JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2013
DATE OF JUDGMENT:	27 June 2014
CASE MAY BE CITED AS:	Rodger v Wojcik
MEDIUM NEUTRAL CITATION:	[2014] VSC 308

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APPEAL FROM MAGISTRATES’ COURT – Charge of exceeding speed limit – Preliminary brief served – Appellant failed to appear at court – Charge heard and determined ex parte by judicial registrar of Magistrates’ Court – Whether appeal from order of judicial registrar competent – Whether evidence in preliminary brief sufficient to prove charge – Evidence insufficient to prove prescribed use of speed detection device, and therefore particular speed alleged, but sufficient to prove charge – Appeal allowed – Appellant to be re-sentenced by Supreme Court on evidence in preliminary brief rather than by Magistrates’ Court on remittal on fresh evidence – Criminal Procedure Act 2009 (Vic), ss 80, 84, 86, 87, 254 & 272 – Magistrates’ Court Act 1989 (Vic), ss 4, 16I & 16K – Magistrates’ Court (Judicial Registrars) Rules 2005 (Vic), rr 4 & 5 - Road Safety Road Rules 2009 (Vic), r 20 – Road Safety Act 1986 (Vic), ss 25, 28 & 79 & Sch. 5 – Road Safety (General) Regulations 2009 (Vic), r 46 & Sch. 7.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S Hardy	The Law Offices of Barry Fried
For the Respondent	Ms A Hassan	Office of Public Prosecutions

HIS HONOUR:

Introduction

At about 6:22 p.m. on 31 August 2012, Senior Constable Adam Wojcik (“the respondent”) and another officer were travelling along Green Gully Road in Keilor in a marked police car. They were behind Andrew Rodger (“the appellant”), who was riding a motorcycle, the respondent said, “at a fast rate of speed”. The appellant “accelerated at a fast rate of speed away from them”. The respondent employed a speed detection radar, which indicated that the motorcycle was travelling at 129 kilometres per hour (“kph”). The applicable speed limit was 70 kph. Signs to that effect were in place.

The appellant was intercepted. When asked to produce his driver’s licence, he said, “Look, I know I’ve fucked up. But I’ve got a good excuse. I’m on my way to an AA meeting in Moonee Ponds. I’m a recovering alcoholic.” When the respondent said, “Okay, but that’s no excuse for the speed”, the appellant responded, “I know. I don’t know what I was doing.” When told his speed was detected at 129 kph, he said, “Was it that quick.” When asked whether he knew it was a 70 kph zone, he said, “70 or 80.” The appellant’s motorcycle was impounded for 30 days.

On 8 September 2012, the respondent charged the appellant with riding over the speed limit of 70 kph contrary to r 20 of the Road Safety Road Rules 2009 (Vic) (“the Road Rules”). The…

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 Rodger v Wojcik

Details

AGLC: Rodger v Wojcik [2014] VSC 308
Case: [2014] VSC 308
Decision Date: 27 June 2014

CaseChat Overview and Summary

Rodger appeals against a decision of the Magistrates' Court of Victoria, which found him guilty of exceeding the speed limit and imposed a penalty. The appellant did not appear in court after a preliminary brief was served on him. The charge was heard and determined ex parte by a judicial registrar. The appeal raises two primary issues: whether the appeal from the order of the judicial registrar is competent and whether the evidence in the preliminary brief is sufficient to prove the charge. The court found that the appeal was competent, as the order of the judicial registrar was a final order for the purposes of the appeal. Regarding the sufficiency of the evidence, the court determined that while the evidence was insufficient to prove the prescribed use of the speed detection device and the particular speed alleged, it was sufficient to prove that the appellant exceeded the speed limit. Consequently, the appeal was allowed, and the appellant was to be re-sentenced by the Supreme Court based on the evidence in the preliminary brief. The court refrained from remitting the matter to the Magistrates' Court for fresh evidence, as the appellant had not contested the sufficiency of the evidence in the preliminary brief.

Orders