Stanojlovic v Kokas - [2020] VSC 305

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 02466

ROBERT STANOJLOVIC	Plaintiff
v
STEVEN EMIL KOKAS	First Defendant
THE COUNTY COURT OF VICTORIA	Second Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2019
DATE OF JUDGMENT:	23 June 2020
CASE MAY BE CITED AS:	Stanojlovic v Kokas & anor
MEDIUM NEUTRAL CITATION:	[2020] VSC 305

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JUDICIAL REVIEW – Criminal Law – Probationary driver failing to display P Plate – Construction of Reg 55(1) of the Road Safety (Drivers) Regulations 2009 (Vic) – Whether ‘driving a motor vehicle other than a motor cycle’ is an essential element of the charge – Criminal Procedure Act 2009 (Vic) ss 6, 8 and Schedule 1, clause 4 – Ex parte Lovell; Re Buckley and anor (1938) 38 SR (NSW) 153; Alwer v McLean (2000) 37 MVR 125, Goodey v Clarke (2002) 37 MVR 121, referred to and applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr PJ Billings	Patten Robins Lawyers
For the First Defendant	Dr J Harkess	Solicitor for the Director of Public Prosecutions

HER HONOUR:

Background and procedural history

Probationary drivers in the State of Victoria are required to display a red or green P plate on their vehicles when driving a motor vehicle. On 14 August 2015, the applicant, then a probationary driver, was issued an infringement notice for failing to display a P plate at the front of the tow truck he was driving. The applicant seeks judicial review of a decision by a County Court judge (‘judge’), who determined that the applicant had committed the offence created by r 55(1) of the Road Safety (Drivers) Regulations 2009 (‘Regulations’). This decision followed a successful application for judicial review by the informant of an earlier decision by the same judge to quash the applicant’s conviction for the offence. The sole issue in this proceeding is whether the charge sheet (‘charge’) detailing the applicant’s offending was defective. For the following reasons, I have determined the answer to this question is ‘yes’. The application for review is therefore allowed.

On 14 August 2015, there was a collision involving multiple vehicles in Noble Park. A police officer attended and requested tow trucks attend the scene. The applicant attended the scene. However, he did not have a P plate attached to the front window of his tow truck, although he did in his rear window. Accordingly, a police officer present at the scene issued an infringement notice to the applicant for breach of r 55(1) of the Regulations. The penalty for infringement of r 55(1) is a fine of $152 and the loss of three demerit points.

The charge filed in the Magistrates’ Court on 26 November 2015 contained the following description of the charge:

The accused at Corrigan Road on 14/08/2015, being a probationary driver, did drive a motor vehicle not being a tractor on a highway namely Corrigan Road without having a ‘P’…

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 Stanojlovic v Kokas

Details

AGLC: Stanojlovic v Kokas [2020] VSC 305
Case: [2020] VSC 305
Decision Date: 23 June 2020

CaseChat Overview and Summary

In the matter of Stanojlovic v Kokas, the respondent, an experienced police officer, issued a Notice of Intended Prosecution to the applicant, a probationary driver, for failing to display a "P" plate on his vehicle. The applicant sought judicial review of the decision to issue the notice, arguing that the respondent had incorrectly interpreted Regulation 55(1) of the Road Safety (Drivers) Regulations 2009 (Vic). The legal dispute was heard and determined by the Supreme Court of Victoria.

The primary legal issue before the court was whether the phrase "driving a motor vehicle other than a motor cycle" in Regulation 55(1) was an essential element of the charge for failing to display a "P" plate. The applicant contended that because the respondent had not confirmed the type of motor vehicle the applicant was driving at the time of the offence, the notice should be quashed. The respondent argued that the phrase in question was not an essential element and, therefore, the notice was correctly issued.

The court considered the relevant statutory provisions and previous cases, including Ex parte Lovell; Re Buckley and anor (1938) 38 SR (NSW) 153, Alwer v McLean (2000) 37 MVR 125, and Goodey v Clarke (2002) 37 MVR 121. The court found that the phrase "driving a motor vehicle other than a motor cycle" was not an essential element of the charge for failing to display a "P" plate. The court held that the respondent was not required to specify the type of motor vehicle in the notice, and the applicant's argument did not succeed.

Accordingly, the court dismissed the application for judicial review. The respondent's decision to issue the Notice of Intended Prosecution to the applicant was upheld, and no further orders were made.

Orders