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Sunday, 30 December 2012

Foster v Harris [2012] VSC 637: technical challenges to speeding offences

The appeal in Foster v Harris [2012] VSC 637 considered technical arguments about a speeding charge. It was handed down just before Christmas.

There were two broad issues:

1) did the charge information contain sufficient information; and
2) did the certificate of testing of the prescribed device comply with the regulations, making it admissible.

The magistrate determined both questions in favour of the prosecution, and Williams J found that both points had been decided correctly.

The charge wording

The speed limit applicable to the appellant at the time of the offence was in a school zone, a length of road which has a speed limit of 40 km/h during certain periods, but another speed limit the rest of the time. These limits only apply on certain proclaimed days of the year.

The charge information made no reference to the time of day when the offence was said to have occurred. It was common ground that if the offence had occurred when the school zone limit was not in operation the appellant wouldn't have been speeding.

The Court applied Ciorra v Cole [2004] VSC 416. In that case, Redlich J distinguished between the legal elements of the offence, the essential factual ingredients which must be stated, and particulars required for its proof and for the preparation of the defence. The speed limit is an essential element. The way in which the speed limit is set is a matter which must be proved, but is not a matter that must be expressed in the charge information. By analogy, the time of day when an offence occurs in a school zone is also a factual ingredient and not a charge element.

Williams J [at 17]:

The respondent reminds the Court of Charles JA’s direction in DPP Reference No 2 of 2001 4 VR 55, 68 [40]. that ‘a charge should be interpreted in the manner a reasonable defendant would understand it, giving reasonable consideration to the words of the charge, in their context’. His Honour also affirmed the necessity to strive to give a charge the meaning intended by the draftsman: Smith v Van Maanen (1991) 14 MVR 365.

It is clear from the statement of the charge before me that Ms Foster was alleged to have driven on 9 September 2010 in Prince Street, Myrtleford, at a speed greater than the speed-limit of 40 km per hour applicable to her, in contravention of r 20. Unlike the situation in Woolworths (Victoria) Ltd v Fred Marsh (Unreported, Supreme Court of Victoria, Ormiston J, 12 June 1986), there is no uncertainty as to the offence charged. Nor is the offence created by r 20 ambulatory in nature.

Ciorra and Kirtley establish that the two essential ingredients of the charged offence to be included in the charge are the alleged facts that the vehicle was driven by the appellant and that she drove it over the speed-limit applicable to her on that particular section of Prince Street. It was not necessary to include in the charge express reference to the factual basis on which the applicable speed-limit was to be determined, such as that she was driving on a declared school day or during the period referred to on the school zone sign. Such matters, and other relevant requirements of the Rules might have been the subject of requests of particulars of the alleged applicability of the 40 km per hour speed-limit to the appellant.

The certificate of testing

Under s 79 of the Road Safety Act 1986, evidence of a measurement of speed obtained by use of a speed detector was admissible and, absent evidence to the contrary, could constitute proof of speed, provided that the speed detector had been tested and sealed within the previous twelve months.

The certificate that had been tendered in the Magistrates' Court identified that the detector had been tested by a testing officer. It was argued that the certificate was ambiguous and insufficient to prove that the person who signed the certificate was a testing officer as defined by r 5 of the Road Safety (General) Regulations 2009. This argument was also rejected.

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