Ante Bebek v Leonard Bruce Treloar Sca [1988] ACTSC 51 (9 September 1988)

SUPREME COURT OF THE ACT

ANTE BEBEK v. LEONARD BRUCE TRELOAR
S.C.A. No. 37 of 1987
Vehicles and Traffic - Appeal

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Vehicles and Traffic - Motor Traffic Ordinance 1936, s.147 - appeal from conviction by magistrate for speeding in a school zone - weight to be given to lack of evidence of existence of school zone sign.

Appeal - by way of rehearing on evidence below - weight of uncontested but inadmissible evidence on a matter in dispute - costs.

HEARING

CANBERRA
9:9:1988

ORDER

The appeal be upheld.

The conviction in the Magistrates Court together with the consequent fine and orders for suspension of driving licence and disqualification from holding or obtaining a driving licence be set aside.

Each party bear his own costs.

DECISION

This is an appeal against conviction by a Magistrate sitting in the Canberra Magistrates Court on 21 August 1987. The appellant was convicted of an offence under s.147(1) of the Motor Traffic Ordinance 1936. The information alleged that the appellant drove a motor vehicle in a school zone during a prescribed period from the direction which the school zone in relation to that zone is facing, at a speed exceeding 40 kilometres per hour.

2. To understand the point involved in the appeal, it is necessary to have regard to the whole of s.147 which is in the following terms:
"147 (1) A person shall not drive a motor vehicle

vehicle school zone during a prescribed
period at a speed exceeding 40 kilometres per
hour from the direction which the school zone
sign in relation to that zone is facing
(2) For the purposes of this section, a
school zone sign erected on the side of a public
street and a standard speed limit sign erected on
the side of that public street or another public
street having a junction or intersection with
(a) the first-mentioned public street; or
(b) a public street having a junction or intersection
with the first mentioned public street,
shall be taken to face the same direction if each
of those signs faces the direction from which a
motor vehicle travelling on a journey that
commenced before beginning of, but included,
the shortest practicable route between those
signs would approach that sign.
(3) This Part has effect in relation to a
part of a public street that is a school zone at
any time -
(a) other than during a prescribed period; or
(b) when the relevant speed limit sign referred
to in the definition of "school zone sign" in
sub-section (4) is not displayed,
as if that part of that street were not a school zone.
(4) In this section-
"prescribed period", in relation to a school
zone, means a period commencing at 8.00 a.m. and
ending at 4.00 p.m. on a day on which-
(a)the school located in proximity to that zone;
or
(b)if 2 or more schools are so located - either
or any of those schools
is open for the attendance of scholars;
"school zone" means -
(a) where -
(i) a school zone sign is erected on the side
of a public street; and
(ii) a standard speed limit sign is erected on
the side of that public street (being the
first such sign located after, and facing
the same direction as, the school zone
sign),
any part of that public street between those
sign; or
(b) where -
(i) a school zone sign is erected on the side
of a public street; and
(ii) a standard speed limit sign is erected on
the side of another public street having
junction or intersection with -
(A) the first-mentioned public street; or
(B) a public street having a junction or
intersection with the first-mentioned
public street,
(being the first such sign located after,
and facing the same direction as, the
school zone sign),
any part of either or any of those public
streets that lies on the shortest
practicable route between those signs;
"school zone sign" means a traffic sign inscribed
with the words "SCHOOL ZONE" accompanied by a
speed limit sign and another traffic sign bearing
an inscription indicating particular periods;
"standard speed limit sign" means a speed limit
sign other than a speed limit sign referred to in
the definition of "school zone sign" in this
sub-section."

3. The appeal is by way of rehearing on the evidence below. The evidenc e for the prosecution was restricted to that of Leonard Bruce Treloar, Senior Constable of Police, relating to his observation of the course of the vehicle driven by the appellant at about 9.38 a.m. on Tuesday, 19 August 1986 in a southerly direction on Namatjira Drive, Waramanga. The evidence in the appellant's case consisted of that of the appellant himself and that of a passenger. The only matter in defence raised by the evidence in the appellant's case was that the speed of the vehicle at no time exceeded 40 kilometres per hour. That too was the sole issue raised in cross-examination of Senior Constable Treloar. The Magistrate clearly preferred the evidence of the Constable and rejected that of the appellant and his witness, as he was entitled to do. The appellant does not seek to overturn the decision of the Magistrate on that issue.

4. However, on the hearing of the appeal, the question raised for the first time is whether the evidence before the Magistrate, and which is the only evidence before me, was such that I can be convinced beyond reasonable doubt that the appellant drove "in a school zone ... from the direction which the school zone sign in relation to that zone is facing" as alleged in the information.

5. The whole of the evidence relating to that aspect of the case is contained in the following passage taken from the evidence of Senior Constable Treloar:

"I observed the vihicle appeared to be exceeding the
speed limit. I estimated it between 60 and 70 kilometres an hour. I
positioned my motor cycle to the rear of the utility, approximately
30 metres, and kept that distance constant whilst the vehicle
entered the school zone adjac ent to St. John Vianney's Catholic
Primary School. I checked the speed of the vehicle through the -
until I left the school zone which is approximately 270 metres, to be
68 kilometres an hour. I consequently stopped the vehicle and spoke
to the driver and asked for a reason for exceeding the 40 kilometre
school speed ne. He stated, "I didn't realize". I then obtained
certain particulars. I said, "The facts of the matter will be
reported, do you realize?" He said, "Yes"."

6. Mr. Byrne, who appears for the appellant, has submitted that there w as no evidence as to the existence or presence of a school zone sign, and that it was essential that the prosecution prove that the appellant drove from the direction which the school zone sign in relation to that zone was facing.

7. The definition of "school zone" encompasses two alternatives. The first, under paragraph (a) relates to a school zone in a single street. The other, under paragraph(b), relates to a school zone, part of which lies in one street and another part of which lies in another street, the two streets forming an intersection. In either case the boundaries of the school zone are defined at one extremity of the school zone by a school zone sign which is placed in such a way as to face oncoming traffic about to enter the school zone, and at the other extremity by a standard speed limit sign facing in the same direction.

8. In the present case the alleged school zone was in a single street, Namatjira Drive, Waramanga and, according to the definitions in s.147(4), it would be necessary in order to prove the existence of a school zone to show that there was for southward bound traffic a school zone sign facing north, that sign marking the northern boundary of the zone, and a standard speed limit sign also facing north, that standard speed limit sign marking the southern boundary of the zone. There was, however, no evidence at all of the presence or erection of any such signs. The Magistrate took the view that as the Constable had stated in his evidence that the appellant's vehicle entered what he called "the school zone adjacent to St. John Vianney's Catholic Primary School" and, by inference, left that school zone, a distance of some two hundred and seventy metres, then the evidence should be taken to carry the further inference that the school zone referred to was delineated by appropriate school zone signs. The respondent prosecutor submitted that that view was correct.

9. The difficulty with this submission is that the question whether the appellant drove in a school zone is central to the determination of the charge against him. The statement by the witness that the appellant entered the "school zone" was, unfortunately, not objected to at the time it was given. It was only during the course of the Magistrate delivering his reasons for his decision that counsel drew attention to the absence of direct evidence as to school zone signs. There was no application on the part of the prosecution to re-open its case. On the state of the evidence, in my view, it was left to the Magistrate as a tribunal of fact to decide whether he was satisfied as to all the essential ingredients of the offence, including those ingredients relating to school zone signs, and the Magistrate took the view that that matter was proved by inference from the statement that the vehicle entered "the school zone adjacent to St. John Vianney's Primary School".

10. The question on this appeal, however, is not whether the Magistrate was entitled or not entitled to find as he did, but whether I am satisfied, exercising an independent judicial mind, on the evidence before the Magistrate. It is unfortunate that the point as to inadequacy of evidence was not properly ventilated before the Magistrate, and that the point of the appeal turns on evidence which was strictly inadmissible and which must have been rejected if objected to. The question whether the defendant entered a school zone is a question of mixed fact and law. Where such and time-saving course. Where such matters are in dispute, however, it is impermissible for such evidence to be admitted. It is a matter of regret that the manner in which the evidence was led and not objected to in the present case must have led the Magistrate to a conclusion that the question of whether or not the defendant entered and left a school zone was not in dispute. In obvious contrast that question is clearly in dispute on this appeal and I have to decide how I should as a tribunal of fact evaluate and weigh the evidence which I regard as inadmissible. Although the only issue raised in defence before the Magistrate was whether or not the appellant was exceeding the speed limit, on this appeal I have to be satisfied that the appellant was driving in a school zone, and that he drove "from the direction which the school zone sign in relation to that zone is facing". There is simply no direct evidence at all as to the erection or presence of a school zone sign, and the statement of the constable, unobjected to, that the appellant entered and left a school zone is not, in my view, sufficient. I take by way of analogy a hypothetical case of a person charged with driving under the influence of liquor. The defendant may raise an alibi as a defence, and the only defence, and not take the course of objecting to opinion evidence from a witness led by the prosecution that the person observed driving the vehicle was "under the influence of liquor" even though the witness does not give supporting factual evidence of the observations which led him to the conclusion that that person was so affected. A court rejecting the only matter raised by way of defence, namely, alibi, would not be compelled to accept the evidence of the conclusion by the witness that the defendant was affected by liquor and might take the attitude that unless that opinion evidence is supported by the facts leading to the conclusion then the charge is not made out. I take that attitude in this case. The conclusion of the constable that the defendant entered and left a school zone is not supported by facts relating to the erection and presence of a school zone sign, without which it cannot be concluded beyond reasonable doubt that the Constable was correct when he stated that the area where the defendant drove was a school zone. Furthermore, there can be no inference relating to the direction which such school zone sign, if it was there at all, was facing. For good measure, I would also say that there was insufficient evidence to support a conviction on another matter essential to proof of the offence, namely that the appellant drove during a "prescribed period". A "prescribed period" is defined to mean a period commencing at 8 a.m. and ending at 4 p.m. on a day on which the school located in proximity to that zone (or if two or more schools are so located either or any of those schools) is open for the attendance of scholars. There was no evidence as to whether the school in question in this case was open for the attendance of scholars. Whether I should take judicial notice of school calendars was not argued.

11. It is an unsatisfactory situation where a defendant to a criminal charge declines to object to inadmissible evidence called before the Magistrate, and then seeks to succeed in an appeal because of what really amounts to the inadmissibility of that evidence. That aspect can be taken care of by depriving the appellant of his costs of the appeal.

12. The appeal is upheld. The conviction in the Magistrates Court, together with the consequent fine and orders for suspension of driving licence and disqualification from holding or obtaining a driving licence are set aside. Each party is to bear his own costs.