Dixon v Reeves[2012] QDC 9

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for extension of time for the filing of a notice of appeal to this Court.
2. [2]
   The background to the application is that the respondent was charged with a speeding offence alleging that on the 2nd of September 2010 he exceeded the speed limit of 60 kilometres per hour on the Mount Gravatt-Capalaba Road at Mount Gravatt by driving a vehicle at 77 kilometres per hour.  The prosecution case is that he was detected by a photographic detection device.
3. [3]
   The matter came on before the learned Magistrate at the Holland Park Magistrates Court on the 19th of July 2011.  The respondent pleaded not guilty.  The prosecution, in the course of its case, tendered a number of documentary exhibits.  The prosecution closed its case, however the learned Magistrate determined that one of the documentary exhibits was not valid.  This exhibit was Exhibit number 12 before th e learned magistrate.  It was an instrument of delegation/authority, delegation number D25.11.  It was signed the 1st day of December 1999 by R N MacGibbon, Acting Commissioner.  However, the learned Magistrate said that Mr MacGibbon was not the Commissioner.  Shortly after that time Mr Atkinson became the Police Commissioner, therefore he was not satisfied that the instrument of delegation should be considered to be a current instrument of delegation.  Therefore the learned Magistrate found the charge not proven and found the respondent not guilty of the charge.
4. [4]
   The applicant had one month within which to appeal against the learned Magistrate's decision.  However, six days out of time the applicant did file the notice of application for extension of time and the notice of appeal.  The applicant states that he filed the notice of appeal out of time because of administrative oversight and the notice of appeal had been prepared in time and the delay was short and no prejudice has occurred to the respondent.
5. [5]
   The application for the extension of time is opposed.  Having considered the arguments in the outline of submissions by both the applicant and the respondent I have come to the view that as the delay was of short duration and no prejudice has been demonstrated by the respondent I give leave to the applicant to appeal.  I extend the time for filing the notice of appeal to the 24th of August 2011.
6. [6]
   The parties have also made submissions about the appeal in the event that I did extend the time for the filing of the notice of appeal.  The respondent submits that the learned Magistrate's conclusions were correct and should not be overturned.
7. [7]
   Returning to Exhibit 12, which was held by the learned Magistrate to be invalid, it does on its face show that it was signed the first day of December 1999 by R N McGibbon, acting Commissioner, and for the purposes of this appeal I assume, as the learned Magistrate did, that at a time after R N McGibbon, acting Commissioner, signed the instrument of delegation/authority Delegation No D25.11, Mr Atkinson became the Commissioner.  The actual delegation must have been tendered by the prosecution as proof that the Senior Sergeant from the Traffic Camera Office had the delegated powers of the Commissioner.
8. [8]
   The submissions by the applicant on this appeal also refer to Exhibit 11.  Exhibit 11 is a certificate by Jeffrey A Dixon, occupying the office of Senior Sergeant, Traffic Camera Office, certifying that the respondent had been duly served with the infringement notice.  The prosecution says that the resulting effect of these certificates was that the defendant was proven to be the person who was driving the vehicle at the relevant time.  However, the efficacy of Exhibit 11 is predicated upon the validity of the delegation.  Without proof of it the certificate is naturally incapable of establishing the defendant was the driver and the offence is therefore not able to be proven.
9. [9]
   The prosecution point out - and I accept this on the appeal - that the respondent did not produce any evidence challenging the accuracy of the certificates.  Therefore, it is important to determine whether the learned Magistrate was correct as to the view he took of Exhibit 12, the delegation.  This is not a matter of discretion, it is a matter of law.
10. [10]
    Section 4.10 of the Police Service Administration Act 1990 permits the Commissioner to make delegations.  The power to receive on behalf of the Commissioner a statutory declaration of the name and address of the person who drove the vehicle at the time of the prescribed offence arises from sections 114 subsection 4 and 5 of TORUM.  That there is a requirement to prove the delegation by admissible evidence is established by Dixon v LeKich [2010] QCA 213.
11. [11]
    Also, the Acts Interpretation Act is relevant in this case.  Section 27 subsection 8A of the Acts Interpretation Act provides delegation of functions or powers.  8A, "If (a) the delegator is a specified officer or the holder of a specified office and (b) the person who was the specified officer or holder of the specified office when the delegation was made ceases to be the officer or holder of the office, then (c) the delegation continues in force, and (d) the person for the time being occupying or acting in the office concerned is taken to be the delegator for the purposes of this section."
12. [12]
    The legislation provides that the courts are to take judicial notice of the signature of the Commissioner or any person who at any time was the Commissioner, section 4 subsection 12 subparagraph 2(a) of the Police Service Administration Act.  In my opinion the legislation supports the view that a newly appointed Commissioner is not required to exercise afresh functions previously exercised by the previous Commissioner. 
13. [13]
    I agree with the submission made by the applicant on the hearing of this appeal that it is the office of the Commissioner which continues and not the individual.  Therefore, once a delegation has been made it continues in its validity.
14. [14]
    Support for this view also arises from section 10 subsection 12 of the Police Service Administration Act which, with respect to legal proceedings, provides that any proceedings or any action, claim or demand to which the Commissioner for the time being is a party does not abate or terminate by reason that such party has ceased to be the Commissioner.  Again, this would seem to indicate that it is not the individual that is important it is the office of Commissioner which continues.
15. [15]
    Therefore, I have come to the view that the learned Magistrate's conclusion was in error as a matter of law.  It may be the Commissioner changed, but that did not in my view lead to the consequence that the previous delegation signed by R N McGibbon on 1 December 1999 was invalid.
16. [16]
    The respondent also on the hearing of this appeal argued that the learned Magistrate's decision could be supported on further grounds.  The first of these is that Mr Dixon, to be eligible for delegation under the Act or TORUM, must have held the rank of Sergeant or above at the time the previous Commissioner of Police was in office.  That is, he was not a Sergeant or above at the time of the previous Police Commissioner's time in office.  In my view, there was no support for this submission before the learned Magistrate. 
17. [17]
    The learned Magistrate would have been incorrect to have acted on that submission. 
18. [18]
    Also, it was submitted by the applicant on the hearing of this appeal that there had not been proven correct calibration.  Again, the learned Magistrate would have been in error to have acted on this submission.  Exhibit 3 that was before the learned Magistrate clearly proved these matters and the respondent had not given notice placing these matters in issue.
19. [19]
    Therefore, I allow the appeal.  I order the decision of the learned Magistrate made on the 19th of July 2011 be set aside.  I remit the proceedings to the Holland Park Magistrate Court for a hearing by a Magistrate other than that who heard the case originally and in accordance with the reasons of this Court for allowing the appeal.
20. [20]
    I appreciate that the proceedings may be causing the respondent stress.  However, unfortunately, the matter must be dealt with in the way I have ruled and the matter proceed again before another Magistrate.