Speeding

Published by Geoff Harrison | 20 July 2023

Speeding offences are set out under Part 3 of the Road Rules 2014 (NSW) Regulations ('the Road Rules').

Most speeding related offences come with a penalty notice and demerit points. A summary of the penalty notice procedure is set out under s19 of the Fines Act 1996 (see below). Offences under the Road Rules may be punishable by a penalty not exceeding 50 penalty units (where a penalty unit is $110). The amount of any penalty notice cannot exceed the maximum penalty that is available to the court. The amount payable under any penalty notice is specified in Schedule 5, Column 3 of the Road Transport (General) Regulation 2021 by the level. For a useful search tool stating the amount of any fine and associated demerit points click here. For the relevant schedules relating to demerit points attaching to a particular offence click here and here for schedules 1and 2 respectively.

The speed limit for a learner or P1 driver is 90 k/ph and 100 k/ph for a P2 licence holder; unless another lesser speed limit applies to the driver for that length of road. Where there is no relevant signage, the default speed limit in a built-up area is 50 k/ph and 100 k/ph for any other length of road (see: r25 of the Rules).

For an offence of exceeding the speed limit by more than 30 k/ph, the penalty is 20 penalty units and 3 months disqualification upon conviction. For exceeding the speed limit by more than 45 k/ph the penalty is 30 penalty units (50 for heavy vehicles) and 6 months disqualification upon conviction (see: r10-2 of the Road Rules).

Speeding offences are strict liability offences as per r10--1(2) of the Road Rules, with the defences under the Commonwealth Criminal Code Act 1995 applying such as, honest and reasonable mistake of fact and unavoidable accident. A mistaken belief about the relevant speed limit for the length of the road is a mistake of law, not fact (see: The Roads and Traffic Authority of New South Wales v O'Reilly & Ors. below).

If you have received a camera-detected penalty notice you can view the photo here.

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20 OBEYING THE SPEED LIMIT

A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driveris driving.

Penalty and disqualification: a driver who contravenes this rule is guilty of an offence and is liable to a maximum penalty and a period of disqualification (if any) determined in accordance with rule 10- 2.

Note 1: The rules about speed limits are as follows--

• rule 21--speed limit where a speed limit sign applies • rule 21- 1--NSW rule: school bus stop zone sign is speed limit sign • rule 22--speed limit in a speed limited area • rule 23--speed limit in a school zone • rule 24--speed limit in a shared zone • rule 24- 1--NSW rule: speed limits for learner and provisional licence holders • rule 24- 2--NSW rule: speed limit on Lord Howe Island • rule 24- 3--NSW rule: speed limit when bus displaying when lights flash speed limit sign • rule 24- 4--NSW rule: speed limits for small motor bikes during periods of darkness • rule 25--speed limit elsewhere.

Note 2 : "Road" includes a road related area--see rule 11(2).

Note 3 : "Length" of road includes a marked lane, a part of a marked lane, or another part of a length of road--see the definition in the Dictionary.

Note 4 : Part 20, Division 2 deals with the way in which a traffic sign applies to a length of road. Part 20, Division 3 deals with the way in which the traffic sign applies to drivers driving on the length of road.

Note 5 : Division 3 of Part 5.3 of the Act provides that a person bringing proceedings or issuing a penalty notice in which it is alleged that the driver of a heavy vehicle committed a speeding offence may rely on the average speed at which the vehicle travelled between different points on a road as evidence of the offence.

If there is more than one speed limit applicable to the driver between the different points, Division 3 of Part 5.3 of the Act provides that for the purposes of such proceedings the speed limit that applied to the driver between those points is taken to be the average speed limit calculated in accordance with that Division.

ROAD RULES 2014 - REG 21

21 SPEED LIMIT WHERE A SPEED LIMIT SIGN APPLIES

(1) The speed limit applying to a driver for a length of road to which a speed limit sign applies is the number of kilometres per hour indicated by the number on the sign. Note : "Length" of road is defined in the Dictionary.

(2) However, if the number on the speed limit sign is over 100 and the driver is driving a vehicle with a GVM over 4.5 tonnes or a vehicle and trailer combination with a GCM over 4.5 tonnes, the speed limitapplying to the driver for the length of road is 100 kilometres per hour. Note 1 : "Combination" and "trailer" are defined in the Dictionary, "vehicle" is defined in rule 15, and "GCM" and "GVM" are defined in the Act. Note 2 : This subrule is not uniform with the corresponding subrule in rule 21 of the Australian Road Rules . Different rules may apply in other Australian jurisdictions.

(3) A speed limit sign on a road applies to the length of road beginning at the sign and ending at the nearest of the following-- (a) a speed limit sign on the road with a different number on the sign, (b) an end speed limit sign or speed derestriction sign on the road, (c) if the road ends at a T-intersection or dead end--the end of the road. Note 1 : "T-intersection" is defined in the Dictionary. Note 2 : Rule 322(1) and (2) deal with the meaning of a traffic sign

"on" a road.

Note 1 for diagrams : There are a number of other permitted versions of the speed limit sign and the end speed limit sign --see the diagrams in Schedule 3.

Note 2 for diagrams : A speed limit sign or end speed limit sign may have a different number on the sign--see rule 316(4).

ROAD RULES 2014 - REG 23

23 SPEED LIMIT IN A SCHOOL ZONE

(1) The speed limit applying to a driver for any length of road in a school zone is the number of kilometres per hour indicated by the number on the school zone sign on a road, or the road, into the zone. Note 1 : "Length" of road is defined in the Dictionary. Note 2 : A school zone sign may indicate that it applies only at certain times, on certain days or in certain circumstances--see rules 317 and 318. Note 3 : This subrule applies to road related areas in the school zone--see rule 11(2).

(2) A "school zone" is-- (a) if there is a school zone sign and an end school zone sign, or a speed limit sign with a different number on the sign, on a road and there is no intersection on the length of road between the signs--that length of road, or (b) if there is a school zone sign on a road that ends in a dead end and there is no intersection, nor a sign mentioned in paragraph (a), on the length of road beginning at the sign and ending at the dead end--that length of road, or (c) in any other case--the network of roads in an area with-- (i) a school zone sign on each road into the area, indicating the same number, and (ii) an end school zone sign, or a speed limit sign indicating a different number, on each road out of the area. Note : "Intersection" is defined in the Dictionary.

(3) In subrule (2)(c)(i) and (ii)-- "road" does not include a road related area. Note : "Road related area" is defined in rule 13.

Note 1 for diagrams : There are other permitted versions of the school zone sign --see the diagrams in Schedule 3.

Note 2 for diagrams : A school zone sign or end school zone sign may have a different number on the sign--see rule 316(4).

Note 3 for diagrams : School days are any days other than a Saturday or Sunday, a day that is a public holiday or a day publicly notified as a school holiday for government schools--see rule 318(3- 1).

24-1 NSW RULE: SPEED LIMITS FOR LEARNER AND PROVISIONAL LICENCE HOLDERS

(1) Speed limit applying to learner drivers The speed limit applying for any length of road to a driver who is the holder of a learner licence issued in New South Wales is 90 kilometres per hour, unless another lesser speed limit applies to the driver for the length of road under another rule of this Part.

Note :

"Length" of road is defined in the Dictionary, and

"learner licence" is defined in the Act.

(2) Speed limit applying to P1 provisional drivers The speed limit applying for any length of road to a driver who is the holder of a provisional P1 licence is 90 kilometres per hour, unless another lesser speed limit applies to the driver for the length of road under another rule of this Part.

Note :

"Provisional P1 licence" is defined in the Dictionary.

(3) Speed limit applying to P2 provisional drivers The speed limit applying for any length of road to a driver who is the holder of a provisional P2 licence is 100 kilometres per hour, unless another lesser speed limit applies to the driver for the length of road under another rule of this Part.

Note :

"Provisional P2 licence" is defined in the Dictionary.

(4) Rule applies despite greater speed limits This rule has effect despite any other rule in this Part that specifies a speed limit applying to a driver for a length of road that is greater than the speed limit applying to the driver under this rule.

Note : This rule is an additional NSW road rule. There is no corresponding rule in the Australian Road Rules .

ROAD RULES 2014 - REG 10-1

10-1 NSW RULE: DETERMINATION OF CRIMINAL RESPONSIBILITY

(1) Application of Commonwealth Criminal Code Subject to this rule, Chapter 2 of the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth (the "Commonwealth Criminal Code" ) applies to an offence against these Rules as if the Chapter were in force as a law of New South Wales.

Note : Chapter 2 of the Commonwealth Criminal Code codifies the general principles of criminal responsibility.

(2) Offences are strict liability offences An offence against these Rules is a strict liability offence for the purposes of Chapter 2 of the Commonwealth Criminal Code (as applied by subrule (1)), except where these Rules expressly provide otherwise.

(3) General defence of accident or reasonable effort Without limiting any defence under Chapter 2 of the Commonwealth Criminal Code (as applied by subrule (1)), a person is not liable to a penalty for any offence under these Rules if the person proves to the satisfaction of the court dealing with the case that the offence--

(a) was the result of an accident, or

(b) could not have been avoided by any reasonable efforts on the person's part.

(4) Operation of Crimes (Sentencing Procedure) Act 1999 not affected Nothing in these Rules affects the application of the Crimes (Sentencing Procedure) Act 1999 in relation to these Rules (particularly, Divisions 4 and 5 of Part 2 of that Act).

Note 1 : Divisions 4 and 5 of Part 2 of the Crimes (Sentencing Procedure) Act 1999 contain provisions relating to how offence provisions are to be interpreted. For instance, section 17 of that Act defines the amount of a penalty unit. Similarly, section 18 of that Act sets out rules for interpreting provisions in legislation that impose penalties.

Note 2 : This rule is an additional NSW road rule. There is no corresponding rule in the Australian Road Rules . However, it is intended that each Australian jurisdiction that adopts the Australian Road Rules is to apply the provisions of the Commonwealth Criminal Code to offences against the uniform rules.

ROAD RULES 2014 - REG 10-2

10-2 NSW RULE: PENALTIES AND DISQUALIFICATIONS FOR SPEEDING OFFENCES

(1) Definitions In this rule--

"heavy motor vehicle" means--

(a) a motor vehicle with a GVM over 12 tonnes, or

(b) a motor vehicle and trailer combination with a GCM over 12 tonnes.

"large motor vehicle" means--

(a) a coach, or

(b) a motor vehicle with a GVM over 4.5 tonnes, or

(c) a motor vehicle and trailer combination with a GCM over 4.5 tonnes.

"speed limit" , in relation to a speeding offence, means the speed limit that was contravened in committing the offence.

"speeding offence" means an offence under Part 3 (Speed limits).

Note :

"Motor vehicle" ,

"combination" and

"trailer" are defined in the Dictionary, and

"coach" ,

"GCM" and

"GVM" are defined in the Act.

(2) Penalties and disqualifications for speeding offence A driver who commits a speeding offence in any of the circumstances referred to in subrule (3), (5) or (6) is--

(a) liable to the maximum penalty specified in this rule for an offence committed in those circumstances, and

(b) disqualified from holding a driver licence for the period specified in this rule for an offence committed in those circumstances.

Note :

"Driver licence" is defined in the Act.

(3) Exceeding speed limit by more than 45 kilometres per hour A driver who commits a speeding offence by exceeding a speed limit by more than 45 kilometres per hour--

(a) is liable to a maximum penalty of 50 penalty units (in the case of a heavy motor vehicle or coach) or 30 penalty units (in any other case), and

(b) is disqualified from holding a driver licence by a conviction for the offence (and without any specific order) for 6 months or, if the court on the conviction thinks fit to order a different period of disqualification determined in accordance with subrule (4), is disqualified for the period specified in the order.

Note :

"Coach" is defined in the Act.

(4) Court-ordered disqualification periods under subrule (3) In determining a different period of disqualification under subrule (3) for a driver who commits a speeding offence, the court may specify a period that is--

(a) more than 6 months, or

(b) less than 6 months, but only if--

(i) the person's driver licence or authority to drive in New South Wales has been suspended for a period (

"the suspension period" ) under Division 4 of Part 7.4 of the Act for that offence, and

(ii) the specified disqualification period when added to the suspension period results in a total period of no less than 6 months.

(5) Exceeding speed limit by more than 30 kilometres per hour A driver who commits a speeding offence by exceeding a speed limit by more than 30 kilometres per hour--

(a) is liable to a maximum penalty of 20 penalty units, and

(b) is disqualified from holding a driver licence by a conviction for the offence (and without any specific order) for 3 months or, if the court on the conviction thinks fit to order a different period of disqualification determined in accordance with subrule (5A), is disqualified for the period specified in the order.

(5A) Court-ordered disqualification periods under subrule (5) In determining a different period of disqualification under subrule (5) for a driver who commits a speeding offence, the court may specify a period that is--

(a) more than 3 months, or

(b) less than 3 months, but only if--

(i) the person's driver licence or authority to drive in New South Wales has been suspended for a period (

"the suspension period" ) under Division 4 of Part 7.4 of the Act for that offence, and

(ii) the specified disqualification period when added to the suspension period results in a total period of no less than 3 months.

(6) Exceeding speed limit on road by 30 kilometres per hour or less A driver who commits a speeding offence by exceeding a speed limit by 30 kilometres per hour or less is liable to a maximum penalty of 20 penalty units.

(7) Alternative verdicts in prosecutions for speeding by more than 45 kilometres per hour If a driver is prosecuted under subrule (3) for a speeding offence in circumstances where the court--

(a) is satisfied that the person exceeded the relevant speed limit, but

(b) is not satisfied that it was exceeded by more than 45 kilometres per hour,

the court may instead convict the driver of an offence in accordance with subrule (5) if satisfied that the speed limit was exceeded by more than 30 kilometres per hour, or in accordance with subrule (6) if satisfied that the speed limit was exceeded by 30 kilometres per hour or less.

(8) Alternative verdicts in prosecutions for speeding by more than 30 kilometres per hour If a driver is prosecuted under subrule (5) for a speeding offence in circumstances where the court--

(a) is satisfied that the person exceeded the relevant speed limit, but

(b) is not satisfied that the speed limit was exceeded by more than 30 kilometres per hour,

the court may instead convict the driver of an offence in accordance with subrule (6).

(9) Disqualification period commences on date of conviction A period of disqualification imposed by or under this rule commences on the date of conviction for the offence to which it relates.

Note : This rule is an additional NSW road rule. There is no corresponding rule in the Australian Road Rules . However, the Australian Road Rules allow another law of this jurisdiction to make provision for penalties.

ROAD RULES 2014 - REG 25

25 SPEED LIMIT ELSEWHERE

(1) If a speed limit sign does not apply to a length of road and the length of road is not in a speed limited area, school zone or shared zone, the speed limit applying to a driver for the length of road is the default speed limit.

Note :

"Length" of road is defined in the Dictionary,

"school zone" is defined in rule 23,

"shared zone" is defined in rule 24, and

"speed limited area" is defined in rule 22.

(2) The "default speed limit" applying to a driver for a length of road in a built-up area is 50 kilometres per hour.

Note :

"Built-up area" is defined in the Dictionary.

(3) The

"default speed limit" applying to a driver for any other length of road is--

(a) for a driver driving a vehicle with a GVM over 4.5 tonnes or a vehicle and trailer combination with a GCM over 4.5 tonnes--100 kilometres per hour, or

(b) for any other driver--100 kilometres per hour or as otherwise provided under another law of this jurisdiction.

Note 1 :

"Combination" and

"trailer" are defined in the Dictionary,

"vehicle" is defined in rule 15, and

"GCM" and

"GVM" are defined in the Act.

Note 2 : Subrule (3)(a) is not uniform with the corresponding paragraph in rule 25 of the Australian Road Rules . Different rules may apply in other Australian jurisdictions.

ROAD TRANSPORT ACT 2013 - SECT 59

59 CANCELLATION OR SUSPENSION OF DRIVER LICENCE FOR CERTAIN SPEEDING OFFENCES OR ALCOHOL OR OTHER DRUG RELATED DRIVING OFFENCES

(cf DL Act, s 33)

(1) A driver licence may be cancelled or suspended by Transport for NSW because of an alleged speeding offence or alleged alcohol or other drug related driving offence, if, in respect of the alleged offence--

(a) the holder pays the whole or any part of the penalty specified in a penalty notice issued to the holder in respect of the offence, or

(b) the holder has not paid the penalty specified in the penalty notice issued to the holder in respect of the offence and has not elected to have the matter dealt with by a court, and the time for the holder to have the matter so dealt with has lapsed.

(2) Transport for NSW may decide to cancel or suspend a driver licence under this section without the holder having been provided an opportunity to show cause why the licence should not be cancelled or suspended.

(3) If a person's driver licence is cancelled by Transport for NSW under this section, Transport for NSW may refuse to issue the person with any further licence for a period determined by Transport for NSW and specified in a notice served on the person by Transport for NSW.

(4) If a person's driver licence is suspended by Transport for NSW under this section, the person's licence is suspended for such period as may be determined by Transport for NSW and specified in a notice served on the person by Transport for NSW.

(4A) For the purposes of subsection (4), a period not exceeding 3 months may be specified in relation to an alleged alcohol or other drug related driving offence.

(4B) In determining the period specified in a notice to be served on a person under subsection (3) or (4), Transport for NSW is required to take into account the period during which the person's driver licence was suspended under an immediate licence suspension notice given to the person under section 224 for the same offence.

(5) Nothing in this section limits any discretion of Transport for NSW to decline to issue a driver licence to a person.

(6) In this section--

"speeding offence" means an offence that involves exceeding a speed limit fixed by or under this Act and that is prescribed by the statutory rules for the purposes of this section.

ROAD TRANSPORT (DRIVER LICENSING) REGULATION 2017 - REG

67 PRESCRIBED SPEEDING OFFENCES FOR SUSPENSION OR CANCELLATION OF LICENCES

(cf 2008 Reg cl 56)

For the purposes of the definition of

"speeding offence" in section 59(6) of the Act, any offence that involves exceeding a speed limit fixed by or under the Act applicable to the relevant driver or vehicle by more than 30 kilometres per hour is prescribed.

FINES ACT 1996 - SECT 19

19 SUMMARY OF PENALTY NOTICE PROCEDURE

(1) The following is a summary of the penalty notice procedure under this Part--

(a) A person is alleged to have committed a penalty notice offence for which a penalty notice may be issued under a statutory provision (see Division 2).

(a1) The officer who may issue a penalty notice determines whether to issue a penalty notice or whether an official caution would be more appropriate (see Division 1A).

(b) If it is determined that it is not appropriate to give an official caution, a penalty notice is issued under the relevant statutory provision. The notice requires payment of a specified monetary penalty, unless the person alleged to have committed the offence elects to have the matter dealt with by a court (see Division 2).

(b1) A reviewing agency may conduct a review of the decision to issue the penalty notice, including after a penalty notice enforcement order has been made. After conducting a review, the agency may withdraw the penalty notice or penalty notice enforcement order or confirm the decision. If the decision is confirmed, the agency may serve a penalty reminder notice or, if a penalty notice enforcement order has been made, take enforcement action (see Division 2A).

(c) If the penalty is not paid, a penalty reminder notice is served. The person who is alleged to have committed the offence may elect to have the matter dealt with by a court (see Division 3).

(d) If payment of the specified monetary penalty is not made and the person does not elect to have the matter dealt with by a court, a penalty notice enforcement order may be made against the person (see Division 4). If the person does not pay the amount (including enforcement costs) within 28 days, enforcement action authorised by this Act may be taken in the same way as action may be taken for the enforcement of a fine imposed on a person after a court hearing for the offence (see Part 4).

(e) A penalty notice enforcement order may, on application or the Commissioner's own initiative, be withdrawn by the Commissioner (see Division 5).

(f) A penalty notice enforcement order may, on application, be annulled by the Local Court. If the order is annulled, the alleged offence is to be heard and determined by the Local Court (see Division 5).

(2) This section does not affect the provisions of this Part that it summarises.

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The Roads and Traffic Authority of New South Wales v O'Reilly & Ors [2009] NSWSC 134 (12 March 2009)

NEW SOUTH WALES SUPREME COURT

CITATION:

The Roads and Traffic Authority of New South Wales v O'Reilly & Ors [2009] NSWSC 134

JURISDICTION:

FILE NUMBER(S):

14267/08

14268/08

14269/08

HEARING DATE(S):

5 March 2009

JUDGMENT DATE:

12 March 2009

PARTIES:

Plaintiff - The Roads and Traffic Authority of New South Wales

Defendant in 14267/08 - Raymond Christopher O'Reilly

Defendant in 14268/08 - Maxell Zhohthn Yarkin

Defendant in 14269/08 - Safwan Nizar Chalak

JUDGMENT OF:

Schmidt AJ

LOWER COURT JURISDICTION:

Local Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER:

Keogh LCM

LOWER COURT DATE OF DECISION:

23/06/08

COUNSEL:

Plaintiff - Mr T Lynch of counsel

Defendant in 14267/08 - Mr O'Reilly in person

Defendant in 14268/08 - Mr Yarkin in person

No appearance for Mr Chalak

SOLICITORS:

Plaintiff - Hunt and Hunt

CATCHWORDS:

APPEAL - Local Court decision - speeding offences - whether each defendant's mistake as to the applicable speed limit was a mistake of fact or a mistake of law - mistake of law - appeals upheld - orders made - costs

LEGISLATION CITED:

Australian Road Rules

Crimes (Appeal and Review) Act 2001

Criminal Code Act 1995 (Cth)

Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999

CATEGORY:

Principal judgment

CASES CITED:

Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493

Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536

TEXTS CITED:

DECISION:

1. The appeals are upheld; the Local Court’s orders are set aside and the Local Court is to resume the hearing of each matter.

2. The defendants to pay the plaintiff's costs of these proceedings.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

SCHMIDT AJ

Thursday, 12 March 2009

14267/08 THE ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v RAYMOND CHRISTOPER O'REILLY

14268/08 THE ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v MAXELL ZHOHTHN YARKIN

14269/08 THE ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v SAFWAN NIZAR CHALAK

JUDGMENT

1 HER HONOUR: These appeals are brought under s 56(1)(d) of the Crimes (Appeal and Review) Act 2001, from decisions of the Local Court, dismissing a number of court attendance notices issued to each of the three defendants. Each noticed alleged a speeding offence. Mr Chalak did not appear at the hearing. By consent of the other parties, the three appeals were heard together. In each case the plaintiff seeks orders setting aside the decision below and directing the Local Court to resume hearing of the matters, according to law.

2 The appeals concern two questions. Firstly, whether Magistrate Keogh misdirected herself in concluding that a mistake as to the speed limit applicable to a length of road was a mistake of fact, rather than a mistake of law and that the Rule in Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536 was consequently available as a defence. Secondly, whether the finding that each defendant's mistake as to the applicable speed limit was reasonably open on the evidence. The defence in each case was a belief that the speed limit was 70 kilometres. It was the plaintiff’s case that her Honour did not determine that issue, but instead determined whether there was a reasonable basis for ignorance of the applicable 60 kilometre speed limit. Ignorance of a speed limit of 60 kilometres could not be a basis for a belief that the speed limit was 70, which it was argued was the relevant question for any defence, had one been available.

3 There was no question that the plaintiff had established a prima facie case below, on the evidence led in each case. The speed limit was 60 kilometres per hour and each defendant admitted travelling beyond that speed at the relevant time. The defendant's evidence in each case was that he believed that the speed limit at the stretch of road in question was 70 kilometres per hour.

4 Each defendant gave evidence as to the circumstances in which he came to have that belief. In each case her Honour concluded that those circumstances were such that an honest and reasonable mistake as to the applicable speed limit had been established.

5 It was the plaintiff’s argument below that the speed limit posted in a particular area was a matter of law, not fact. That argument was not accepted. Her Honour was not referred to any authority on the point, but concluded that an error as to an applicable speed limit was a mistake of fact.

6 Her Honour ultimately took the view that there was no doubt that the limit was 60 kilometres, but that the defendants had each made an honest mistake of fact and thereupon dismissed all three court attendance notices.

7 In Proudman, Dixon CJ observed at :

As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence.

8 This was the test which her Honour applied. In doing so her Honour misdirected herself, the defence being governed by the Criminal Code Act 1995 (Cth), although it was accepted by the plaintiff that this was but a statutory form of the Proudman defence. The question raised on this appeal was whether it was an approach available to her Honour, given the plaintiff’s case that a mistake as to an applicable speed limit is not a mistake as to fact, but a mistake as to the law.

9 Her Honour found:

The fact ... that a speed limit applies generally is a question of law but as to where it applies must be a question of fact because you can only comply with it if there is a sign there telling you that in fact that speed limit as opposed to another speed ...

Consideration

10 There was no contest that Part 3 Rule 20 of the then applicable Australian Road Rules made it an offence to speed over the speed limit applying to the driver for the length of road where the driver was driving. The speed limit was fixed by signage. Rule 342 provided:

342 Traffic signs (except parking control signs) applying to a length of road

(1) A traffic sign (except a parking control sign) that applies to a length of road and to drivers applies to a driver driving on the length of road if the driver is driving in the same direction as a driver on the road who faces the sign before passing it.

Note: Length of road, parking control sign and traffic sign are defined in the dictionary.

(2) A traffic sign that applies to a length of road and to pedestrians applies to a pedestrian travelling on the length of road if the pedestrian is travelling in the same direction as a pedestrian on the road who faces the sign before passing it.

(3) The traffic sign applies to the driver or pedestrian even though the driver or pedestrian does not pass the sign.

Example. If a driver turns from a side road or private land onto a length of road to which a traffic sign applies, the traffic sign applies to the driver even though the driver does not pass the sign.

11 Regulations 33 and 34 of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 made the offence one of strict liability, for the purposes of the Criminal Code. A defence of mistaken but reasonable belief of facts is available for such an offence (see s 6.1 and s 9.2 of the Criminal Code). Section 9.2 provided:

9.2 Mistake of fact (strict liability)

(1) A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:

(a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and

(b) had those facts existed, the conduct would not have constituted an offence.

(2) A person may be regarded as having considered whether or not facts existed if:

(a) he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and

(b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.

Note: Section 6.2 prevents this section applying in situations of absolute liability.

12 As to a mistake of law, s 9.4 of the Criminal Code provided:

9.4 Mistake or ignorance of subordinate legislation

(1) A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of the subordinate legislation that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.

(2) Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if:

(a) the subordinate legislation is expressly to the contrary effect; or

(c) at the time of the conduct, the subordinate legislation:

(i) has not been made available to the public (by means of the Register under the Legislative Instruments Act 2003 or otherwise); and

(ii) has not otherwise been made available to persons likely to be affected by it in such a way that the person would have become aware of its contents by exercising due diligence.

(3) In this section:

"available" includes available by sale.

"subordinate legislation" means an instrument of a legislative character made directly or indirectly under an Act, or in force directly or indirectly under an Act.

13 While being addressed on whether the defendants’ mistake as to the applicable speed limit was a mistake of fact or law, her Honour referred to the High Court’s decision in Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493. It was not an authority with which the prosecutor was familiar, so it was not addressed and her Honour did not refer to it, in giving her decision.

14 In Ostrowski the High Court had to consider whether a mistake as to the law applicable to a particular activity being undertaken was an error of fact or an error of law. The High Court concluded that it was an error of law. The same question arose in these cases. It follows that there can be no question that the High Court’s approach to the question which had to be decided was binding on her Honour. For reasons which I will explain, it was established that her Honour failed to follow the High Court's approach.

15 In Ostrowski, the mistake being considered was a mistake as to the law applicable to lobster fishing in Western Australia. The respondent mistakenly believed that he was legally entitled to fish for lobsters. His mistake had arisen from incorrect information provided to him by the relevant Government Department. While the respondent’s resulting position excited some sympathy amongst members of the Bench, the way in which the error came to be made, did not assist him. It was observed by Gleeson CJ and Kirby J:

12 The only mistake that the respondent made was a mistake that resulted from his ignorance of the law. The acts of the respondent would have constituted a breach of reg 34 even if he had been given complete and accurate information by the Department. What the respondent's argument amounts to is that, in that event, he would not have done the acts. That is not the issue raised by s 24. It is beside the point. The magistrate, and the dissenting member of the Full Court, were right to hold that the case fell within s 22 of the Criminal Code, and not s 24.

13 This is not a case that gives rise to the difficulties that are sometimes involved in distinguishing between mistakes of law and mistakes of fact, or in applying the common law, or ss 22 and 24, to what are sometimes described as mixed questions of fact and law (Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 at 751; Von Lieven v Stewart (1990) 21 NSWLR 52 at 66-67). Here the mistake that was made, however it is characterised, was not relevant to any element of the offence charged. Rather, it was a mistake that resulted in ignorance of the existence of the prohibition contained in reg 34, that is to say, ignorance of the law.

16 Likewise, here the mistakes which the defendants made in driving in excess of the legal limit of 60 kilometres, flowed from their mistaken belief that the applicable speed limit was 70 kilometres. They were mistakes which flowed from the defendants' ignorance of the law, not from mistakes as to any physical element of the offences with which they had been charged. That they would not have driven at excessive speed, had they known what the legal limit was, is beside the point, on their Honour’s approach.

17 McHugh J took a similar view, observing that:

[46] Thus, it is no defence to a criminal charge that the defendant believed that his or her actions were not regulated by law or that his or her actions satisfied the provisions of a law. Such beliefs are mistakes of law, not mistakes of fact. In Von Lieven v Stewart (1990) 21 NSWLR 52, the Court of Appeal of New South Wales held that the belief by a promoter of a scheme operated by a company that the scheme "neither involved an offer to the public nor a prescribed interest" (Von Lieven (1990) 21 NSWLR 52 at 55, per Clarke JA) and accordingly did not contravene the Companies (New South Wales) Code or the Securities Industry (New South Wales) Code was a mistake of law, not fact. It provided no defence to charges of breaching provisions of those Codes. Clarke JA said that, once the defendant knows all the facts which constitute the elements of the offence, a mistake as to their legal effect is not a defence to a criminal charge (Von Lieven (1990) 21 NSWLR 52 at 55). Handley JA (with whom Mahoney JA agreed) said (Von Lieven (1990) 21 NSWLR 52 at 66-67) :

"[A] belief or assumption that the acts in question are lawful either because they are unregulated, or because the requirements of the law have been satisfied, cannot excuse in cases such as this ... The only excuse is the existence of an actual or positive belief, based on reasonable grounds, in the existence of some fact or facts which, if true, would make the act in question innocent."

18 This led his Honour to conclude:

[49] The statement of Handley JA in Von Lieven, set out above, exactly covers this case. Mr Palmer was the holder of a commercial fishing licence. He fished for rock lobsters in the area described in the Table to reg 34 of the Regulations. He intended to fish for rock lobsters in that area and he knew that he was in that part of the Indian Ocean described in the Table to that regulation. Mr Palmer made no mistake as to any of the factual elements of the charge. His mistake was that he believed that the law of Western Australia did not prohibit or regulate fishing for rock lobsters in that area. His mistaken belief was not a mistake as to a fact or "state of things", but a mistake as to the operation of the law. His case fell within s 22, not s 24, of the Criminal Code. It was ignorance of the law that caused him to make the mistake that he did. Under s 22 of the Criminal Code, ignorance of the law is not an excuse for an act or omission that "would otherwise constitute an offence, unless knowledge of the law by [the] offender is expressly declared to be an element of the offence".

[50] The mistake made by Mr Palmer may be contrasted with that made by another Western Australian rock lobster fisherman, Mr Stanton, who successfully relied on s 24 of the Criminal Code as a defence to a charge under the Act of selling undersized rock lobsters [Pearce [1984] WAR 359.]. In Pearce v Stanton [[1984] WAR 359.], the s 24 defence succeeded because Mr Stanton was found to have held an honest and reasonable belief that the lobsters were the correct size. Such a belief -- as to the actual size of the lobsters -- was a belief in the existence of a fact which constituted one of the elements of the strict liability offence. If, by contrast, Mr Stanton had held a mistaken belief as to the minimum size of rock lobster permitted by law, this would have been a mistake of law. The belief in those circumstances would have been based on a misunderstanding of the regulations governing the minimum lobster size.

19 In his submissions Mr Yarkin sought to rely on this latter example, but it cannot assist him. in this case it was each defendant’s mistaken belief that the legal speed limit was 70 kilometres, which led him to drive in excess of 60 kilometres. That was not a mistake as to a fact, or a state of things, constituting any factual element of the offences, as would have been the case, had the defendants mistakenly believed, for example, that they were driving at 60 kilometres per hour, when they were in fact driving at 70, because of some malfunction in their vehicles. The defendants' only error was a mistake as to what speed limit the law imposed at that particular point of the road. On McHugh J’s approach that is a mistake of law.

20 Callinan and Heydon JJ came to similar conclusions, finally observing:

90 The difficulty for the respondent is that there were here a series of mistakes, the one to which Olsson AUJ referred, the actual decision to rely on the information with which he had been provided, and the actual reliance, by fishing in the embargoed waters. The last is a different mistake from, for example, a mistake as to the location of his vessel or his lobster pots. The last, it can be seen, is discrete in time, place and physical activity from the other two, although but for them it is unlikely that it would have been made. The offence of which the respondent was convicted was not of failing to obtain, or hold and rely on complete and accurate materials, but of fishing where professional fishing was impermissible. The elements of the offence consisted of fishing in the embargoed waters, an activity which the respondent knew to be proscribed. Unfortunately, in the circumstances he could be no less guilty than a motorist who has done everything reasonably possible to ascertain the speed limits on a stretch of roadway along which he is to travel but having failed to do so, in one or more instances, exceeds those limits because he was unaware of them.

21 The example which their Honours used is exactly this case. The defendants each exceeded the speed limit which they said they were not aware of, for reasons which her Honour accepted amounted to honest and reasonable mistakes. There is no question that the defendants knew that driving above the legal limit was illegal, their only mistake was as to what the legal limit was. The plaintiff challenges whether the conclusion that there had been any honest and reasonable mistake as to the speed limit was open on the evidence. Accepting for the moment that it was, given that the elements of the offence are established when a driver drives at a speed in excess of the applicable limit, failing to observe the limit only because the defendants mistakenly believed that the limit was higher than it in fact was, amounts to an error of law, not one of fact, on their Honour’s approach.

22 Given this conclusion, it follows that the appeals must be upheld and the matters returned to the Local Court for further hearing. It is unnecessary to consider the second limb of the appeal, which was that her Honour erred in approaching the question of honest and reasonable mistake. That defence was not one available to the defendants, given that theirs were mistakes of law, not mistakes of fact. The plaintiff accepted that the matters which the defendants wished to rely on, to explain how they came to a mistaken belief as to the applicable speed limit, will be relevant to the questions of whether any penalty should be imposed for the offences in question and if so, what penalty. Those matters do not, however, require this Court's consideration.

Orders

23 For the reasons given, I order that:

1. The appeals are upheld; the Local Court’s orders are set aside and the Local Court resume the hearing of each matter.

2. The defendants pay the plaintiff's costs of these proceedings.