New South Wales Supreme Court CITATION : The Roads and Traffic Authority of New South Wales v Parvez [2009] NSWSC 274 HEARING DATE(S) : 8 April 2009 JUDGMENT DATE : 22 April 2009 JUDGMENT OF : Schmidt AJ 1. The appeals are upheld, the Local Court's orders are set aside and the Local Court resume hearing the matter. DECISION : 2. The defendant 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 - school zone - evidence - appeal upheld - matter returned to Local Court for further hearing - costs - section 6 of the Suitors Fund Act 1951 Australian Road Rules LEGISLATION CITED : Crimes (Appeal and Review) Act 2001 Road Transport (Safety and Traffic Management) Act 1999 Suitors Fund Act 1951 CATEGORY : Principal judgment Burringbar Real Estate Centre Pty Limited v Anthony John Ryder & Ors [2008] NSWSC 891 CASES CITED : 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 Md Masud Parvez - 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 : 25 August 2008 - 8 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SCHMIDT AJ Wednesday, 22 April 2009 16341/08 THE ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v MD MASUD PARVEZ 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. Two court attendance notices issued to Mr Masud Parvez were dismissed. Each notice alleged a speeding offence. Mr Parvez did not appear at the hearing of the appeal, but had earlier filed an outline of defence, which the plaintiff tendered. After the hearing, in accordance with leave granted at the hearing, Mr Parvez filed a further submission, explaining how it came to be that he did not appear at he hearing and making submissions as to the consequences of any order made in favour of the appellant. I have considered all of these submissions, in the conclusions I have reached. 2 Mr Parvez was charged with two offences which it was alleged occurred in the same school zone. On both occasions, the court attendance notice specified that the offence was one under Australian Road Rule 20. It described the offence with which he was charged as being a camera recorded speeding offence; exceeding the speed limit by 15 kilometres per hour and under; while driving at 50 kilometres per hour, as well as particulars of his vehicle and the place at which the offence was alleged to have been committed. 3 There was no issue that the speed limit at the times in question was 40 kilometres per hour, or that Mr Parvez was driving in excess of that speed. Mr Parvez's defence of the charges related to the circumstances in which he came to have overlooked the sign advising of the 40 kilometre speed limit and changes made to the signage, after the time of the two alleged offences. 4 His Honour's decision was very shortly given. He appears to have taken the view that Rule 21 of the Australian Road Rules had the effect that evidence of signage at the beginning of the school zone was not sufficient to establish the offences charged. Evidence of signage indicating where the zone ended was also required, if the offence was to be proven. 5 It was the plaintiff's case that his Honour had misdirected himself in each case as to the matters constituting the elements of the offences charged, which led him to require proof of matters which on the true construction of the Rules required no proof. Consideration 6 Each charge was brought under Rule 20 of the Australian Road Rules, which provided: 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 provided 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 Rule 23 of the Australian Road Rules deals with school zones. It provided: 23 Speed-limit in a school zone (1) 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. Note 1 Length of road is defined in the dictionary. Note 2 A school zone sign may indicate that it applies only at certain times, on certain days or in certain circumstances — see rules 317 and 318. Note 3 This subrule applies to road-related areas in the school zone — see rule 11 (2). (2) A school zone is: (a) if there is a school zone sign and an 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; or (b) if there is a school zone sign on a road that ends in a dead end and there is no intersection, nor a sign mentioned in paragraph (a), on the length of road beginning at the sign and ending at the dead end — that length of road; or (c) in any other case — the network of roads in an area with: (i) a school zone sign on each road into the area, indicating the same number; and (ii) an end school zone sign, or a speed-limit sign indicating a different number, on each road out of the area. Note Intersection is defined in the dictionary. 12 In Roads and Traffic Authority of New South Wales v Hugh [2008] NSWSC 1426, Fullerton J also had to consider a school zone speeding offence, as did Price J in Roads and Traffic Authority of New South Wales v Lian [2009] NSWSC 146. Their Honours both concluded that reference to a 'school zone' in a court attendance notice was otiose. The prosecutor did not have to prove where the school zone ended. What had to be proven in relation to an offence charged under Rule 20, was the speed limit that applied to the particular length of road where the offence was allegedly committed. Fullerton J observed at [11] and [14]: 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. 14 For the purposes of this appeal Rule 21 and Rule 23 are relevant. The Rules do not however create separate offences. Rule 21 provides that 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. Rule 23 provides 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. 13 In this case Mr Parvez did not dispute that the speed limit at the place of the alleged offences with which he was charged, a school zone, was 40 kilometres per hour and that he was driving in excess of that speed. It is apparent on the approach in both Hugh and Lian, with which I respectfully agree, and, consistently with the requirements of the Australian Road Rules, that in the case of these offences, the prosecutor did establish the essential elements of the offences with which Mr Parvez had been charged. In fact, they were conceded. 14 The 40 kilometre speed limit notified to drivers at the commencement of the school zone applied to the length of road after the sign, until the speed limit was thereafter changed, by an end school zone sign, or a speed limit sign with a different number, or a dead end, as Rule 21(2) contemplated. In terms of the offence created by Rule 20, what had to be proven was that Mr Parvez exceeded the speed limit applicable to the length of road at which the offence was alleged to have occurred. That the speed limit later changed, when the school zone ended, was irrelevant to the question of whether an offence had been committed at the point of the road to which these charges related. 15 The speed limit which applied to Mr Parvez for the length of road where he was driving, was not in question. There was evidence of the signage, as well as evidence of what the speed camera had captured. Mr Parvez 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. The dismissal of each charge flowed from his Honour's view that the prosecutor also had to establish where the speed limit later changed, when the school zone ended. That was not an element of the offence charged and was not otherwise required to be proven by Rules 21 and 23 of the Australian Road Rules, or otherwise. 16 As I earlier indicated, I have considered the written submissions filed by Mr Parvez. They do not raise matters which go to the questions raised by the appeal, other than in relation to the costs of the appeal, to which I will return, but rather raise matters relevant to be considered by the Local Court, which must consider the charges further. I note that at the hearing the Court was also advised that Mr Parvez has made representations to the plaintiff in similar terms, which are presently being considered by the plaintiff. Those matters do not arise for this Court's determination. 17 It follows that His Honour misconstrued the relevant provisions of the Australian Road Rules. On the evidence there is no question that the offences charged were proven. The appeal must be upheld and the matter be returned to the Local Court for further hearing. 18 As to costs, Mr Parvez's case was that he could not afford to pay the costs of the appeal, which would give rise to substantial hardship for he and his family. That situation will be accommodated by the appellant's submission that an order should be made in favour of Mr Parvez, under the Suitors Fund Act 1951. 19 Consistent with the appellant's submissions, I am satisfied that this case is an appropriate one for orders contemplated by s 6 of the Suitors Fund Act to be made in favour of Mr Parvez. (See the discussion of Hall J in Burringbar Real Estate Centre Pty Limited v Anthony John Ryder & Ors [2008] NSWSC 891.) Orders 20 For the reasons given, I make orders in terms sought by the appellant, namely that: 1. The appeals are upheld, the Local Court's orders are set aside and the Local Court resume hearing of the matter. 2. The defendant 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.