The Roads and Traffic Authority of New South Wales v Ahmed

[2009] NSWSC 273

CITATION:	The Roads and Traffic Authority of New South Wales v Ahmed [2009] NSWSC 273
HEARING DATE(S):	8 April 2009
JUDGMENT DATE :	22 April 2009
JUDGMENT OF:	Schmidt AJ
DECISION:	1. The appeal is upheld, the Local Court’s orders are set aside and the Local Court to resume hearing the matter. 2. The defendant is to pay the plaintiff's costs of the proceedings, up to $10,000. 3. The defendant is to have a certificate under s 6 of the Suitors Fund Act 1951 in respect of such costs.
CATCHWORDS:	TRAFFIC LAW - appeal from Local Court - speed camera - elements of offence - evidence - appeal upheld - matter returned to Local Court for further hearing - costs - section 6 of the Suitors Fund Act 1951
LEGISLATION CITED:	Australian Road Rules Crimes (Appeal and Review) Act 2001 Road Transport (Safety and Traffic Management) Act 1999 Suitors Fund Act 1951
CATEGORY:	Principal judgment
CASES CITED:	Burringbar Real Estate Centre Pty Limited v Anthony John Ryder & Ors [2008] NSWSC 891 Roads and Traffic Authority of NSW v Hugh [2008] NSWSC 1426 Roads and Traffic Authority of NSW v Lian [2009] NSWSC 146
PARTIES:	The Roads and Traffic Authority of New South Wales - Plaintiff Ayaz Ahmed - Defendant
FILE NUMBER(S):	SC 16344/08
COUNSEL:	Mr T Lynch, counsel - Plaintiff No appearance by Defendant
SOLICITORS:	Hunt & Hunt - Plaintiff
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Magistrate Pierce
LOWER COURT DATE OF DECISION:	28 August 2008

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SCHMIDT AJ

16344/08 THE ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v AYAZ AHMED

JUDGMENT

1 HER HONOUR: This appeal is brought under s 56(1) of the Crimes (Appeal and Review) Act 2001 from a decision of the Local Court given on 25 August 2008. A court attendance notice alleging a speeding offence by Mr Ayaz Ahmed was dismissed. Mr Ahmed did not appear at the hearing of the appeal, but filed a submission afterwards, explaining the misadventure by which he came not to appear and arguing that the appeal should not be upheld and that he should not be ordered to pay the costs of the appeal, but that each party should bear their own costs.

2 The alleged offence occurred in the Lane Cove tunnel, where variable speed limits applied. The court attendance notice described the offence with which Mr Ahmed was charged as being a camera recorded speeding offence; that the speed limit applying at the time in question was 40 kilometres per hour; that he was exceeding the speed limit by 15 kilometres per hour and under; that his speed was alleged to have been 56 kilometres per hour, as well as particulars of his vehicle and the place at which the offence was alleged to have occurred.

3 There was evidence of the 40 kilometre signage, as well as evidence of the speed limit and speed recorded by a speed camera. There was no issue on Mr Ahmed’s part that he was driving above that limit.

4 His Honour’s decision was very shortly given, with but little explanation. The view seemingly taken was that while it had been established, for the length of road in question, where the 40 kilometre speed limit commenced, in order for the offence charged to be proven Rule 21 of the Australian Road Rules required the prosecutor also to establish where that speed limit ended. This required evidence, for instance, of a speed de-restriction sign, or a different speed limit sign, so as to establish what length of road the 40 kilometre speed limit applied to.

5 It was the plaintiff's case that the Magistrate had misdirected himself as to the matters constituting the elements of the offence charged under Rule 20. This led his Honour to require proof of matters which on the true construction of the Rules required no proof. The evidence of the applicable speed was before his Honour in accordance with the provisions of the Road Transport (Safety and Traffic Management) Act 1999. The question of signage thus did not arise in the way contemplated by his Honour, but, in any event, his Honour erred in his construction of the relevant Rules.

Consideration

6 The charge was brought under Rule 20 of the Australian Road Rules, which provides:

20 Obeying the speed-limit

A driver must not drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving.

Offence provision.

Note 1 The rules about speed-limits are as follows:

• rule 21 — speed-limit where a speed-limit sign applies

• rule 22 — speed-limit in a speed-limited area

• rule 23 — speed-limit in a school zone

• rule 24 — speed-limit in a shared zone

• rule 25 — speed-limit elsewhere.

Note 2 Road includes a road-related area — see rule 11 (2).

Note 3 Length of road includes a marked lane, a part of a marked lane, or another part of a length of road — see the definition in the dictionary.

Note 4 Part 20, Division 2 deals with the way in which a traffic sign applies to a length of road. Part 20, Division 3 deals with the way in which the traffic sign applies to drivers driving on the length of road.

7 Rule 10 of the Australian Road Rules provides that a contravention of Rule 20 was an offence, it being an 'offence provision'.

8 The word ‘length’ was defined in the Dictionary of the Rules as:

length , of road, includes:

(a) a marked lane or a part of a marked lane; and
(b) another part of a length of road.
Note Marked lane is defined in this dictionary.

9 The word 'road' was defined in Rule 12 as:

12 What is a road

(1) A road is an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles.

Note. Motor vehicle is defined in the dictionary.

(2) However, unless the contrary intention appears, a reference in the Australian Road Rules (except in this Division) to a road does not include a reference to:


(a) an area so far as the area is declared, under another law of this jurisdiction, not to be a road for the Australian Road Rules ; or

(b) any shoulder of the road.

(3) The shoulder of the road includes any part of the road that is not designed to be used by motor vehicles in travelling along the road, and includes:

(a) for a kerbed road — any part of the kerb; and
(b) for a sealed road — any unsealed part of the road, and any sealed part of the road outside an edge line on the road;

but does not include a bicycle path, footpath or shared path.
Note . Bicycle path is defined in rule 239, edge line and footpath are defined in the dictionary, and shared path is defined in rule 242

10 Rule 21 of the Australian Road Rules deals with speed limits. It provided:

21 Speed-limit where a speed-limit sign applies

(1) The speed-limit applying to a driver for a length of road to which a speed-limit sign applies is the number of kilometres per hour indicated by the number on the sign.

Note Length of road is defined in the dictionary.

(2) However, if the number on the speed-limit sign is over 100 and the driver is driving a bus with a GVM over 5 tonnes, or another vehicle with a GVM over 12 tonnes, the speed-limit applying to the driver for the length of road is 100 kilometres per hour.

Note 1 Bus and GVM are defined in the dictionary, and vehicle is defined in rule 15.
Note 2 Five tonnes is specified for the definition of heavy omnibus in the Australian Design Rules issued under the Motor Vehicle Standards Act 1989 (Cth).
Note 3 If the vehicle is an oversize or overmass vehicle, the vehicle may be restricted to a lower speed-limit under another law of this jurisdiction.


(3) A speed-limit sig n on a road applies to the length of road beginning at the sign and ending at the nearest of the following:

(a) a speed-limit sign on the road with a different number on the sign;

(b) an end speed-limit sign or speed derestriction sign on the road;

(c) if the road ends at a T–intersection or dead end — the end of the road.

Note 1 T–intersection is defined in the dictionary.
Note 2 Rule 322 (1) and (2) deal with the meaning of a traffic sign on a road.

11 There was evidence of the speed limit applying to the length of road, including that recorded by a speed camera.

12 In Roads and Traffic Authority of New South Wales v Hugh [2008] NSWSC 1426, Fullerton J observed at [17] - [25]:

Evidence of speed in excess of the speed limit

17 Section 45(1) of the Road Traffic (Safety and Traffic Management) Act provides that an approved camera recording device, designed for attachment to an approved speed measuring device is a device, for the purposes of taking photographs of vehicles being driven in excess of speed limits and for recording on any such photographs the following matters:

(a) the speed at which any such vehicle is travelling (as measured by the approved speed measuring device), and

(b) the date on which the photograph is taken, and

(c) the time and location at which the photograph is taken, and

(d) the speed limit that, in accordance with the regulations, is applicable to the length of road or road related area at which the photograph is taken, and

(e) the direction in which the vehicle is travelling (that is, towards or away from the device). (emphasis added)

18 Section 46 provides that in proceedings for any offence in which evidence is given of a measurement of speed obtained by the use of an approved speed measuring device, a certificate purporting to be signed by an appropriate officer certifying that:
(a) the device is an approved speed measuring device within the meaning of this Act, and

(b) on a day specified in the certificate (being within the time prescribed by the regulations before the alleged time of the offence) the device was tested in accordance with the regulations and sealed by an appropriate officer, and

(c) on that day the device was accurate and operating properly,

is admissible and is evidence (unless evidence to the contrary is adduced) of the particulars certified in and by the certificate.

19 A certificate under s 46 was tendered in the proceedings. This certificate had the effect of certifying a type, serial number, location and location identifier of the particular approved speed measuring device which recorded the defendant’s vehicle travelling at the specified speed of 53 km/h as recorded by an approved cameral recording device to which s 47 of the Act refers.


20 A certificate under s 47(5) was also tendered in the proceedings. This certificate had the effect of certifying the type of camera system, the location of the camera system, its location identifier and the fact that on inspection the approved digital recording camera device was found to be operating correctly.

21 Importantly, s 47(3) provides:

(3) A photograph tendered in evidence as a photograph taken by an approved camera recording device on a specified day and at a specified location

(a) is to be taken as having been so taken (unless evidence to the contrary is adduced), and

(b) is evidence unless evidence to the contrary is adduced, of the matters shown or recorded on the photograph. (emphasis added)

22 In this case there being no evidence to the contrary adduced in the proceedings, the photographs tendered in evidence as photographs taken by the approved camera recording device on 4 September 2007 at the specified location are evidence of all matters shown and recorded on the photographs. In my view there is no basis upon which s 47(3)(b) of the Act, expressed as it is in general terms, ought be read down so as to include only a reference to matters recorded or shown photographically as distinct from by digital text.

23 Having regard to the operation of s 47(3)(b), evidence of the speed limit of 40 km/h, fixed in accordance with the regulations applicable to the length of road on which the photograph was taken, was properly before the Court, as was the fact that the defendant travelled in excess of that speed limit. There was no evidence of any other speed limit governing the use of the roadway by drivers at the relevant time.

24 Since I am satisfied that the reference to “school zone” is not a constituent element of the offence charged, the issue before the magistrate was whether the school zone sign, fixing 40 km/h as the applicable speed limit, was applicable to the length of the road on which the offence was alleged to have occurred and at the time the offence was alleged to have occurred.

25 In my view, the learned magistrate was in error in both importing into the offence a requirement that the area of the roadway upon which the defendant was travelling when photographed be wholly delineated as a “school zone” and by failing to have regard to the fact that the speed signage at the designated part of the roadway fixed the speed limit at 40 km/h in any event, such as to justify the offence being proved

13 The situation in relation to the offence with which Mr Ahmed was charged was that the speed applicable to the length of road where the alleged offence occurred, as well as the speed at which Mr Ahmed was driving, was established on the evidence, in accordance with the provisions relating to speed cameras in the Road Transport (Safety and Traffic Management) Act, as discussed in Hugh. The relevant photographs and certificates were in evidence. Mr Ahmed also conceded at the hearing below that the speed limit was 40 kilometres per hour and that he was driving in excess of that speed.

14 In accordance with Rule 21(3), the 40 kilometre speed limit applied to the length of road after the sign notifying that speed, until the speed limit was thereafter changed, by another sign, or the road ended.

15 In terms of the offence created by Rule 20 with which Mr Ahmed was charged, what had to be proven, and was proven, was that Mr Ahmed was driving at a speed above the speed-limit applicable to the length of road at which the offence was alleged to have occurred, that being where Mr Ahmed was driving, when the alleged offence occurred. That the speed limit applicable later changed, or that the length of road ended, was irrelevant to the question of whether an offence had been committed at the point of the road to which the charge related.

16 In this case the speed limit at that point of the road was not in question. There was evidence of the signage, as well as the speed limit recorded by the speed camera. Mr Ahmed did not challenge the prosecutor’s case that the applicable limit was 40 kilometres per hour, or that he was driving in excess of that speed, as the speed camera had recorded. The dismissal of each charge flowed from his Honour’s view that the prosecutor also had to establish where the 40 kilometre speed limit applicable to the length of road at which the offence occurred later changed, or the road ended. Consistently with the views of Fullerton J in Hugh at [11] and that of Price J in Roads and Traffic Authority of New South Wales v Lian [2009] NSWSC 146 (who agreed with her Honour at [15]), I am also of the view that this was not an element of the offence charged and was not otherwise required to be proven by Rule 21. Fullerton J observed in Hugh:

11 What the prosecution was obliged to prove to make out the offence charged was simply that the defendant exceeded the speed limit that applied to the particular length of road where the offence was allegedly committed. Reference to various of the operating provisions of the Australian Road Rules, in my view, put it beyond doubt that the offence is constituted in that way.

17 It follows that his Honour misconstrued the provisions of Rules 20 and 21 of the Australian Road Rules and failed to have regard to the relevant provisions of the Road Transport (Safety and Traffic Management) Act. On the evidence there can be no question that the offence charged was proven. The appeal must be upheld and the matter returned to the Local Court for further hearing.

18 I have considered the submissions which Mr Ahmed advanced. They are not a basis upon which this appeal my be refused.

19 Consistent with the plaintiff’s submissions, I am satisfied that this case is an appropriate one for orders contemplated by s 6 of the Suitors Fund Act 1951 to be made in favour of the defendant. (See the discussion of Hall J in Burringbar Real Estate Centre Pty Limited v Anthony John Ryder & Ors [2008] NSWSC 891.) That will accommodate Mr Ahmed’s concerns about bearing the costs of this appeal.

Orders

20 For the reasons given, I make orders in terms sought by the plaintiff, namely that:

1. The appeal is upheld, the Local Court’s orders are set aside and the Local Court resume hearing of the matter.

2. The defendant is to pay the plaintiff's costs of the proceedings, up to $10,000.
3. The defendant is to have a certificate under s 6 of the Suitors Fund Act 1951 in respect of such costs.

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