Toscano v Cushen
[2019] VSC 158
•18 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 02284
| AURELIO TOSCANO | Appellant |
| v | |
| JACLYN CUSHEN | Respondent |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 February 2019 |
DATE OF JUDGMENT: | 18 March 2019 |
CASE MAY BE CITED AS: | Toscano v Cushen |
MEDIUM NEUTRAL CITATION: | [2019] VSC 158 |
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ADMINISTRATIVE LAW – Appeal on a question of law from the Magistrates’ Court – Appeal by person convicted of speeding offence – Where Magistrate determined case on basis of preliminary brief after defendant failed to appear – Road safety – Road safety camera – Whether speed measuring device prescribed by Road Safety (General) Regulations2009 (Vic) – Road Safety Act 1986 (Vic) ss 83, 83A, 84(1), 84(4A) – Road Safety Road Rules 2009 (Vic) rr 20, 152, 326, 329 – Road Safety (General) Regulations2009 (Vic) reg 30.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S Hardy | The Law Offices of Barry Fried |
| For the Respondent | Ms K Argiropoulos | Director of Public Prosecutions |
HIS HONOUR:
Introduction
Aurelio Toscano (‘the appellant’) was found guilty of exceeding the speed limit of 40 km/h on 25 May 2017 under r 20 of the Road Safety Road Rules 2009 (Vic) (‘Road Rules’). The speed limit was said to apply to the length of road he was driving on, about 1600 metres west of Sydney Road on the Western Ring Road. At the time, the appellant was driving a vehicle registered no AEO 683 (‘the vehicle’).
On 19 October 2018, the Magistrates’ Court at Broadmeadows fined the appellant $500, cancelled all licences issued under the Road Safety Act 1986 (Vic) (‘Act’), and disqualified him from obtaining any licence for a period of 12 months from 19 November 2018. The appellant did not attend the hearing.
The appellant appeals to this Court on a question of law under s 272 of the Criminal Procedure Act 2009 (Vic).
The Magistrates’ Court hearing
The charge
The appellant was charged with the following offence:
The accused at Broadmeadows on 25/05/2017, being the driver of a vehicle on a length of road, namely Western Ring Road, did drive over the speed-limit applying to the driver for the length of road where the driver is driving, to which a speed-limit sign of 40 kilometres per hour applied approximately 1600 metres west of Sydney Road. Detected Speed 93 kph. Alleged Speed 91 kph.
An element of the charge was that a speed limit sign of 40 km/h applied to the length of road where the driver was driving. The appellant disputes that this was the case.
Informant’s evidence
Evidence was given at the hearing by Senior Constable Jaclyn Cushen, the informant. She produced a preliminary brief which contained a statement made by her. She read the statement to the Magistrate. She said that the vehicle was recorded at a speed of 93 km/h in lane 1 of the left carriageway of the Western Ring Road approximately 1600 metres west of Sydney Road.
She gave evidence that the road safety camera used was the Gatsometer Digital Radar Camera System – Parabolic (DRCS–P), referring to it as the Gatsometer Digital Radar Camera System in her oral evidence. She said that the road safety camera is an approved road safety camera for the purposes of s 66 of the Act and under reg 30(n) of the Road Safety (General) Regulations 2009 (‘the General Regulations’). She said that the camera system was activated and recorded an image of the offence.
She stated that the appellant was the registered operator of the vehicle. When interviewed by her on 4 July 2017, the appellant admitted to being the driver of the vehicle at the time of the alleged offence.
The prosecutor tendered a number of exhibits:
(a)a certificate under s 83 of the Act that showed the road safety camera DRCS-P 0057 was operating correctly in accordance with the General Regulations;
(b)a certificate of an authorised person under s 83A of the Act including photographs of the vehicle number plates, the lane markings and speed control signs at the relevant time;
(c)a certificate under s 84(1) of the Act of matters which appear or can be calculated from the records of the Roads Corporation showing that the appellant was licensed to drive a motor vehicle; and
(d)a certificate under s 84(4A) of the Act certifying that the vehicle was registered to the appellant.
Grounds of appeal
The appellant relies on two grounds of appeal:
(a) Certificates issued pursuant to s 83A of the Act provided photographic evidence that variable overhead speed limit signs applied a 40 km/h speed limit to lanes 2, 3 and 4, but not to lane 1 at the time of the alleged offence. The evidence before the Magistrate was not capable of satisfying him beyond reasonable doubt that a speed reduction to 40 km/h applied to the appellant’s vehicle travelling in lane 1.
(b) The respondent’s evidence was that the speed measuring device used to detect the speed of the accused’s vehicle was not a device prescribed by reg 30 of the General Regulations.
Appellant’s submissions
The appellant submitted:
(a)the overhead lane control signs above lane 1 displayed a red ‘X’, and the 40 km/h speed limit signs above lanes 2, 3 and 4 did not apply to lane 1; and
(b)there was not sufficient evidence that the device used to measure the speed of the vehicle was a prescribed device.
Respondent’s submissions
The respondent submitted:
(a)the 40 km/h limit signs above lanes 2, 3 and 4 coupled with the ‘X’ sign above lane 1 indicated that the 40 km/h limit applied to lane 1; and
(b)the evidence established that the device used to measure the speed of the vehicle was a prescribed device.
Relevant provisions of the Road Rules
The Dictionary in the Road Rules defines:
length, of road, includes –
(a) marked lane or part of a marked lane; and
(b) another part of a length of road;
with, for information about the application of a traffic control device to include accompanying or reasonably associated with the device;
traffic control device means a traffic sign, road marking, traffic signals, or other device to direct or warn traffic on, entering or leaving a road;
traffic signals’ means… overhead lane control signals’;
overhead lane control signal means –
(a)an illuminated red diagonal cross (whether or not flashing); or
(b)an illuminated white, green or yellow arrow pointing downwards or indicating 1 or more directions; or
(c)an illuminated speed limit sign.
Rule 152 is headed ‘Complying with overhead lane control devices’ and provides:
(1)A driver in a marked lane to which an overhead lane control device applies must comply with this rule.
Penalty: 10 penalty units.
Note
Marked lane and overhead lane control device are defined in the dictionary.
(2)If the device displays an illuminated red diagonal cross or is a traffic sign displaying a red diagonal cross, the driver must not drive in the marked lane past the device.
(3)If the device displays a flashing illuminated red diagonal cross, the driver must leave the marked lane as soon as it is safe to do so.
(4)If the device displays an illuminated white, green or yellow arrow pointing downwards or indicating one or more directions, or an illuminated speed-limit sign, the driver may drive in the marked lane past the device.
Example
Overhead lane control device applying to marked lanes.
Rule 326 of the Road Rules is headed ‘When do traffic control devices apply to a length of road or area—the basic rules’ and provides:
(1) A traffic control device applies to a length of road or an area if—
(a)the device applies to the length of road or area under 1 or more provisions of these Rules; or
(b)the device, the position of the device, or information on or with the device, indicates that the device applies to the length of road or area.
Note
With is defined in the dictionary.
(2)A traffic control device does not apply to a length of road or an area if information on or with the device expressly indicates that it does not apply to the length of road or area.
(3) Subrule (2) applies despite any other provision of this Division.
(4) In subrule (1)(b)—
the device includes another traffic control device.
Rule 329 of the Road Rules is headed ‘Traffic control devices applying to a marked lane’ and provides:
(1)A traffic control device (except a road marking) applies to a marked lane if—
(a) it is above the marked lane; or
(b)it is near the marked lane, and the device, the position of the device, or information on or with the device, indicates that it applies to the marked lane.
Example
An emergency stopping lane only sign applies to the marked lane indicated by the arrow on the sign.
Note
Marked lane, road marking and with are defined in the dictionary.
(2)A road marking applies to a marked lane if it is on the surface of the lane.
(3)However, a traffic control device does not apply to a marked lane if information on or with the device expressly indicates that the device does not apply to the marked lane.
(4) In subrule (1)(b)—
the device includes another traffic control device.
Ground 1 – Do the ‘40’ signs apply to lane 1?
The appellant submitted that:
(a) The ‘40’ signs above each of lanes 2, 3 and 4 applied to the marked lane below each sign. The overhead lane control sign marked with a red ‘X’ applied to lane 1. The red ‘X’ applied only to that lane and prohibited vehicles from entering that lane. It did not apply to lanes 2, 3 and 4.
(b) The speed limit signs did not apply to lane 1. There was a reduction in the speed limit in the adjoining lanes, but not in lane 1.
The respondent submitted that:
(a) The ‘40’ signs above lanes 2, 3 and 4 also applied to lane 1.
(b) The position of the ‘40’ sign on lanes 2, 3 and 4 and the information reasonably associated with the ‘40’ and ‘X’ signs indicated that the ‘40’ limit applied to lane 1.
Applicable Road Rules
The applicable Road Rule for the red diagonal cross sign is r 152. Rule 152(1) makes it an offence if a driver in a marked lane fails to comply with the rule. Rule 152(2) provides that if an illuminated red diagonal cross sign is displayed, the driver must not drive in the marked lane past the device. Driving in the marked lane beyond the sign is prohibited. The example in r 152(1) shows how overhead lane control signs apply to marked lanes with traffic permissible in three lanes and prohibited in the right lane.
Rule 21(1) of the Road Rules provides that the speed limit applying for 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 or the sign. Rule 20 makes it an offence to drive a vehicle at a speed which exceeds the speed limit applying to the driver for the length of road. Increasing penalties are imposed under r 20 depending on whether the speed limit is exceeded by less than 35 km/h, between 35 km/h and 45 km/h, or more than 45 km/h.
In the present case, the speed limit applying to lanes 2, 3 and 4 was 40 km/h as indicated by the ‘40’ overhead lane control signs above each lane. It was permissible for drivers in lanes 2, 3 and 4 to pass the respective ‘40’ signs but not to drive at a speed above the 40 km/h speed limit. However, driving along lane 1 beyond the ‘X’ sign was unlawful. No speed was specified for vehicles driven in lane 1, because driving in that lane beyond the illuminated red diagonal cross sign was prohibited.
Each of the red ‘X’ sign and the ‘40’ signs were traffic control devices for the purposes of r 326 of the Road Rules. It was true that r 326(1)(b) uses the word ‘with’ defined in the Dictionary as including information accompanying or reasonably associated with a device. However, the position of the red ‘X’ sign and the ’40’ signs directly above the respective lanes made it clear, and would be understood by the ordinary driver, as applying to the respective lanes over which the signs are suspended.
Taken together, the signs are a clear direction to a motorist that driving down lane 1 beyond the red ‘X’ sign is prohibited, while driving along lanes 2, 3 and 4 is permitted at a speed not exceeding 40 km/h. The signs, whether taken individually or collectively, do not authorise a vehicle to drive in lane 1 at a speed of up to 40 km/h.
There is an inherent contradiction in the respondent’s position. While the red ‘X’ sign undoubtedly applies to lane 1, the addition of a ‘40’ sign above lane 1 would be inconsistent and confusing to a driver. The red ‘X’ sign prohibits the driving of a vehicle in lane 1, while the ‘40’ sign permits a vehicle to be driven at a speed of up to 40 km/h.
Conclusion
I accept the appellant’s submission that the charge on which the appellant was found guilty is inappropriate and could not result in a conviction. There was no speed limit sign of 40 km/h applicable to lane 1 – driving in lane 1 was prohibited altogether.
The correct charge in the circumstances was a contravention of r 152(1) which requires a driver in a marked lane, to which an overhead lane control device applies, to comply with the rule. No charge under r 152(1) was preferred. If the appellant’s conduct merited such a course, charges of careless driving[1] or of dangerous driving[2] might have also been preferred.
[1]Act s 65.
[2]Act s 64.
Ground 2 – Was the road safety camera a prescribed device?
The appellant objected to admission into evidence a statement made by the respondent that was read to the Court in part and was hearsay.
The respondent submitted that:
(a) the statement was admissible relying on s 84 of the Criminal Procedure Act 2009 (Vic); and
(b) under s 84(1)(d) and (e), the informant’s statement in the preliminary brief and any exhibit referred to in the her statement were admissible in evidence despite the rule against hearsay.
The respondent stated in the preliminary brief that the ‘Gatsometer Digital Radar Camera System – Parabolic (DRCS –P)’ was a prescribed road safety camera. When activated, it recorded images of the offence. This camera is a prescribed road safety camera for the purposes of s 66 of the Act.[3]
[3]General Regulations reg 30(n).
Four certificates tendered by the respondent were exhibits to the respondent’s statement in the preliminary brief and were admissible. The certificates provide additional confirmation that the road safety camera was a prescribed road safety camera as defined in the Act. The certificate given under s 83 of the Act certifies that the road safety camera concerned had been tested and found to be operating correctly in accordance with the requirements of the General Regulations.
Conclusion
I am satisfied that it was open to the Magistrate to conclude that the road safety camera used by the respondent was a device prescribed under reg 30 of the General Regulations.
Conclusion
The appellant has succeeded on ground 1 of the notice of appeal. Ground 2 fails. As a result, the Court will allow the appeal and make orders setting aside the conviction.
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