Supreme Court - Agar v Petrov

Court proceedings and Legal Process
ca315
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Supreme Court - Agar v Petrov

Postby ca315 » Tue Jun 02, 2015 8:59 pm

http://www.austlii.edu.au/au/cases/vic/VSC/2015/168.html

At the conclusion of a hearing de novo of a summary prosecution for a speeding offence, a County Court judge delivered oral reasons constituted by a statement to the effect: ‘as there is no evidence to the contrary in accordance with the legislation I find the charge proved’. The central question for determination in the present proceedings is whether this statement of reasons (‘Reasons’) is inadequate, with the consequence that there is an error of law on the face of the record. I have answered this question in the affirmative. The order of Judge Gucciardo of 24 June 2013 convicting Mr Agar and imposing a fine of $200 is set aside.

Day
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Re: Supreme Court - Agar v Petrov

Postby Day » Tue Jun 02, 2015 9:46 pm

Yep. Another appeal -
The hearing of the charge that Mr Agar exceeded the speed limit will be remitted to the County Court to be heard by another judge.


Let's see if it sticks this time.

Gravy
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Re: Supreme Court - Agar v Petrov

Postby Gravy » Wed Jun 03, 2015 2:10 pm

I like this bit:

Judgement wrote:I recall that his Honour said that, having read the decision of Agar v Dolheguy and a statement of Dr Brittain, the evidence of Dr Brittain was properly objected to as:
(a) proposed evidence concerned compliance with the National Measurements Act; and

(b) in the decision of Agar v Dolheguy his Honour Justice Macaulay found that compliance with the National Measurements Act was not required under the Victorian legislation...


Yet more proof that the National Measurements Act argument is invalid.

Hardy
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Re: Supreme Court - Agar v Petrov

Postby Hardy » Wed Jun 03, 2015 7:37 pm

It seems Agar is trying to find a court that will accept that the National Measurement Act is relevant to speeding cases.
It will be a long journey. There is no hope of that argument winning in the county court given the Supreme Court authorities that exist. So he will need to appeal all the way to the High Court to overrule the Supreme Court. I doubt the High Court would grant leave to appeal on an issue like that.

nofines
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Re: Supreme Court - Agar v Petrov

Postby nofines » Sun Jun 07, 2015 10:22 pm

Sad state of affairs and one that the Vic Gov't could easily fix by having their instruments tested in accordance with the Federal Measurements Act.

I'm unclear why the Judges have reasoned that the Federal Measurements Act doesn't apply as Federal Law trumps State law anywhere there is a dispute. It would be good to have the High Court make a definitive ruling :)

Hardy
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Re: Supreme Court - Agar v Petrov

Postby Hardy » Mon Jun 08, 2015 4:22 pm

In 2012 the Road Safety Camera Commissioner's annual report stated:

The Road Safety Camera Commissioner received complaints to the effect that a person cannot be convicted of exceeding the speed limit on the basis of a reading taken by a road safety camera unless it can be established that the measurements obtained by the speed camera comply with section 10 of the National Measurement Act 1960 (Cth) (the Commonwealth Act). The decision of Owen J in Breedon v Kongras (1996) 16 WAR 66 has been cited as authority for this proposition.
It was hoped that a later contrary decision of Macaulay J in Agar v Dolheguy (2010) VSC 406 would resolve the issue. However, subsequent correspondents seem to have either been unaware of, or paid no heed to this more recent decision. In his judgement, His Honour observed that the provisions of the Commonwealth Act: ... do not compel States to adopt or apply metrological principles in their regulatory provisions with respect to measuring instruments (eg. their use and testing) except perhaps in relation to measuring instruments used in trade and, as I will show, in relation to an ‘evidential breath analyser’.
In June 2012, the Road Safety Camera Commissioner briefed a leading Victorian Silk PG Nash QC to examine the authorities and advise. Mr Nash brought all relevant authorities together with the following result.

The decision in Breedon v Kongras supports an argument that a prosecution for exceeding the speed limit which is based on a reading by a speed camera is required to satisfy the requirements of the Commonwealth Act. However, that decision is contrary to decisions of the Full Court of the Supreme Court of Victoria, the WA Court of Appeal, the Queensland Court of Criminal Appeal, the Supreme Court of Western Australia, the Supreme Court of Tasmania and the Supreme Court of Victoria. No decision handed down in any superior court in Australia since 1960 has followed Breedon v Kongras. Irrespective of the compelling logic of the reasoning in the decided cases, Victorian courts, other than the Court of Appeal, are bound by the coinciding views as to the operation of the Commonwealth Act expressed by the Full Court of the Supreme Court of Victoria, the WA Court of Appeal, and the Queensland Court of Criminal Appeal. And that should be the end of the matter.


Since that report was published there have been no less than 5 more Supreme Court cases where the argument has been knocked on the head. A noteworthy similarity in every case decided since 2003 is that the drivers represented themselves in court, which suggests they are either not getting or not accepting legal advice about this issue. Although it is true that these drivers could be appeased by having every speed measurement device certified under the NMA as well as undergoing the calibration processes required by state law, that is not really the point. I don't think any of them actually want that to happen, for if it did happen it would just make it even harder to win a speeding case. They just want to win a technical defence argument. At issue is whether the speed of vehicles has been measured correctly and lawfully and the complainants have never been able to refute that they have.


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