New South Wales Supreme Court CITATION : Roads and Traffic Authority of New South Wales v Barwick [2009] NSWSC 374 HEARING DATE(S) : 10/12/08 JUDGMENT DATE : 14 May 2009 JURISDICTION : Common Law JUDGMENT OF : Hislop J at 1 1. The appeals in respect of the proceedings in the Local Court at Sutherland are upheld. DECISION : 2. The orders of the Local Court in those proceedings are set aside. 3. Those proceedings are remitted to the Local Court at Sutherland for further determination. 4. Each party is to bear its or her costs of the appeal. CATCHWORDS : APPEAL– local court decision – speeding offences – mistake as to applicable speed limit – held mistake of law not mistake of fact Australian Road Rules LEGISLATION CITED : Crimes (Appeal and Review) Act 2001 Road Transport (Safety and Traffic Management) (Road Rules) Regulation CATEGORY : Principal judgment Ostrowski v Palmer [2004] HCA 30 CASES CITED : Proudman v Dayman (1941) 67 CLR 536 Roads and Traffic Authority of NSW v O'Reilly [2009] NSWSC 134 PARTIES : The Roads and Traffic Authority of New South Wales (Plaintiff) Gayle Marie Barwick (Defendant) FILE NUMBER(S) : SC 14293/08 COUNSEL : L Goodchild (Plaintiff) SOLICITORS : Hunt and Hunt Lawyers (Plaintiff) Nyman Gibson Stewart Solicitors (Defendant) LOWER COURT JURISDICTION : Local Court LOWER COURT JUDICIAL OFFICER : Schurr LCM LOWER COURT DATE OF DECISION : 30/06/2008 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HISLOP J 14 May 2009 14293/08 ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v BARWICK JUDGMENT Introduction 1 The defendant was charged with exceeding the speed limit contrary to Australian Road Rule 20 on two occasions whilst driving north on King Georges Road, Beverly Hills between Stoney Creek Road and Edgbaston Road. The alleged offences occurred on 20 July 2007 and 14 August 2007 respectively. Each was camera detected. On the first occasion the defendant was driving at 71km/h and on the second occasion at 70 km/h. The speed limit was 60 km/h. 2 The charges were heard in Sutherland Local Court on 30 June 2008. The defendant accepted the applicable speed limit was 60 km/h and that she exceeded that limit as alleged. Her defence was that she honestly and reasonably made a mistake, in that she believed the applicable speed limit was 70 km/h. The learned magistrate accepted the defendant honestly and reasonably made that mistake and dismissed both charges. 3 The plaintiff has appealed by summons to this court pursuant to the Crimes (Appeal and Review) Act, 2001 s 56(1)(c) which provides that: "The prosecutor may appeal to the Supreme Court against … (c) an order made by a Local Court dismissing a matter the subject of any summary proceedings… but only a ground that involves a question of law alone." 4 The appeal grounds in the summons asserted that the Local Court erred in: - concluding that a mistake as to the speed limit applicable to a length of road is a mistake of fact; not concluding that the speed limit applicable to a length of road is a mistake of law; directing itself that the Rule in Proudman v Dayman (1941) 67 CLR 536 was available; directing itself that there was no evidence that the defendant would have been exposed to any 60 km/h speed limit sign north of Stoney Creek Road on King Georges Road at Beverly Hills; finding that there was evidence capable of establishing that the defendant's mistake about the speed limit was reasonable; and in not finding that there was no evidence capable of establishing that the defendant's mistake about the speed limit was reasonable. Facts 5 The defendant gave evidence that for over seven years she had followed the same route from her home to her place of work. This had involved her driving west along Stoney Creek Road (signposted 60 km/h speed limit), turning right at its intersection with King Georges Road and then travelling north along King Georges Road to The Northern Road. She described the area where the offences occurred as a heavy restaurant area coming into a cinema area. 6 The defendant agreed that once she turned right at King Georges Road there was no signage indicating speed limits until after she had passed the relevant speed camera. North of the speed camera there was a 60 km/h speed sign. She said she did not know of the 60 km/h sign until after the offences as "you can't see it when you are driving as the trees are all over it". She said of the sign "I don't even know how long it's been there for." Some distance further north there was a 70km/h speed sign and the figure 70 was painted on the road surface at that point. 7 The defendant gave evidence "I've always believed King Georges Road being a main artillery road, was a 70 kilometre zone." 8 The defendant also gave evidence: …"when I'm coming from Sutherland area, coming over Tom Ugly's Bridge, heading north into the city where King Georges Road first starts it's 70 along there… Q. How often do you do that trip? A. Well, not once a week… well actually it has been when I've been coming down here to see specialists with my son and it's 70 along there and then I turn off when I'm going to Hurstville so I don't proceed any further along from that area down into Beverly Hills. I actually turn off to go to the Hurstville area and that's 70 along there. So King Georges Road to my knowledge was always 70 and it would be 70 after Beverly Hills." 9 The plaintiff tendered a site diagram of the intersection of King Georges Road and Stoney Creek Road. The diagram had a commencement date of 9 July 2007. The speed camera was depicted 286 metres north of the intersection and was preceded by three speed camera warning signs (one incorporating a school zone speed limit and one a school zone sign). All of these were to the north of the intersection. The plaintiff denied the presence at the time of the alleged offences of these signs. The diagram also showed that 229 metres south of the intersection on the western side of the road there was a 60 km/h speed sign facing northbound traffic in King Georges Road. Her Honour's findings 10 Her Honour found: (a) there was no evidence from which she could conclude on what date the 60 km/h sign north of the intersection was installed; (b) the plaintiff's evidence was that usually she drove along Stoney Creek Road and then turned right to head north along King Georges Road, there was no 60 km/h speed sign; (c) she was satisfied the school zone signs and camera signs were in place prior to the offences as is noted on the plan and that the plaintiff was not a good observer as she did not observe those signs; (d) "if I'd been able to be satisfied that 60 k…there were 60 km/h signs north of King Georges…north of Stoney Creek Road on King Georges Road, I would have been satisfied that she must have known there was a variety of speed limits along King Georges Road. However, there's no evidence for me that there are a variety of signs apart from the 40 km/h zone and there's no evidence before me that any speed limit change from 70 to 60 in that area." (e) "It's been Mrs Barwick's evidence that it used to be or it's always been 70 km/h in that part of the road, there's no evidence before me that she would have been exposed to any 60 km/h signs north of Stoney Creek Road for the dates in question, so on that basis I've been satisfied that she did make an honest and reasonable mistake about the speed limit on King Georges Road and I dismiss those two charges." The Australian Road Rules 11 The Australian Road Rules relevantly provided: r 20: "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." r 21.1 "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. r 21.3 "A speed limit sign 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… r 342 (1) "A traffic sign (except a parking control sign) that applies to a length of road and to drivers applies to a driver driving on the length of road if the driver is driving in the same direction as a driver on the road who faces the sign before passing it. (3) The traffic sign applies to the driver or pedestrian even though the driver or pedestrian does not pass the sign. 12 The Australian Road Rules were repealed in 2008. However they were in force at the time of the alleged offences by virtue of cl 6 of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999. Determination 13 The primary issue on appeal was whether the defendant's mistake as to the speed limit was a mistake of fact or a mistake of law. 14 It was common ground that if the mistake was one of law the defence of honest and reasonable mistake was not available to the defendant and the appeal should be upheld. 15 The plaintiff submitted the defendant's error was one of law. 16 It relied upon the decision of the High Court in Ostrowski v Palmer [2004] HCA 30 to support that submission. In that case the defendant was a licensed commercial rock lobster fisherman. He fished for rock lobsters at a place where such fishing was prohibited by regulation. He was unaware of the prohibition. He was charged with breach of the regulation and contended he had made an honest and reasonable mistake. The High Court unanimously held the defendant's mistake was one of law. Gleeson CJ and Kirby J observed at [6]: "He was fishing where he intended to fish; he did not know there was a law against it". McHugh J at [49] observed: "his mistake was that he believed that the law of Western Australia did not prohibit or regulate fishing for rock lobsters in that area. His mistaken belief was not a mistake as to a fact or "stated thing", but a mistake as to the operation of the law. It was ignorance of the law that caused him to make the mistake that he did." 17 In the present case the defendant drove at a speed intended but did not know there was a law against it. It was ignorance of the speed limit that caused her to make the mistake which she did. In my opinion, applying Ostrowski, the mistake was one of law. 18 The defendant submitted that Ostrowski was distinguishable. In that case the prohibition was created by regulation. In the present case the Australian Road Rules required, a speed limit zone be established through a series of factual preconditions (Australian Road Rules 21, 315 - 316, 322). Each of these requirements was a factual matter and a mistaken belief as to any of them was a mistake of fact. This was to be distinguished from the situation where the conduct was proscribed by a regulation or a gazette in which case the error would be one of law and the defence of honest and reasonable mistake would not be available. 19 In the present case the speed limit was created by the presence of the 60 km/h speed sign facing northbound traffic and located 229 metres south of the intersection (Australian Road Rule 21). That speed zone continued until the 70 km speed sign north of the speed camera was reached (Australian Road Rule 21.3). The speed limit was validly created for that length of the roadway and was binding on the defendant, even if, as appeared from the defendant's evidence, she had not driven previously on that section of the road (see Australian Road Rule 342). 20 The speed limit was validly created, the contrary was not argued. Once created the plaintiff was bound by that speed limit. Her mistake was one of law. 21 The plaintiff also relied upon a comment made by Callinan and Heydon JJ in Ostrowski at [90] that: "…in the circumstances [the defendant] could be no less guilty than a motorist who has done everything reasonably possible to ascertain the speed limits on the stretch of roadway along which he is to travel but having failed to do so, in one or more instances, exceeds those limits because he was unaware of them." 22 The defendant submitted that: "it is apparent from the factual scenario described in that passage what is being referred to by the Court is a situation in which a motorist does not hold a positive belief about the speed limit but is, in fact, ignorant of the speed limit and therefore cannot possibly be relying on a defence of mistake. It is important to appreciate that this distinction between a motorist who simply fails to properly ascertain the applicable speed limit is to be distinguished from a motorist who holds a positive belief, albeit mistaken, about what the speed limit is applying to that stretch of road." In my opinion this is a distinction without a difference as in the final analysis the defendant in the present case was ignorant of the speed limit. I accept that the analogy drawn by Callinan and Heydon JJ supports the plaintiff's submissions. 23 The plaintiff also relied upon the recent decision of Schmidt AJ in Roads and Traffic Authority of NSW v O'Reilly [2009] NSWSC 134 where, in similar circumstances, her Honour, relying upon Ostrowski, held that a mistaken belief as to a speed limit was a mistake of law. I respectfully agree with her Honour's judgment. 24 For the reasons given I uphold the appeal. It is accordingly unnecessary for me to consider the other grounds of appeal raised in the summons. 25 As a general rule costs follow the event. However, as the plaintiff did not argue the issue upon which it succeeded in the Court below it seems to me the appropriate costs order is that each party bear their own costs of the appeal. Orders 26 I make the following orders: (1) The appeals in respect of the proceedings in the Local Court at Sutherland are upheld. (2) The orders of the Local Court in those proceedings are set aside. (3) Those proceedings are remitted to the Local Court at Sutherland for further determination. (4) Each party is to bear its or her costs of the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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