District Court New South Wales Medium Neutral Citation: Robinson v RMS [2016] NSWDC 277 Hearing dates: 15 February 2016 Date of orders: 15 February 2016 Decision date: 15 February 2016 Jurisdiction: Criminal Before: Neilson DCJ Decision: Appeal dismissed Appellant to pay Respondent's costs of $6,118 Catchwords: CRIMINAL LAW – Road Transport Legislation – Costs – Appeal against conviction and sentence – Conviction appeal abandoned – Appeal against sentence dismissed – Application by respondent for costs CRIMINAL LAW – Speeding offence – Camera detected – Driving at 60kph in 50kph zone – Penalty notice for $109 – Contested by motorist – Motorist sought to argue, unsuccessfully that speed camera did not comply with National Measurement Act 1960 (Cth) – Conviction recorded and motorist fined $109 and ordered to pay RMS's costs of $1,771 – Appeal initially limited to imposition of costs order but appellant sought and granted leave to appeal against conviction – Appeal against conviction later abandoned – Appeal against sentence dismissed – Appellant to pay RMS's costs of $6,118 Legislation Cited: Crimes (Appeal and Review) Act 2001 Cases Cited: Anastasiou v The Police [2013] SASC 112 Crabbe v The Queensland Police Service [2013] QDC 122 Director General of Department of Agriculture v Temmingh [2003] NSWSC 598 Kuipers Lloyd v The Police [2013] SASC 137 Latoudis v Casey (1990) 170 CLR 534 Ohn v Walton (1995) 36 NSWLR 77 at 79 Category: Principal judgment Parties: Garry Robinson (Applicant) Roads & Maritime Services (NSW) (Respondent) Representation: In person (Applicant) Mr A Wozniak (NSW) (Respondent) File Number(s): 2015/75227 Publication restriction: No Judgment 1. HIS HONOUR: This is an application under s 28(3) of the Crimes (Appeal and Review) Act 2001 by a successful respondent in an appeal under that Act for costs against the unsuccessful appellant. The appellant, Mr Garry Robinson, I shall refer to hereafter as the motorist. The respondent to the appeal is Roads and Maritime Services to whom I shall refer hereafter as RMS. 2. On Sunday, 7 December 2014 the motorist was driving his motor vehicle, a silver Subaru panel van, registered number BIX 09E, on Macpherson Street, Mosman. On that section of Macpherson Street, between Montague Road and Ourimbah Road, an RMS speed camera detected the motorist's car being driven at 60 kilometres per hour in a zone where the speed limit was 50 kilometres per hour. There is no dispute that not only was the motorist the owner of the Subaru panel van, but he was also its driver at the relevant time. The offence is alleged to have occurred at 11.11am. 3. On 12 December 2014 the Office of State Revenue sent a penalty notice to the motorist imposing a penalty of $109. The notice issued on 12 December 2014 was due to be paid by 9 January 2015. The motorist sent a lengthy letter of two and a half pages to the State Debt Recovery Office (SDRO) on 4 January 2015. On 29 January 2015 the SDRO advised the motorist that the penalty notice had, in its view, been properly issued and requested the motorist to pay the penalty of $109. A reminder notice was sent on 30 January 2015 requiring payment on 27 February 2015. 4. The reminder notice caused the motorist to send a further one and a half pages contending that his original objection was valid and enclosing a statutory declaration, again advancing his reasons why the original penalty notice had not been correctly issued. The statutory declaration contains these allegations: "The claim by SDRO was denied as it was completely unsubstantiated and SDRO were directed to provide within 28 days a sworn affidavit and supporting documentation substantiating that the Speed Measuring Device that had been used to allegedly record the speed of my automobile on 7 December 2014 conforms to the National Measurement Act 1960 (Cth) in respect of its use for making measurements for any legal and monetary purpose, or that SDRO had any lawful claim against me, or that I committed any crime or offended/broke any law. As SDRO, being fully aware of the terms of my objection, failed to provide any documentary evidence in support of their claim within the time period specified, they have defaulted in respect of their claim and have admitted and agreed to the terms of the objection tendered, notwithstanding any unsubstantiated denials that may be made by them that the speed measuring radar device does not comply with the National Measurement Act 1960 when used for any legal purpose." 1. On 2 March 2015 SDRO advised the motorist that it was unable to reconsider his second request for a review of the penalty notice. A court attendance notice was served on the appellant on 12 March 2015 requiring him to appear before the Downing Centre Local Court on 28 April 2015. The court attendance notice provides the following information: "Date & Time of Offence: 07/12/2014 11:11:59am Place of Offence: Macpherson Street, Mosman Short Particulars: Camera recorded speeding offence - exceed speed limit - ten kilometres and under detected by an approved speed measuring device and recorded by an approved camera recording device within the meaning of the Road Transport Act 2013. Speed Travel (kilometre): 60 km/h; Speed Limit (km); 50 km/h; Direction of travel: Towards camera; Cross Streets: Between Montague Road and Ourimbah Road; Vehicle registration: BIX 09E. Statutory Provision Describing Offence: Road Rules 2014 r 20." 1. The Court Attendance Notice eventually came on for hearing before Mr W Pierce LCM, at the Central Local Court on Friday, 31 July 2015. The motorist represented himself and the RMS was represented by Mr Wosniak. The case for the RMS was purely documentary. There was a certificate issued under s 257 of Road Transport Act 2013 and under s 221 of Motor Accidents Compensation Act 1999 certifying that the motorist was the registered operator of motor vehicle registered number BIX09E, the certificate fully describes the important question.There was a certificate under s 137 of The Road Transport Act 2013 certifying that the REDFLEX SPEED Infringement Detection system was an approved traffic enforcement device, that is approved for speed measurement, providing the serial number of the device, providing its location on McPherson Street Mosman and providing its code. That certificate bears the date 9 September 2014. There was a certificate under s 138(2) by an appropriate inspection officer certifying that on 3 December 2014 at 10.58am he carried out an inspection of the approved traffic enforcement device and it was found to be operating correctly by examination of the detection and recording systems. That date of course was four days before 7 December 2014 which was the time the offence charged against the motorist. There was also a certificate under s 257 The Road Transport Act 2013 specifying details of the motorist's licence. There was a certificate pursuant to s 257(2) of the Road Transport Act 2013 annexing photograph A and the data printed on it which formed part of records kept by the RMS. The certificate also states that the series of 32 letters, numbers or symbols on the photograph following the words "security indicator" had been produced by a certain algorithm. The certificate also stated that the earlier two assertions of fact appear in or could be calculated from records kept by the RMS. There were then 5 photographs of the vehicle in question travelling along McPherson Street Mosman showing the time and the date that the vehicle was photographed and its speed at the relevant time. Also placed before the Local Court was a survey plan of McPherson Street and connecting streets in the area near Middle Harbour Public School indicating where signs were, what the signs were and where there were traffic lights and other things indicating the position of cameras and speed control devices. 2. The only evidence called by the appellant was from himself. Essentially the appellant gave evidence of an expert nature, or attempted to, which was not entitled to give. His contention was that the RMS's speed camera, to use shorthand, did not comply with the National Measurement Act 1960 of the Commonwealth that there was an inconsistency between State and Federal law. The learned Magistrate interrupted the appellant and told him this: "Sir, some two or three or four years, whatever it is, ago - I lose track of time - the "State government introduced changes to the law which prevent a defendant in cases like these challenging the accuracy of the machine or its readings. Are you with me? So if, as seems likely from what you were saying, you are seeking to suggest that wires nearby might have interfered with electro-magnetic radiation or whatever, that would require -that can be done, but only if you have a qualified person, that would require - that can be done, but only if you have a qualified person, which in most cases would mean an electrical engineer or somebody with similar qualifications to give evidence for you. Otherwise, you are not permitted to take account of evidence from an unqualified person, such as yourself, on an issue like that." The motorist then sought, as I understand it, to tender something that he printed out from the internet but its tender was properly rejected. Essentially that was the end of the evidence of the appellant. He was convicted on the documentary evidence, there being no expert evidence to contradict anything certified by the various certificates tendered by or on behalf of the RMS. 1. The magistrate imposed a fine of $109 which is the same as the original penalty amount and gave the motorist 28 days in which to pay that amount. The RMS then applied for costs and the appellant then relied on article 15 of the Covenant on Civil and Political Rights which he quoted: "No-one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed, nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed." Any lawyer knows that that enshrines the principle against retrospective criminal legislation. However, the motorist relied upon it as indicating that the ordering of costs again him was the imposition of a heavier penalty. That is simply not an arguable position. The purpose of an order for costs is to indemnify or compensate the person in whose favour it is made. The purpose of a costs order is not to punish the person against whom it is made: Latoudis v Casey (1990) 170 CLR 534 at 543, 562-3, 567; Ohn v Walton (1995) 36 NSWLR 77 at 79, 84; Director General of Department of Agriculture v Temmingh [2003] NSWSC 598. 1. His Honour ordered the appellant to pay costs in the sum of $1,771 and pointed out that if the appellant wished for time to pay he could make an application to the Registrar of the Local Court. 2. The appellant then commenced proceedings under the Crimes (Appeal and Review) Act 2001 and the original notice of appeal filed on 21 August 2015 was an appeal limited to the making of the costs order in the proceedings in the Local Court. 3. The appeal was first listed before his Honour Judge Toner on 28 October 2015. Initially there was no appearance by or on behalf of the motorist and the appeal was dismissed and the orders of the Local Court were confirmed and his Honour made an order that the motorist pay to the RMS costs in the sum of $900 being the costs of the appeal. Later, after Mr Wozniak who had appeared for the appellant was excused, the appellant appeared in person and his Honour vacated the orders that he had made earlier that day. His Honour noted that the appellant wished to appeal against not only the costs order but his conviction. His Honour adjourned the matter to 16 November 2015, adjourned that is both the original appeal and the application for leave to appeal against conviction. 4. On 16 November 2015 the matter came before his Honour Judge Berman. His Honour granted leave to the appellant to bring an appeal against his conviction. He then stood the matter over to 8 February 2016. On that day this appeal came on for hearing before me. 5. No amended notice of appeal was actually filed. However, it became clear that the appellant again wished to argue about the alleged non-compliance of the RMS speed camera with the Commonwealth legislation although he had no evidence of an expert nature to support that contention, had not filed any notice of motion seeking leave to adduce evidence that was not adduced in the Court below, and, insofar as he maintained that the State legislation was inconsistent with the Commonwealth legislation, had not given any notice to the Attorney General of this State, the Attorney General of the Commonwealth of Australia or indeed to the Attorneys General of the other States of the Commonwealth. All of this was explained to the motorist. In particular a Mr Wozniak was kind enough to refer me to decisions from other jurisdictions which supported his contention that there was no inconsistency between the State legislation and the Commonwealth legislation. He referred me to the decision of Vanstone J in Anastasiou v The Police [2013] SASC 112 and to Kuipers‑Lloyd v The Police [2013] SASC 137, a decision of David J. He also referred to the decision of my Queensland colleague, McGill DCJ in Crabbe v The Queensland Police Service [2013] QDC 122. Mr Wozniak suggested that the most succinct statement the legal principles was contained in a decision McGill DCJ. I read that decision and I concur with the submission that Mr Wozniak made. I read parts of Crabbe to the motorist in order to draw to his attention the fact that if he wished to argue against the reasoning of the District Court of Queensland and the reasoning of the two judges of the Supreme Court of South Australia he would find that at least the Attorney General of this State and perhaps the RMS itself would engage Senior Counsel to argue against the propositions which he sought to advance. 6. Eventually, the appellant, after being given time to consider his position, and knowing that if he wished to proceed further time beyond 8 February 2016 would be required in Court, decided not to proceed with his appeal against conviction. He proceeded with this appeal against sentence but for reasons which I gave on 8 February 2016 that appeal was dismissed. 7. The RMS then sought costs of the appeal. That application was made, if my recollection be correct, at about 4.30pm on 8 February. I suggested to the parties that I would deal with the matter on the following morning but that was not convenient for Mr Wozniak. The appellant told me that he did not wish to appear again in Court and that the matter could proceed without his being present in Court. For the convenience of Mr Wozniak I then adjourned the matter till today commencing at 2pm. 8. Again, the RMS has been put to considerable expense on an appeal which was initially limited to the making of the costs order but which was sought to be expanded to an appeal against the conviction, a conviction which was properly recorded in the Local Court by the learned magistrate and about which the appellant was given advice by Magistrate Pierce, advice by Mr Wozniak informally, and then informal advice in open Court by me. 9. The case, with the utmost respect to the motorist, was just not arguable and much time and effort has been wasted initially by the appellants being late to Court on 28 October 2015, then seeking leave to argue against the merits of his conviction which was granted by Breman J but eventually originally abandoned when he realised the almost insurmountable obstacles which he would have to traverse in order to seek to have the original conviction set aside. 10. Throughout the motorist was not legally represented. At the time of the offence the appellant was 43 years old. The transcript in the Local Court proceedings indicates that he was born in England and came to Australia some little time ago. His accent when arguing before me was clearly that of an Englishman. He was first issued a driver's licence in New South Wales on 5 October 2006. He described himself as a self-employed fitness trainer. It would appear that he has no qualifications in the law. That having been said the motorist might best be described as the best English "bush lawyer" that this Court has come across for some considerable time. However there is nothing that ought prevent the RMS recovering the costs wasted by the position taken by the motorist. If the motorist had taken legal advice early he probably would have been advised to pay the penalty notice which was not the admission of any criminal liability. It might attract the loss of a few points from his driver's licence but that and a payment of $109 would have been the end of the matter. 11. Unfortunately the matter only ends today. Mr Wozniak, an accredited specialist in this area of law and a very experienced solicitor has estimated that he has spent 1,150 minutes in defending the motorist's appeal on behalf of the RMS. That does not include any time spent today. He rounded that figure off as being 19 hours which is a rounding down. The hourly rate at which he charged is, for a person in Mr Wozniak's position, modest but in keeping with his contracted retainer with the RMS. There is nothing to say that the sum proposed by him as shown on MFI 1, a typewritten copy of which he handed up this afternoon which I annexed to MFI 1, is other than the real costs incurred by the RMS in defending the motorist's appeal. The total amount claimed is $6,118. 12. I order the appellant to pay the respondent's costs, the sum of $6,118. 13. And do you need any further reasons Mr Wozniak? 14. WOZNIAK: No your Honour. Pursuant to s 72 of the same legislation your Honour needs to put a time period and the normal time is 28 days your Honour. 15. HIS HONOUR: Yes, is it, right. 16. WOZNIAK: Section 72 your Honour. 17. HIS HONOUR: I order that the appellant pay those costs within three months of today's date. ********** 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. Decision last updated: 02 November 2016