26.13 Exceeding speed limit

>**Road Safety Road Rules 2017** >**Road Rule 20 Obeying the speed-limit** >(1) 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. # Penalties | Speed | Reference | Fine | Demerits | Suspension | | ----------------- | --------- | ---- | --------- | ---------- | | Less than 10km/h | | $247 | 1 (one) | N/A | | 10km/h <-> 14km/h | | $395 | 3 (three) | N/A | | 15km/h <-> 24km/h | | $395 | 3 (three) | N/A | | 25km/h <-> 29km/h | | $543 | N/A | 3 months | | 30km/h <-> 34km/h | | $642 | N/A | 3 months | | 35km/h <-> 39km/h | | $741 | N/A | 6 months | | 40km/h <-> 44km/h | | $840 | N/A | 6 months | | 45km/h <-> more | | $988 | N/A | 12 months | # Overview Road Rule (RR) 20 creates the offence. RR 21 to 25 specify relevant speed-limits that apply to lengths of road (they don't create new offences). # Elements of offence 1. The offence occurred at the *time* and *placed* alleged; and 2. The offender was the *accused*; and 3. The accused was the *driver* of a *vehicle*; and 4. A particular *speed limit* applied to the length of road where the driver was driving; and 5. The accused drove *at a speed over that speed limit*. # Charge Wording The accused at [1 =PLACE] on [2 =DATE] being the driver of a vehicle did drive at a speed over the speed-limit applying to a driver for the length of road where the accused was driving namely [3 =ROAD] between [4 =FIRST POINT] and [5 =SECOND POINT] to which a speed-limit sign of [6 =SPEED-LIMIT SIGN] kilometres per hour applied. Detected Speed [7 =DETECTED] km/h. Alleged Speed [8 =ALLEGED] km/h. ## Speed limit applying to a length of road [[Length of road]] is defined in the Road Rules Dictionary. A speed limit applies in the following ways: 1. Where a *speed-limit sign* applies to the length of road (RR 21); and 2. Where an *area speed-limit sign* applies to any length of road within a speed-limited area (RR 22); and 3. Where a *school zone sign* applies to a length of road (RR 23); and 4. Where a *shared zone sign* applies to a length of road; or 5. Otherwise, the *default speed limit*. # Defences Pursuant to Road Rule 322(2) and Road Rule 315, the speed-limit sign must be *clearly visible* for it to be taken to be *on the road* and therefore legally effective. ## Speedometer not working In numerous common law cases, it has been held that the accuracy of a speedometer is 'prima facie' or a clear given. Porter v Kolodzeij [1962] VR 75 held: >In support of the admissibility of the results of such tests, the Solicitor-General relied upon the well-known evidentiary presumption of the working accuracy of scientific or technical instruments. This presumption makes the recording or reading of such an instrument prima facie evidence of the facts recorded without any evidence that its accuracy has been actually tested. According to Taylor on Evidence, 12th ed., paragraph 183, at p. 167,it applies to watches, clocks, thermometers, pedometers, aneroids, anemometers, and "a variety of other ingenious contrivances for detecting different matters". It has been held in several cases to apply to the readings of speedometers: see, for example, [Thompson v Kovacs, [1959] VR 229](https://anzlaw.thomsonreuters.com/Link/Document/FullText?refType=U2&serNum=1959056271&pubNum=0004888&originationContext=document&transitionType=DocumentItem&ppcid=1c554eefefe1406c8fe4f6d5ca4f6474&contextData=$sc.DocLink$); [1959]ALR 636; [Peterson v Homes, [1927] SASR 419](https://anzlaw.thomsonreuters.com/Link/Document/FullText?refType=U2&serNum=1927024644&pubNum=0004840&originationContext=document&transitionType=DocumentItem&ppcid=1c554eefefe1406c8fe4f6d5ca4f6474&contextData=$sc.DocLink$); [Nicholas v Penny, [1950] 2 KB 466](https://anzlaw.thomsonreuters.com/Link/Document/FullText?findType=Y&serNum=1950013098&pubNum=0003719&originatingDoc=I9b29a280893111e8aca5bab3c9b3f468&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=1c554eefefe1406c8fe4f6d5ca4f6474&contextData=$sc.DocLink$);sub nom. [Penny v Nicholas, [1950] 2 All ER 89](https://anzlaw.thomsonreuters.com/Link/Document/FullText?findType=Y&serNum=1950013098&pubNum=0004660&originatingDoc=I9b29a280893111e8aca5bab3c9b3f468&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=1c554eefefe1406c8fe4f6d5ca4f6474&contextData=$sc.DocLink$). The speedometer, however, today takes its place, as do the contrivances actually mentioned by Taylor, amongst a class of instruments of a scientific or technical character, which by general experience as known to be trustworthy, and are so notorious that the court requires no evidence to the effect that they do fall into such class, before allowing the presumption in question to operate with regard to readings made thereon. As Lowe, J, pointed out in [Crawley v Laidlaw, [1930] VLR 370](https://anzlaw.thomsonreuters.com/Link/Document/FullText?refType=U2&serNum=1930026624&pubNum=0004887&originationContext=document&transitionType=DocumentItem&ppcid=1c554eefefe1406c8fe4f6d5ca4f6474&contextData=$sc.DocLink$), atp. 374; [36 ALR 311](https://anzlaw.thomsonreuters.com/Link/Document/FullText?refType=U2&serNum=1930026624&pubNum=0004654&originationContext=document&transitionType=DocumentItem&ppcid=1c554eefefe1406c8fe4f6d5ca4f6474&contextData=$sc.DocLink$), judicial notice supplies the place of evidence in such cases. Where, however, the instrument in question does not fall within the notorious class, then his Honour made it clear that evidence must be given to establish that it is a scientific or technical instrument of such a kind, as may be expected to be trustworthy, before the presumption can be relied upon. ## No one knew what speed I was going This might come up if it is based upon observations of an informant alone. Restifio v Bernstein (1996) 23 MVR 347 is the authority on the matter, in which a former police officer gave observational evidence (considered to be opinion evidence) of the speed a vehicle was going. It was held that as long as the opinion has some type of basis to be admitted, e.g. the experience of that persons driving or work, then it is allowed as proof of speed. ## Necessity #sudden-or-extraordinary-emergency is available to a charge of speeding. The following elements must be met for this defence to be available: - The criminal act must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect; and - The accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril; and - The acts done to avoid the peril must not be out of proportion to the peril to be avoided. There are also three further relevent points that can be applied: - The harm to be justified must have been committed under the pressure either of physical forces or exerted by some human agency so that an urgent situation of imminent peril has been created; and - The accused must have acted with the intention of avoiding greater harm or so as to have made possible the preservation of at least an equal value; and - There was open to the accused *no alternative*, other than that adopted by him, to avoid the greater harm or to conserve the value. Being tail-gated is **not** grounds of #sudden-or-extraordinary-emergency to speed, as found at Pershouse v Queensland Police Service [2013] QCA 296: >Para 27: Beyond these complaints, the material filed by Mr Pershouse suggests that had he defended the prosecution, he would have sought to rely on the “extraordinary emergencies” defence for which [s 25 of the Criminal Code (Qld)](https://anzlaw.thomsonreuters.com/Link/Document/FullText?refType=U5&docFamilyGuid=I88d9246be9b011eb808c9e34970b55bb&pubNum=1100190&originationContext=document&transitionType=DocumentItem&docVersion=Law+in+Force&ppcid=ab18cd6083d94d3995f17ce155130e31&contextData=$sc.DocLink$) provides. The essence of such a defence is that an ordinary person possessing ordinary power of self-control could not reasonably be expected to have acted otherwise in the particular circumstances of sudden or extraordinary emergency. The factual basis for the proposed defence appears to be that Mr Pershouse was being “tailgated” at the time when the speed of his vehicle was recorded. Clearly, being “tailgated” is not a sudden or extraordinary circumstance in which the ordinary driver cannot reasonably be expected to do other than to exceed the speed limit. That defence would have no prospect of success. ## It wasn't a built up area [[Built-up area]] is defined within the Road Rules Dictionary. Dinovitser v Police (SA) [2013] SASC 9 held that buildings and street lighting along one boundary of a road is sufficient for it to be a built-up area. Taylor v Hodgson (2013) 230 A Crim R 290 held that buildings and lighting need to be on both sides. There is obviously room for legal arguments either way. ## Default speed limit intersecting with speed-limit sign road Also known as the "I didn't even know what the speed-limit was because the last speed sign was so far away!" defence. In Dinovitser v Police (SA) [2013] SASC 9, the driver was on a road to which a 60km/h speed-limit applied. - He turned onto another road which the default speed-limit applied. - It was a built-up area and therefore, a 50km/h speed-limit applied. - The driver argued that the speed limit would have been 60km/h, because if there isn't a speed-limit sign on a road you turn onto, it must be that last roads sign that applies. - This argument was not accepted. Given the facts of this case, it is fair to say that if there is a particularly *lengthy* road, the last visible speed limit applies until that road either ends or another speed-sign appears.