R v Crabbe[2016] QCA 7

 COURT OF APPEAL

HOLMES CJ

MORRISON JA

PHILIP McMURDO JA

CA No 154 of 2015

DC No 90 of 2014

R

v

CRABBE, John FrederickApplicant

BRISBANE

TUESDAY, 2 FEBRUARY 2016

JUDGMENT

THE CHIEF JUSTICE:  The applicant seeks an extension of time within which to seek leave to appeal a District Court judge’s decision for dismissing his appeal against a conviction for exceeding the speed limit.  The District Court judgment was given on 29 May 2015; the application for leave to appeal was filed on 18 July 2015.  The applicant attributes the delay to difficulties with his computer and the fact that having posted his application on 26 June 2015, on 9 July 2015 he received advice from the Deputy Registrar of the Court of Appeal that he had used the wrong form.

There being some explanation of the delay, then, I will turn to consider the bases on which the applicant says he would seek leave to appeal.  In order to prove the speeding offence, the prosecution at first instance produced a photograph under s 120(2) of the Transport Operations (Road Use Management) Act 1995, certified by an official in terms of that provision.  According to the judgment below, it showed the vehicle’s registration plates and the speed travelled.  The registered operator of the vehicle had given a notice under s 114(3)(b) of the Act to the effect that he, or it, was not the person in charge of the vehicle at the time the speeding offence happened and nominated someone else.  Eventually, the applicant was named in a further notice under that section as the person in charge of the vehicle at the time the speeding offence happened.  That made him by definition, under s 113 of the Act, the person in charge of the vehicle for the purposes of the statute.  Once that was established by s 114(1) of the Act, and once it was proved that the speeding offence occurred, he was deemed to have committed the offence having a defence only if he proved, not only that he was not the driver, but that he had notified the Commissioner or Chief Executive of the name and address of the person actually in charge of the vehicle at the relevant time, or alternatively that he could not with reasonable diligence have ascertained who that person was.  For the purposes of such a defence he was required to give notification by statutory declaration within 28 days of receiving notice of the offence.

The applicant did not take that step.  His argument before the District Court judge was that the statutory requirement contravened the presumption of innocence, breached his right of silence and required him to produce a thing which could expose him to penalty and breached his privilege against self-incrimination.  The last was on the basis that if he were to nominate a person wrongly it would be a criminal offence.  That suggests some confusion as to the nature of the privilege.

The District Court judge dismissed the appeal, noting that the Magistrate had properly recognised the burden on the prosecution to prove its case.  His Honour observed that the common law privilege against self-incrimination and right of silence were subject to statutory modification, and there was, in any event, no reason to suppose that giving a notice would have amounted to self-incrimination.  His Honour was plainly correct.  The Transport Operations (Road Use Management) Act by s 114(1) attributes criminal responsibility for the offence of speeding not only to the driver, but to the person in charge of the vehicle; see Attorney-General Queensland v Morris [2015] QCA 112.  The prosecution had still to prove its case that the applicant was the person in charge of the vehicle within the meaning of the statutory definition, that is, that he had been nominated in a s 114(3) notice as driver.

The applicant did not have to give notification under s 114(3), but his failure to do so meant not defence was available on the basis of his not being the driver.  Arguments before the District Court judge that the person who nominated him as driver could not be relied on as accurate and that he had produced evidence in the Magistrates Court showing that he took a different route were, accordingly, irrelevant.  And to give a truthful notice that he was either not the driver, or could not with reasonable diligence have ascertained who was, plainly could not, as his Honour considered, have resulted in self-incrimination.

The District Court judge also correctly rejected arguments made again here that the certified photograph of the vehicle showing its number plate and indicating that it was travelling in excess of the speed limit under s 120 of the Act did not prove the type, colour or make of the vehicle, and that it could not be ruled out that it was displaying false numberplates.

The prosecution having produced a duly certified photograph under s 122 of the Act, there was evidence before the Magistrate of what was contained in the photograph, including any marking made by the photographic detection device.  The Magistrate was entitled to act on that evidence and not to speculate as to the possibility of the numberplates being false.  The other particulars of the vehicle to which the application referred were not essential to establishing the identification of the vehicle if the Magistrate was satisfied on the basis of the evidence as to the registration plates.

There was nothing pointed to which would indicate that the reasoning of the judge at first instance was in any way wrong.  The proposed appeal has no prospect of success.  I would dismiss the application for an extension of time.

MORRISON JA:  I agree.

PHILIP McMURDO JA:  I agree.

THE CHIEF JUSTICE:  The application for an extension of time is dismissed.