Are Partially Covered Speed Limit Signs a Defence?
In the recent decision of RTA v Bourke [2010] NSWSC 559 the Supreme Court made clear that “inappropriateness”, “insufficiency”, or “inadequacy” of a speed limit sign is not the test for a defence against the strict liability of speeding.
B was caught travelling at 62km/hr in a 50km zone. An infringement notice issued. It was challenged. B claimed he did not see or have knowledge of the sign (it was partly obscured) and the RTA had given insufficient or inadequate notice of the change of speed zones.
Rule 20 of the Road Rules 2008 establishes three elements to a speeding offence i.e. the defendant is the driver of a vehicle, the speed limit is exceeded, and the speed limit is applied to that particular length of road. A driver commits the offence, even though they may have no subjective knowledge that the speed limit is being exceeded, and requires no mens rea (Roads and Traffic Authority of New South Wales v O’Reilly & Ors [2009] NSWSC 134 per Schmidt AJ).
Rule 21 specifies the speed limit is set by reference to a “speed limit sign” without really defining what a speed limit sign is.
At first instance the learned magistrate agreed with the defendant that there was insufficient notice of the speed change, which was further supported by the RTA’s decision to upgrade the signs.
On appeal, Rothman J took note that in the case of a strict liability offence, the relevant determinant is not whether the sign was insufficient notice, but whether “the structure ceases to be a sign when it cannot be seen”. The question was not whether the defendant saw the sign but whether it was possible for the sign to be seen.
It now appears clear, even though through the RTA’s actions of replacing signs, it is apparent, partly obscured signs are no defence to a charge of speeding.
