …
82․In Lewis v Chief Executive Department of Justice and Community Safety & Ors [2013] ACTSC 198 (Lewis), Refshauge J made the following observations about s 242 of the Legislation Act. Given the similarity of language employed in s 21(7) of the PSM Act, and the obvious similarity in purpose, the same observations can be made in relation to that provision. His Honour said, at [111] to [113]:
111. These provisions appear to be a legislative expression of at least an aspect of what is known as the de facto officer’s doctrine, namely that “[t]he acts of a de facto public officer done in apparent execution of his office cannot be challenged on the grounds that he has no title to the office” as stated by McHugh JA in G J Coles & Co Ltd v Retail Trade Industrial Tribunal(1986) 7 NSWLR 503 at 525, and approved by the High Court in Cassell v The Queen (2000) 201 CLR 189 at 193; [19].
112. The limits of the doctrine are said not to be clear. See E Campbell, “De Facto Officers” (1994) 2 Australian Journal of Administrative Law 5; O Dixon, “De facto officers” (1938) 1 Res Judicatae 285. What limits there are, or should be, on the statutory validation in s 242 of the Legislation Act are not clear. It is, for example, not limited to formal defects, such as those which do not invalidate bankruptcy notices under the bankruptcy legislation: Adams v Lambert(2006) 228 CLR 409 at 415-6; [18]. The statutory provision is cast in wide terms, using the words “anything done under a delegation” and the broad connector “or in relation to the delegation”. As to the latter, an expression “of wide import” see, inter alia, Victoria v Commonwealth[1971] HCA 16; (1971) 122 CLR 353 at 359 (Windeyer J).
113. The precise limits of s 242 of the Legislation Act must await for another day. It appears to have very wide application. In any event, I am satisfied that it would validate any report that was made by Mr Giucci under s 59 of the Sentence Administration Act were his appointment to an office, by which he was delegated to exercise the power under that section, to be found to be invalid in fact.
83․Despite the apparent breadth of s 242 of the Legislation Act, and s 21(7) of the PSM Act, the protection that those provisions afford does not extend to all attempted, but ineffective, delegations and declarations. There must be a ‘defect or irregularity’ in or in relation to the delegation or declaration.
84․In my view, neither the Chief Minister’s Declaration nor the Access Canberra Delegation relevantly suffered from a defect or irregularity and there was no defect or irregularity in relation to either of those instruments. In circumstances where the Minister for Road Safety was responsible for s 25 of the Safety and Traffic Management Act, there was no lawful way for the Chief Minister to declare that the power in that provision could be exercised by the head of Access Canberra. He simply did not have the power to make the declaration in that respect under s 21 of the PSM Act.
85․In Burridge, the Court of Appeal considered the application of s 242 of the Legislation in relation to the authority of the informant in that case to lay the Information. While the informant said that he was fulfilling the role of the delegate of the Chief Police Officer (who did have authority to lay the Information), the informant did not hold any of the positions to whom the Chief Police Officer had delegated her power.
86․At [77], the Court said:
… The Court’s conclusion is that there has not been a delegation to Constable McCue. This is to be distinguished from a delegation which for some inherent reason is defective. If the latter was the case s 242 of the Legislation Act would have come to the respondent’s aid. Section 242 cannot, however, mend a non-existent delegation.
87․At [79] – [80], the Court said:
79. Refshauge J [in Lewis], as can be seen above, has pointed out the width of s 242, and in particular that it refers to “anything done under a delegation” and also extends to a defect in “relation to” the delegation. The wording is to be distinguished from curing an absence of a delegation. That is the situation here. This is not a case of curing a defect in a delegation or something done in relation to the delegation. This is a case of there being no delegation in the first place. There is no delegation for s 242 to cure.
80. Accordingly, the entitlement of Constable McCue to have laid the Information in his asserted delegated capacity has been shown to be missing.
88․Consistently with the above conclusion, I am of the view that s 242 of the Legislation Act and s 21(7) of the PSM Act have no application in this case. The Chief Minister’s Declaration, insofar as it concerned the power to issue a s 25 certificate (and upon which the Access Canberra Delegation relied for authority to delegate that power to the Informant’s position number) was, at law, never made because the Chief Minister had no power to make it (Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11). While, in contrast to Burridge, there was an apparent delegation to the Informant, the validity of that delegation rested on the Chief Minister’s Declaration, which could not lawfully have been made.
89․As I have noted earlier in these reasons, the Chief Minister’s Declaration did not contain a defect in relation to the purported declaration that the head of Access Canberra could issue a s 25 certificate. This was not a case where the Chief Minister could have declared that the head of Access Canberra could exercise that power and something was not done properly. Section 21 of the PSM Act simply could not be relied on by the Chief Minister to declare that the power to issue a s 25 certificate could be exercised by the head of Access Canberra.
Section 25 Certificate is inadmissible
90․As the Informant had no authority to issue the s 25 Certificate, it is inadmissible in the proceeding.
91․In these circumstances, it is not necessary to address the Defendant’s submission that the relevant detection device was not an approved traffic offence device and that the testing of the speed measuring device did not comply with the Safety & Traffic Management Regulation.
92․Without the s 25 Certificate, there is no evidence that the Defendant was speeding when she drove through the Intersection on 31 December 2023 and the charge that was brought against her must fail.
Alternative basis for finding the Defendant not guilty of the offence charged
93․Even if the s 25 Certificate was admissible in the proceeding, I would have found the Defendant not guilty of the offence charged. The below analysis proceeds on the basis that the s 25 Certificate provides evidence of the matters set out in it.
94․As noted earlier in these reasons, it is not in dispute that:
(a)the Defendant and her partner drove their cars through the Intersection at 1.27 pm on 31 December 2023; and
(b)the speed limit applicable to the relevant length of road on Ginninderra Drive was (and remains) 80 km per hour.
95․I also note that the evidence of the Defendant and her partner, that the Defendant travelled at a constant distance behind the Defendant’s partner through the Intersection, was not challenged by the Prosecution. It is plausible evidence.
96․The Defendant and her partner were travelling together. Ordinarily, when people are driving in convoy (as the Defendant and her partner appeared to be driving through the Intersection) they would maintain a constant distance (and, therefore, a consistent speed). Even when people are driving together otherwise than in convoy, they would ordinarily maintain a roughly consistent speed.
97․I find that the Defendant and her partner travelled at a constant distance between each other, and therefore at a consistent speed, through the Intersection.
Evidence as to the Defendant’s speed
98․There is conflicting evidence as to whether the Defendant drove through the Intersection at more than 80 km per hour.
99․On the one hand, a speed measurement device recorded the Defendant’s car being driven through the Intersection at 98 km per hour.
100․On the other hand:
(a)the Defendant gave evidence that she was travelling at or below 80 km per hour;
(b)the Defendant’s partner’s evidence was that he drove through the Intersection at 80 km per hour (and that he did not receive a traffic infringement notice and was not prosecuted for exceeding the speed limit applicable to Ginninderra Drive at the Intersection); and
(c)as I have found, the Defendant travelled at a constant distance behind (and, therefore, at a consistent speed with) the Defendant’s partner through the Intersection.
Evidence of the speed measurement device
101․The speed measurement device is a scientific instrument that is calibrated to perform within an accuracy tolerance of 2 km per hour. It is approved in the ACT to be used for traffic offence detection.
102․It was tested on 22 June 2023 and found to be operating within the prescribed accuracy tolerance of 2 km per hour. While Mr Sim accepted in cross-examination that he could not know that the device did not suffer a fault on the relevant day, he also said that most devices are pretty stable. While he has seen loop cut failures, where a device cannot produce any readings, he has not seen faults that result in a device being out of calibration.
103․In my view, the output of the speed measurement device provides good evidence of the speed that the Defendant drove through the Intersection.
Defendant’s evidence
104․In examination-in-chief, the Defendant’s evidence was that she was travelling at 80 km per hour or below when driving through the Intersection. In cross-examination she said that she was certain that she was travelling below 80 km per hour because she always monitors her speed. That is, her evidence related to a practice she says she adopts when she drives, rather than being evidence that she looked at the speedometer and noticed a particular speed as she travelled through the Intersection.
105․The nature of that evidence (as to her regular practice, rather than as to a recollection) makes sense, given that the Defendant said that she first knew of the speeding allegation when she received the traffic infringement notice that was sent to her. She accepted that it was possible that that was 21 days after the relevant day.
106․Unless there was something noteworthy about the drive that caused her to reflect on her speed at the time, it is most unlikely that the Defendant would remember, three weeks later, the speed at which she was travelling. I find that the Defendant did not have any recollection at the time she received the traffic infringement notice (or at the hearing) as to the particular speed at which she drove through the Intersection.
107․Taken in isolation, I would have difficulty accepting the Defendant’s evidence that she always monitors her speed in order to stay under the speed limit (and therefore did so on 31 December 2023). Most people, even those who are particularly conscious of speed limits, will exceed them from time to time (even if only unintentionally). It is also an easy assertion to make, even if untrue.
108․However, she was not challenged on her evidence as to her practice of monitoring her speed. While the Prosecution did put to her that she was travelling over the speed limit on the relevant date (a proposition the Defendant refuted), it was never suggested to her that there were occasions that she had been found to have (or accepted that she had) exceeded the speed limit. No evidence to that effect was produced by the Prosecution.
109․Further, and more importantly:
(a)the Defendant gave a specific reason that she was particularly conscious of her speed at the time, being that it was a period when double demerits applied; and
(b)the proposition that she was not speeding is consistent with:
1․ the evidence of the Defendant’s partner, behind whom she was driving, that he was driving at 80 km per hour; and
2․ the fact that the Defendant drove at a constant distance behind her partner (and, therefore, at a consistent speed).
110․The Defendant’s partner’s evidence that he was travelling at 80 km per hour through the Intersection was unchallenged. It is also consistent with the fact that no action was taken against the Defendant’s partner (whether by infringement notice or prosecution, or both) for exceeding the speed limit when he drove through the Intersection.
111․It is possible that the speed measurement device accurately captured the speed of the Defendant’s car, and that her partner was also driving at around 98 km per hour but not captured by the detection device. There may be a limit, for example, on how many vehicles the detection device can capture during any given period and some vehicles will not be captured for other reasons, including because their licence plates are blocked by other vehicles.
112․However, no evidence was led at the hearing in relation to the limitations of the speed measurement device and Mr Sim was not asked any questions about that issue. I do not know what the likelihood is of a speed measurement device missing a speeding driver and what the factors are which impact the capacity of a speed measurement device to identify a speeding driver.
113․The other possibility is that the Defendant’s partner was driving at 80 km per hour, as he said he was (consistent with him not being the subject of any action for speeding on the relevant day), and that the reading that the speed measurement device produced for the Defendant’s car was therefore incorrect. While Mr Sim gave evidence that he has not seen faults that result in a device being out of calibration, the extent of Mr Sim’s experience was not explored in any depth.
114․I do not know, for example, when Mr Sim says that he has not seen such faults, how many devices he has inspected, over what period or in what circumstances. I also do not know whether there are circumstances in which a device that is properly calibrated may nevertheless produce an incorrect reading. Mr Sim was not asked whether the accuracy of the speed measurement device that he tested under lab conditions always reflects its performance in the field, or whether there are environmental or other factors which can impact its performance.
115․Mr Sim gave evidence that he could not confirm that there was no error in the reading produced by the device because that was outside the scope of his knowledge. He said that he was not involved in the installation and field testing of the device.
Conclusion
116․Despite the evidence that would have been afforded by the s 25 Certificate if it had been admissible, it is possible that the evidence of the Defendant and her partner, that they were each travelling at or below 80 km per hour, might be true. Accordingly, even if the s 25 Certificate had been admissible, the Prosecution would not have satisfied me, beyond reasonable doubt, that the Defendant was travelling in excess of the speed limit applicable to the relevant length of road on Ginninderra Drive on 31 December 2023.
Determination
117․I find the Defendant not guilty of the offence charged.
| I certify that the preceding one hundred and seventeen [117] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby. Associate: Niamh Dwyer Date: 24/02/2025 |
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