The Roads and Traffic Authority of NSW v Lian [2009] NSWSC 146 (16 March 2009)

Last Updated: 18 March 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
The Roads and Traffic Authority of NSW v Lian [2009] NSWSC 146


JURISDICTION:


FILE NUMBER(S):
2008/15151

HEARING DATE(S):
6 March 2009

JUDGMENT DATE:
16 March 2009

PARTIES:
The Roads and Traffic Authority of New South Wales
David Yin Wei Lian

JUDGMENT OF:
Price J

LOWER COURT JURISDICTION:
Local Court

LOWER COURT FILE NUMBER(S):


LOWER COURT JUDICIAL OFFICER:
Pierce LCM

LOWER COURT DATE OF DECISION:
15 July 2008


COUNSEL:
Mr T Lynch (Applicant)
Submitting appearance (Respondent)

SOLICITORS:



CATCHWORDS:
Traffic law
appeal from Local Court
speed camera
school zone
elements of offence

LEGISLATION CITED:
Australian Road Rules r 20, r 23, r 23(2)(a)
Crimes (Local Courts Appeal and Review) Act 2001
s 56(1)(c)
Criminal Code (Cth) s 9.2
Road Transport (General) Act 2005 s 46, s 47(5)
Road Transport (General) Regulation r 167
Road Transport (Driver Licensing) Regulation
Road Transport (Safety and Traffic Management) Act s 34,
s 47(3)(c), s 47(5)

CATEGORY:
Principal judgment

CASES CITED:
Roads and Traffic Authority of New South Wales v Hugh [2008] NSWSC 1426

TEXTS CITED:


DECISION:
1. The appeal is upheld. 2. The decision of the Local Court at Burwood, constituted by Pierce LCM on 15 July 2008 dismissing a Court Attendance Notice issued to David Yin Wei Lian on 12 March 2008 be set aside. 3. The matter be remitted to the Local Court to resume the hearing of the matter in the Court Attendance Notice according to law. 4. No order as to costs.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

PRICE J

16 March 2009

2008/15151 The Roads and Traffic Authority of NSW v

David Yin Wei Lian

JUDGMENT

1 HIS HONOUR: The issue in this appeal is what must be established by the prosecution when it alleges that an offence of speeding was committed whilst the driver was in a school zone.

2 On 28 September 2007 at 08:55:36am photographs were taken by a speed camera of motor vehicle registered number AOQ 30T proceeding in a westerly direction along the Hume Highway, Bankstown. The speed was 53 km/h. The defendant was the registered owner and driver of the vehicle.

3 Proceedings were commenced by the Roads and Traffic Authority of New South Wales (RTA) against the defendant. The Court Attendance Notice (CAN) described the alleged offence as “Exceed Speed Limit 15 km/h and under – Camera Detected – School Zone.” The date and time of the offence was stipulated as being at 8:55:36am on 28 September 2007. The place of the offence was identified as being the Hume Highway, Bankstown. What was described in the CAN as “Short Particulars” were provided and may be summarised as follows:

(i) Camera recorded speeding offence;

(ii) Speed travelled 53 KM/H;

(iii) Speed limit 40 KM/H;

(iv) Vehicle registration AOQ 30T travel away from camera;

(v) Between Jacobs Street and Stacey Street

4 The CAN specified that Australian Road Rules, Rule 20 was the statutory provision describing the offence. Rule 20 which falls within Part 3 of the Australian Road Rules was at the time of the offence relevantly as follows:

“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.”

5 Following a plea of not guilty by the defendant, the proceedings were heard in the Local Court at Burwood on 15 July 2008 before Pierce LCM. The prosecution tendered three photographs of the vehicle taken by the speed camera, certificates pursuant to s 230 of the Road Transport (General) Act 2005 and certificates pursuant to ss 46 and 47(5) of the Road Transport (Safety and Traffic Management) Act. Ms Gentles, a prosecution officer, gave evidence that the days between 15 July 2007 and 28 September 2007 were government gazetted school days. A copy of the Education Gazette, however, was not tendered. It appeared from further cross-examination that the witness was relying upon information provided to her by her manager.

6 The defendant in his evidence did not dispute that he was driving the vehicle at the time, place and speed alleged but testified to his belief that it was a school holiday. His belief was founded upon a conversation which he had with a friend who had told him that his children would be on “holidays from Friday the following week.” The friend was available to corroborate what was said. He recounted a conversation which he had with the defendant on Saturday 22 September 2007 during which he told the defendant that his boys were going on vacation on the following Friday 28 September 2007. This was the date of the alleged offence. It seems, however, that the friend’s children attended a private school.

7 During his evidence, the defendant said that he had driven past a school zone sign, however, he did not notice two orange flashing lights. He was aware that it was a school zone.

8 The Magistrate dismissed the CAN for two reasons. His Honour determined that the RTA had failed to establish that the offence incurred in a school zone which was indicated by a school zone sign and an end school zone sign. For this finding, it appears that his Honour relied upon Pt 3 r 23(2)(a) of the Australian Road Rules which provides:

“A School Zone is:

(a) if there is a school zone sign and end school zone sign, or a speed-limit sign with a different number on the sign, on a road and there is no intersection on the length of road between the signs – that length of road.”

9 The further reason for dismissal was that the RTA had not adduced evidence that it was a school day on the day that the defendant was alleged to have been speeding.

10 By a Summons filed in this Court on 30 September 2008, the RTA seeks orders that his Honour’s order of dismissal be set aside and that the hearing of the proceedings in the CAN be resumed by the Local Court according to law. The RTA contends that his Honour erred:

(a) in directing [himself] that the prosecution was required to prove that the date of the offence was a school day;

(b) in directing [himself] that the prosecution was required to prove that the offence occurred in a school zone, indicated by a start and end sign; and

(c) in not directing [himself] that the speed limit that applied to the length of the street was the speed limit recorded in the photograph.

11 The appeal is brought pursuant to s 56(1)(c) of the Crimes (Local Courts Appeal and Review) Act 2001. Such appeals are confined to a question of law. The defendant submits to the orders of the Court.

12 Upon the appeal, the RTA relied upon Roads and Traffic Authority of New South Wales v Hugh [2008] NSWSC 1426 in which Fullerton J considered an alleged speeding offence of an almost identical nature to the present case.

13 Fullerton J said at [10]:

“Despite the fact that the Court Attendance Notice described the offence by reference to the excess of speed being detected by a speed camera “in a school zone”, I am satisfied, on a proper construction of ARR 20 as the provision under which the defendant was charged, that the prosecution was not obliged to prove that he exceeded the speed limit while he was travelling in a school zone. Quite simply, to state that the offence occurred “in a school zone” in the description of the offence in the Court Attendance Notice was otiose...”

14 And further at [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. (underlining added)

15 In my opinion what was said by her Honour is plainly correct. The contravention which is alleged is a breach of Rule 20 of the Australian Road Rules and the location of the speeding offence in or outside a school zone is not an element of that offence.

16 As Fullerton J explained, the rules about speed limits which appear below Note 1 to rule 20 of the Australian Road Rules do not create separate offences. The function of rule 23 – speed limit in a school zone her Honour said at [14] was to provide:

“...that the speed limit applying to a driver for any length of road in a school zone is the number of kilometres per hour indicated by the number on the school zone sign on a road or the road into the zone.”

17 The location of a speeding offence in a school zone is also relevant for purposes unassociated with the proof of the offence of speeding such as the amount of the penalty: r167 of the Road Transport (General) Regulation 2005 or the loss of demerit points: Sch 1 Road Transport (Driver Licensing) Regulation.

18 There was evidence in the present case that the applicable speed limit was 40 km/h and that the defendant was driving in excess of that speed. On the three photographs taken by the speed camera which had been tendered appeared the following:

Speed Limit: 40km/h

Vehicle Speed: 53 km/h

19 Each of the photographs was “prima facie evidence of the matters shown or recorded on the photograph” : s 47(3)(c) of the Road Transport (Safety and Traffic Management) Act 1999. The certificate under s 47(5) certified that on inspection the approved camera recording device was found to be operating correctly. The defendant testified that the speedometer of his vehicle was showing between 50 km/h and 55 km/h.

20 In my respectful opinion, his Honour was in error in determining that the prosecution was required to prove that the offence occurred in a school zone or on a school day. I hasten to add that his Honour did not have the benefit of the judgment in Roads and Traffic Authority of New South Wales v Hugh which was delivered after the present matter was determined.

21 An offence against r 20 of the Australian Road Rules is one of strict liability: r 34 of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation. Because of his reasons for dismissing the CAN, the Magistrate did not consider whether the offence was committed under mistake of fact: s 9.2 of the Criminal Code (Cth). This is a matter for his Honour’s further consideration.

Orders

1. The appeal is upheld.

2. The decision of the Local Court at Burwood, constituted by Pierce LCM on 15 July 2008 dismissing a Court Attendance Notice issued to David Yin Wei Lian on 12 March 2008 be set aside.

3. The matter be remitted to the Local Court to resume the hearing of the matter in the Court Attendance Notice according to law.

4. No order as to costs.

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LAST UPDATED:
16 March 2009