Bryson v Fensom [2002] NTSC 25

PARTIES:	RICHARD BRYSON

	v

	STANLEY JOHN FENSOM

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:	JA29 AND 30 OF 2002

DELIVERED:	1 MAY 2002

HEARING DATES:	26 APRIL 2002

JUDGMENT OF:	RILEY J

REPRESENTATION:

Counsel:
	Appellant:	A. Fraser
	Respondent:	P. Elliott

Solicitors:
	Appellant:	Office of the Director of Public Prosecution
	Respondent:	Woodcock Solicitors 

Judgment category classification:	B
Judgment ID Number:	ril0213
Number of pages:	7

ril0213

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Bryson v Fensom [2002] NTSC 25
No. JA29 and 30 of 2002

	IN THE MATTER OF the Justices Act

	AND IN THE MATTER OF an appeal against dismissal of charges in the Court of Summary Jurisdiction at Darwin

	BETWEEN:

	RICHARD BRYSON
	Appellant

	AND:

	STANLEY JOHN FENSOM
	Respondent

CORAM:	RILEY J

REASONS FOR JUDGMENT

(Delivered 1 May 2002)

[1]	On 11 February 2002 the respondent, a police officer, was acquitted of two counts alleging he drove a motor vehicle at a speed over the speed limit contrary to r 20 of the Australian Road Rules.  Both offences were said to have occurred on the Stuart Highway and were detected by a speed 
camera.  In relation to the first offence it was alleged that the respondent drove at 80 kilometres per hour in a 70 kilometre per hour zone on 22 January 2001.  In relation to the second offence it was alleged that he drove at 117 kilometres per hour in a 100 kilometre per hour zone on 21 February 2001.  
[2]	There was no dispute that the respondent had in fact driven the motor vehicle at those speeds and on those occasions.  There was no dispute that the relevant speed limits had been exceeded.  The focus of the proceedings before the Court of Summary Jurisdiction was whether the respondent was entitled to the benefit of the exemption contained in r 305 of the Australian Road Rules.  That rule is in the following terms:
“305	Exemption for drivers of police vehicles
(1)	A provision of the Australian Road Rules does not apply to the driver of a police vehicle if:
	(a)	in the circumstances:
		(i)	the driver is taking reasonable care; and
(ii)	it is reasonable that the provision should not apply; and
(b)	if the vehicle is a motor vehicle that is moving – the vehicle is displaying a blue or red flashing light or sounding an alarm.
(2)	Subrule (1)(b) does not apply to the driver if, in the circumstances, it is reasonable:
	(a)	not to display the light or sound the alarm; or
(b)	for the vehicle not to be fitted or equipped with a blue or red flashing light or an alarm.”
[3]	It was agreed before his Worship that the defendant was the driver of the vehicle at the relevant time and that the vehicle was a police vehicle as defined.  The prosecution conceded that “there was no issue that the manner of driving was anything else but reasonably careful” and, further, that the circumstances put forward by the respondent as giving rise to the need to increase speed would not require that the police vehicle display a blue or red flashing light or to sound an alarm. 
[4]	The respondent gave evidence before the Court of Summary Jurisdiction in which he advised that he had no independent recollection of the incidents occurring on 22 January and 21 February 2001.  He said that the “only reason I exceed the gazetted speed limit is to diligently carry out my police duties”.  That would occur he said where he had to accelerate in order to allow him or his partner to inspect a vehicle ahead in the traffic for various identified reasons such as:  checking registration; checking to ensure a seat belt was worn; checking to see if the motor vehicle was stolen; inspecting the tyres on the vehicle and checking to see who might be occupying the particular vehicle at that time.  Once the information had been obtained, and if further action was not warranted, he would then slow the police vehicle to within the applicable speed limit.  The respondent said that type of surveillance work was undertaken frequently during the day whilst driving in the ordinary course of duty.  It was, he said, common police practice.  None of these assertions was challenged.  
[5]	In finding the respondent not guilty on each count the learned Stipendiary Magistrate held that the respondent had brought himself within the exemption provided for in r 305.  He specifically accepted the unchallenged evidence of the respondent that the only occasion on which he exceeded the speed limit as a police officer on duty in a police vehicle was for the purpose of “furthering some aspect of the obligations incumbent upon him as a police officer”.  The respondent was, perhaps surprisingly, not cross-examined at all on that topic.  His Worship was entitled to accept the evidence and there was no challenge to his finding in that regard in this Court.  His Worship then considered the speeds of the vehicle on each occasion and went on to say:
“Taking at the very lowest the fact that the defendant may have, in those instances, been doing something no more significant than checking on the seat belt or registration label, I do not find that the speed, if it was for those purposes, was intrinsically unreasonable.  It follows in the circumstances that I find that the defendant has brought himself within the exception provided – or exemption provided in road rule 305.”
[6]	The appellant appeals against the dismissal of the charges. There was no challenge to the facts as found by his Worship but it was submitted that he applied the wrong test as to the application of r 305 and that he erred in holding that it was reasonable for the respondent to have breached the Australian Road Rules in the circumstances prevailing in each instance.
Rule 305
[7]	Rule 20 of the Australian Road Rules provides that a driver must not drive at a speed over the speed limit for a particular stretch of road.  Rule 305 provides an exemption to that requirement.  By virtue of s 56 of the Justices Act the onus rests upon the defendant to a proceeding to bring himself or herself within the exemption.  The respondent in this case accepted that to be so both before his Worship and in this Court.
[8]	Rule 305 of the Australian Road Rules provides the driver of a police vehicle with exemption from compliance with a provision of the Australian Road Rules in certain circumstances.  The availability of the exemption is governed by the touchstone of reasonableness in the prevailing circumstances.  Reference to r 305 shows that, in order to obtain the benefit of the exemption, the defendant must establish, on the balance of probabilities, that he or she was the driver of a police vehicle as defined and that, in the circumstances, the driver was taking reasonable care.  The defendant must also show that in the circumstances it was reasonable that the provision of the Australian Road Rules (in this case r 20) should not apply.  Further, where the vehicle concerned was not, at the relevant time, displaying blue and red flashing lights or sounding an alarm, the defendant must demonstrate that it was, in the circumstances,  reasonable not to do so.  
[9]	In the present matter there was no dispute that the respondent was the driver of a police vehicle and that he was, at the relevant time, taking reasonable care.  It was also not in dispute that whilst the vehicle he was driving was not displaying a blue or red flashing light or sounding an alarm, it was reasonable not to do so in the circumstances disclosed by his evidence. 
[10]	Although it was expressed in different ways the argument presented on behalf of the appellant seems to be that it was necessary for the respondent to identify the actual circumstances that prevailed on each occasion in order for him to be able to receive the benefit of the exemption.  Further it was submitted that it could not be reasonable for a police officer to exceed the speed limit by the agreed margins “in the mere hope of identifying a minor traffic infraction”.  
[11]	The difficulty with the argument presented on behalf of the appellant was that his Worship found as a fact (a finding not challenged on appeal and a fact not disputed in the court below) that the only time the respondent exceeded the speed limit in the course of his duties was “to diligently carry out (his) police duties” in the manner suggested above.  Given that finding and given the concession by the appellant that the manner of driving of the defendant was “reasonably careful” on each occasion, it is difficult to see how the appellant can fairly complain of error on the part of his Worship.
[12]	It was submitted that the particular circumstances of the driving needed to be known before r 305 could have application.  It was submitted that the inability of the respondent to remember the individual instances of driving meant that an assessment of the reasonableness or otherwise of the conduct of the respondent could not be made.  According to the submission it followed that r 305 could not have application.  This submission ignores the fact that the relevant circumstances of the driving were known.  It was known that on a certain date, at a certain time, at a certain location the respondent drove a motor vehicle at a speed that was either 10 kilometres per hour above the speed limit or 17 kilometres an hour above the speed limit.  It was also known that on each occasion the vehicle was being driven in a manner described as “reasonably careful” and that assessment of care was made in light of all the circumstances then prevailing.  The only thing that was not known with precision was which one or more of the identified reasons for exceeding the speed limit on the particular occasion had application.  His Worship accepted that one such reason applied and determined that whichever reason was applicable it provided circumstances that made it reasonable that r 20 of the Australian Road Rules should not apply on that occasion.  His Worship accepted that the reasons given for exceeding the speed limit each provided a reasonable basis for so doing and that the speeds involved on each occasion were not unreasonable.  It followed that he regarded it as reasonable that the speed limit should not apply to either instance of driving by the respondent.  I do not see any error in so concluding.
[13]	In view of the concessions made by the appellant and of the facts found by the learned Magistrate, none of which are now in dispute, there is no error demonstrated.  The appeal is dismissed.
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