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District Court 15 February 2016

Robinson v RMS

[2016] NSWDC 277

Traffic & driving
CRIMINAL LAW ROAD TRANSPORT LEGISLATION COSTS APPEAL AGAINST CONVICTION AND SENTENCE CONVICTION APPEAL ABANDONED APPEAL AGAINST SENTENCE DISMISSED

Citation: Robinson v RMS [2016] NSWDC 277
Court: District Court of New South Wales
Date: 15 February 2016
Judge: Neilson DCJ

Background

A self-represented motorist was detected by an RMS speed camera driving at 60 km/h in a 50 km/h zone on Macpherson Street, Mosman, on 7 December 2014. He was issued a penalty notice for $109. Rather than pay the fine, he challenged it through the State Debt Recovery Office, arguing that the speed-measuring device did not comply with the National Measurement Act 1960 (Cth) and that there was an inconsistency between State and Commonwealth law.

When those administrative challenges failed, the matter proceeded to the Local Court at the Central Local Court on 31 July 2015. RMS relied entirely on documentary evidence, including statutory certificates confirming the device's approval, its recent inspection, and photographic records. The motorist gave evidence himself but lacked the expert qualifications required to challenge the device's accuracy under the applicable legislation. The magistrate convicted him, imposed a fine of $109, and ordered him to pay RMS's costs of $1,771.

The motorist then appealed. He initially confined his appeal to the costs order, but later obtained leave to appeal against the conviction as well. He subsequently abandoned the conviction appeal and pressed only the sentence appeal. RMS applied for its costs of the District Court appeal proceedings.

  • Whether the appeal against sentence (specifically the costs order) should be dismissed.
  • Whether a costs order constitutes the imposition of a "heavier penalty" within the meaning of the International Covenant on Civil and Political Rights, art 15.
  • Whether RMS was entitled to its costs of the appeal proceedings under s 28(3) of the Crimes (Appeal and Review) Act 2001, and in what amount.

Decision

Neilson DCJ dismissed the appeal against sentence. The motorist had argued that the costs order made against him in the Local Court amounted to the imposition of a heavier penalty, relying on art 15 of the International Covenant on Civil and Political Rights, which enshrines the prohibition on retrospective criminal punishment. The District Court rejected that argument as unarguable: the purpose of a costs order is to indemnify or compensate the successful party, not to punish the losing party. Authority to that effect includes Latoudis v Casey (1990) 170 CLR 534 and Ohn v Walton (1995) 36 NSWLR 77.

As for the conviction appeal, the motorist had abandoned it once he recognised the substantial obstacles he faced in challenging the underlying conviction. Neilson DCJ noted the motorist was unrepresented throughout and described him, with some colour, as a skilled lay advocate, but concluded that this did not alter the outcome or affect the costs question.

RMS then applied for its costs of the appeal under s 28(3) of the Crimes (Appeal and Review) Act 2001. Mr Wozniak, an accredited specialist solicitor retained by RMS, estimated he had spent approximately 19 hours on the matter. The District Court accepted that the claimed figure of $6,118 represented the real costs incurred by RMS in defending the appeal, and ordered the appellant to pay that sum.

Orders Made

  • The appellant is to pay the respondent's costs of $6,118 within three months of 15 February 2016.

Key Takeaways

  • A costs order made against a losing party in criminal proceedings is not a "penalty" for the purposes of art 15 of the International Covenant on Civil and Political Rights. Its purpose is compensatory, not punitive, consistent with the High Court's analysis in Latoudis v Casey.
  • Under s 28(3) of the Crimes (Appeal and Review) Act 2001, a successful respondent to an appeal may apply for costs against an unsuccessful appellant, and the court has power to order payment of those costs.
  • Abandoning a conviction appeal mid-way through District Court proceedings does not insulate an appellant from a costs order covering the entirety of the appeal.
  • The District Court confirmed that challenging the accuracy or compliance of an approved speed-measuring device requires qualified expert evidence. A self-represented litigant's own assertions, and material printed from the internet, do not meet that evidentiary threshold.
  • What began as a $109 penalty notice resulted in costs orders totalling approximately $7,889 ($1,771 at first instance and $6,118 on appeal), illustrating how contested penalty notice proceedings can generate costs far exceeding the original fine.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 28(3), 72
- Road Transport Act 2013 (NSW), ss 137, 138, 257
- Road Rules 2014 (NSW), r 20
- Motor Accidents Compensation Act 1999 (NSW), s 221
- National Measurement Act 1960 (Cth)
- International Covenant on Civil and Political Rights, art 15

Cases
- Latoudis v Casey (1990) 170 CLR 534
- Ohn v Walton (1995) 36 NSWLR 77
- 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