Pullen v Commissioner of Police
[2014] QDC 133
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- Pullen v Commissioner of Police[2014] QDC 133
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Pullen v Commissioner of Police[2014] QDC 133
Pullen v Commissioner of Police[2014] QDC 133
DISTRICT COURT OF QUEENSLAND
CITATION: | Pullen v Commissioner of Police [2014] QDC 133 |
PARTIES: | KEVIN MICHAEL PULLEN (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | D199/13 |
DIVISION: | Appellate |
PROCEEDING: | Section 222 appeal |
ORIGINATING COURT: | Maroochydore Magistrates Court |
DELIVERED ON: | 12th of June 2014 |
DELIVERED AT: | Maroochydore District Court |
HEARING DATE: | 4 April 2014, written submissions received thereafter, further hearing 16 May 2014, written submissions received up to 4 June 2014. |
JUDGE: | Robertson DCJ |
ORDER: | Appeal Dismissed |
CATCHWORDS: LEGISLATION:
CASES: | APPEAL AGAINST CONVICTION AND SENTENCE FOR SPEEDING – where the evidence was essentially circumstantial; whether the prosecution proved beyond reasonable doubt that the only rational inference that could be drawn from the circumstances was the guilt of the Appellant – where the learned Magistrate ruled the Appellant’s notice of challenge was not in the approved form – where the Appellant was not entitled to challenge “the way in which the radar or speed detection device was used” – whether errors of law amounted to a miscarriage of justice. State Penalties Enforcement Act 1999 Transport Operations (Road Use Management) Act 1995 Justices Act 1886 Commissioner of Police v Al Shakarji [2013] QCA 319 Fox v Percy (2003) 214 CLR 118 Hamilton v Bennett [2011] QDC 16 Teelow v Commissioner of Police [2009] QCA 84 Tierney v Commissioner of Police [2011] QCA 327 |
COUNSEL: | Mr Gawrych (ODPP) for the respondent Appellant in person |
SOLICITORS: |
|
- [1]On 6 November 2013 the appellant was convicted of disobeying the speed limit on 2 May 2012 at Sugarbag Road, Little Mountain in the State of Queensland. On that day he was fined $500 and ordered to pay $84.40 in court costs. Both sums were referred to SPER. The appellant appeals against both conviction and sentence.
- [2]As confirmed recently by the Court of Appeal in Commissioner of Police v Al Shakarji [2013] QCA 319, an appeal of this nature is by way of rehearing on the evidence before the Magistrate. As Morrison JA noted in that case, this means that I am bound to follow the prescription of the High Court in Fox v Percy (2003) 214 CLR 118 at 126-127, and conduct a real review of the evidence before her Honour and make my own determination of relevant facts in issue, giving due deference and attaching due weight to her Honour’s views.
- [3]In this appeal there is no application for leave to adduce fresh evidence. As Margaret Wilson J noted in Al Shakarji at para [65], a rehearing is to be on the evidence given at the trial; that is a rehearing in the technical sense for a review of the record below, rather than a complete fresh hearing.
- [4]It is well established that to succeed on his appeal, Mr Pullen must establish some legal, factual or discretionary error: Teelow v Commissioner of Police [2009] QCA 84 at paras [3]-[14]; Tierney v Commissioner of Police [2011] QCA 327.
- [5]On the hearing of an appeal the court may confirm, set aside or vary the appealed order or make any order in the matter the Judge considers just (s 225(1) Justices Act 1886). For subsection (1), the Judge may exercise any power that could have been exercised by whoever made the order appealed against (s 225(3)).
The proceedings below
- [6]The summary hearing commenced before her Honour Magistrate Tonkin on 25 January 2013. A number of documents were tendered. Of particular relevance are Exhibits 1 and 3. Exhibit 1 contained a number of photographs of a Suncoast taxi cab registered number T47675 and was appropriately certified pursuant to s 120(2) of the Transport Operations (Road Use Management) Act 1995 (“the TORUM”) as being an image properly taken by a photographic detection device being GATSO Speed Camera System Model Radar AUS 24 bearing the serial number 537; and the photographic detection device was used at a specified location, namely Sugarbag Road, Little Mountain at 15.47 on 2 May 2012. Exhibit 3 is a certificate pursuant to s 120(2A) of the TORUM certifying that the device had been tested on 6 December 2011 at 12.20 p.m. in accordance with the specifications of the device manufacturer; and any furthermore requirements about calibration testing prescribed under regulation; and that such radar speed detection device was found to be producing accurate results at the time of the testing. As a matter of law, the certificate remained in effect until 6 December 2012.
- [7]A number of other certificates were tendered which are really now not in issue. These certificates were tendered pursuant to s 157 of the State Penalties Enforcement Act 1999 (“the SPER Act”). The effect of these certificates is to certify that Infringement Notice 0154458722 for the offence of exceeding the speed limit involved vehicle bearing registration no. T47675, had been served on the registered owner Craig McFadden, Mr McFadden had notified the Commissioner by a valid statutory declaration nominating the appellant as being the person in charge of the vehicle at the time the offence happened; and the Infringement Notice had been forwarded to the appellant. It was common ground that the appellant had never filed a statutory declaration with the Commissioner certifying that the vehicle was being driven by someone else at the time of the offence or that the user of the vehicle at the time was unknown.
- [8]At the conclusion of the prosecution case her Honour advised the appellant of his rights and he gave evidence. He gave evidence to the effect that he was a taxi driver who drove that vehicle. As I have noted, Mr Pullen found it difficult to understand the difference between making submissions or arguments and giving evidence; but her Honour patiently explained to him and directed him to give evidence at this stage. He gave evidence about a document that he described as a spreadsheet that he kept on his computer at the end of a shift. Eventually he tendered the shift spreadsheet and it was marked as Exhibit 15. He acknowledged that he was a taxi driver and that he drove that particular vehicle. He gave evidence that the shift spreadsheet indicated that he commenced his shift in relation to that vehicle at 4 p.m. on 2 May 2012. He told her Honour that the document was accurate to the nearest 15 minutes. He told her that he had logged on on that particular day according to his records at around about 4 o’clock to the nearest 15 minutes. Later in his evidence he acknowledged that he had very little independent recollection of the events of that day, but from his own records he gave evidence that he assumed responsibility for the cab at 4 p.m. on that day to the nearest 15 minutes. He told her Honour that he always picked up the cab from the owner’s address which was 13 King Orchard Drive, Little Mountain. He told her Honour that “because Sugarbag Road is so close to King Orchard Drive, you know, yes, I thought I could have been the driver just going out on the shift or it could have been a previous driver coming back on his shift. Very close to the – to the changeover address.”
- [9]He told her Honour that he had written to the Queensland Police Service, advising the infringement notice did not state the exact location of the camera and the direction of traffic or travel of the vehicle when the offence was committed. Although not tendered, that correspondence is on file. Mr Pullen was advised by letter dated 20 August 2012 that the vehicle was travelling north on Sugarbag Road, Little Mountain at the time of the alleged offence, but there was no information given as to the location of the speed detection device. With that letter was attached a statutory declaration completed by Mr McFadden (the owner of the vehicle) nominating Mr Pullen as the person in charge of the vehicle at the time of the alleged offence.
- [10]In this part of the transcript of the appellant’s evidence commencing at 1-31 (25 January 2013), there is a deal of confusion as to exactly what Mr Pullen was trying to say to her Honour. It is apparent that he was arguing that Sugarbag Road, at the point where his vehicle was detected, does not run north-south but runs east-west and he was therefore concerned that the police vehicle containing the camera may have been in a different position. None of this is particularly clear, as Mr Pullen proved on that day, as he did subsequently, to be inattentive to her Honour’s questioning and to be particularly confusing in some of his responses as to exactly what his complaint was. In any event, this led to the Prosecutor raising whether or not Mr Pullen’s evidence was an attempt to “challenge the time at or way in which radar or speed detection device was used, or the accuracy of the device”, a phrase used by her Honour at line 20, p 1-35. As can be seen, these are references to phrases in s 120 of the TORUM.
- [11]Her Honour pointed out that the appellant was required to give notice of any such challenge under the TORUM. In any event, the proceedings were adjourned part heard to 9.30 a.m. on 10 April 2013 to enable the appellant to provide a notice of challenge. The police Prosecutor indicated to her Honour that he would provide Mr Pullen with the appropriate form. The further hearing was adjourned to 10 April; however it was adjourned at prosecution request because the relevant officer was on leave. At that stage there was no suggestion that Mr Pullen had given a notice and/or that the notice was defective. On that day it was adjourned to 7 August 2013. It was further adjourned, because the original Prosecutor was not available until 6 November 2013 when the matter proceeded to a completed hearing, and ultimately, after some consideration, to her Honour’s decision.
- [12]Her Honour indicated at the outset of the resumed hearing on 6 November 2013 that the prosecution had endeavoured to bring on a s 83A directions hearing in relation to the appellant’s notice of challenge but that she determined that it would be entertained at the trial. Mr Pullen complains about this decision as a ground of appeal. It is difficult to see how that can be sustained given that her Honour then proceeded to fully hear an application made by the prosecution in relation to Mr Pullen’s challenge.
- [13]The Prosecutor made application for an order that the notice of challenge provided by the appellant was ineffective by reference to s 120(8) of the TORUM. Exhibit 17 was tendered. Rather than being in the approved form, it is in the form of a letter and is relevantly in these terms:
“I intend to challenge the way in which the radar or laser speed detection device was used.
My grounds for this challenge are that the police officer has provided in written evidence incorrect data on the location and setup of said radar or laser speed detection device.”
- [14]The Prosecutor confirmed to her Honour that he had provided Mr Pullen with the appropriate form and the appellant did not dispute that. This is indirectly raised as a ground of appeal. Her Honour heard argument from both the Prosecutor and the appellant, and ruled that the letter (Exhibit 17) was not in the approved form and therefore the appellant was not entitled to challenge “the way in which the radar or speed detection device was used”.
- [15]Her Honour ruled, however, by reference to Hamilton v Bennett [2011] QDC 16 that:
“He is not disentitled from asking questions of prosecution witnesses… about the setup of the device and the like as opposed to the manner of the operation of the device.”
- [16]She then gave leave for the prosecutor to reopen and the operator of the device, Senior Constable Ginges, was called to give evidence.
- [17]He gave evidence that he was from the Nambour Road Policing Unit, and 2 May 2012 was on speed camera duties, and the camera referred to in Exhibit 1 was positioned in a black Holden Colorado unmarked police vehicle for speed detection purposes.
- [18]He gave evidence that he arrived in Sugarbag Road, Little Mountain at 10 minutes to 2 on the afternoon of 2 May 2012 and positioned the vehicle at a point which he described as being of sufficient length along Sugarbag Road to ensure that the 60 km/h speed signs were clearly visible for vehicles approaching the camera. He sat in the front seat of the motor vehicle for about three hours and the camera faced backwards. His job was to monitor the device to make sure it was working correctly. If a vehicle is speeding, the camera takes a photo of it, and he then wrote down in the reporting sheet certain information to which later reference is made. 120 vehicles were registered as speeding in that three hour period. As he told Mr Pullen later, only vehicles that were travelling above 70 km/hr were to receive an infringement notice as a matter of policy directive for which he had no responsibility.
- [19]When questioned by the Prosecutor, the police officer marked on an aerial map produced from Google Maps approximately where he said the vehicle was positioned. This can be seen as a red cross and circle on Exhibit 18.
- [20]During the proceedings on 25 March 2013 a document described as the speed camera records of operation was tendered. I have been unable to locate the actual exhibit but I have located a copy which I have marked with an orange certificate with the writing “Exhibit 14” on it for identification purposes. On that document he has marked the position of the vehicle which he has indicated as being not to scale with the direction of Sugarbag Road travelling towards Sunset Drive as north.
- [21]Mr Pullen cross-examined the police officer in relation to Exhibit 14. The police officer conceded that his assumption that Sugarbag Road at that point ran in a north-south direction was incorrect. He conceded that it was more like north-east.
- [22]Consistently with her Honour’s ruling, Mr Pullen was permitted to cross-examine the police officer about the setup of the device as opposed to the manner of its operation. He was also permitted to cross-examine as to the position of the vehicle. This he did by reference to the direction in which Sugarbag Road ran at that position faced, and he also asked questions by reference to a Google Map which he had produced using a website, locates.com.au, in which the user is able to enter the latitude and longitude co-ordinates which will then indicate the exact point on the map represented by those co-ordinates. The appellant did not seek to challenge the accuracy of those co-ordinates, which along with the other evidence focussed on s 120(2)(a) of the TORUM. He was able to do this because on Exhibit 14 Senior Constable Ginges had recorded, by use of a GPS at the time the vehicle was deployed on Sugarbag Road, the latitude and longitude of the vehicle’s position. This is represented by the blue dot to the left of Exhibit 22 which, when compared with Exhibit 18, indicates that the police officer’s assumption as to where the vehicle was situated was extremely accurate. As a matter of commonsense the direction in which the road runs at a particular point is irrelevant to the s 120(2)(a) issue if one has the exact co-ordinates of a particular point on a roadway.
- [23]It follows that although Mr Pullen was permitted to cross-examine as to the specified location, the effect of the evidence that he placed before the police officer was not sufficient to overcome the evidentiary presumptions in s 120(2) of the TORUM. In reality he was not challenging the way in which the device was operated. He was permitted to fully explore the issues raised in his letter of objection.
- [24]The appellant then returned to the witness box and was cross-examined. He agreed that he had not nominated another driver, but he did put in issue that he was the driver. He agreed that he was employed at the relevant time as a taxi driver, and drove the vehicle recorded in the photograph. The Prosecutor put to him that he was the driver. The relevant portion of the transcript is at 1-42 (6 November 2013):
“I’m suggesting that you were driving the vehicle at that time?-- I don’t see any proof that I was driving the vehicle and in fact my - my records suggest that it would be virtually impossible for me to be driving the vehicle at that time at that location.
Why do you say it’s impossible?-- Well the vehicle - the so called changeover point is at the owner’s address which is 13 King Orchard Drive. I tendered a document that shows that in relation to 60 Sugarbag Road it’s about two kilometre distance. My shift report says that I started at 4 o’clock to the nearest 15 minutes. If I’d started closer to quarter to 4 it would have been quarter to 4 on my - on my shift. I think it would be physically impossible for me unless I was rapidly exceeding the speed limit, about 200 kilometres an hour, to get from the pickup point to the alleged - well, to where the vehicle was photographed.
It’s true though isn’t it that you have a poor recollection of what happened that day?-- I have a poor recollection of what happened on that day. On what basis do you make that comment?
Well in your evidence you said I don’t have an independent recollection without the aid of your timing schedule?-- Okay. Yes, I didn’t recall – I don’t recall all of my shifts at any particular time, no, and certainly not to, you know, 12 months after the event. I would have to rely on my records to – to refresh my mind. Do you know what your shift was 12 months ago?”
- [25]At that point her Honour directed Mr Pullen to answer questions, not ask questions. The Prosecutor continued:
“So it’s true isn’t it that at 3.47 p.m. you could have been driving the vehicle couldn’t you?-- Unlikely because my records reflect that that would be most unlikely. I could not get to that point from having collected the vehicle from its – from the changeover point to that – to that – to that location.
But certainly you haven’t nominated another driver have you?-- No, I don’t know who the other driver would be.
Well how many people drive the taxi?-- Well there are 14 shifts in a week. About that time, I think, from memory there were about 10 to 12 drivers that were doing the shifts.
And you’ve made no inquiries with the other drivers have you?-- No, your Honour. No sir.”
- [26]Submissions were then made. The Prosecutor submitted that the prosecution had proved its case on the basis of the legal effect of the tendered documentary exhibits. He submitted the error conceded by the police officer about the direction in which the road ran was irrelevant to any issue in dispute. He submitted that because the owner had nominated the appellant as the operator of the vehicle at the time the prosecution had proved its case beyond reasonable doubt.
- [27]The appellant then addressed her Honour. He focussed on whether or not the prosecution had satisfied her Honour beyond a reasonable doubt that he was the driver of the vehicle at the relevant time. He made reference to his evidence about the distance between where the vehicle was collected by him on that day at 13 King Orchard Drive, Little Mountain and the point where it was detected speeding. He submitted that the officer’s admitted mistake about the direction of Sugarbag Road was fatal to the prosecution case.
Her Honour’s decision
- [28]There were really two issues for her Honour to determine. The first was whether the prosecution had proved to her satisfaction beyond reasonable doubt that Mr Pullen was the driver, and the second was that the vehicle was speeding at the time recorded by the camera.
- [29]At the outset she identified provisions of the SPER Act as being very relevant to her decision. She referred to s 19 of the SPER Act. Section 19 is relevantly in these terms:
“19 Effect of known user declaration
- (1)This section applies if—
- (a)an infringement notice offence involving a vehicle happens; and
- (b)an infringement notice for the offence is served on the person who is the owner of the vehicle at the relevant time; and
- (c)the person makes and gives to the administering authority a known user declaration for the vehicle.
- (2)This section and section 17 apply as if the person named in the declaration as the person in charge of the vehicle at the relevant time (the user) were the owner of the vehicle at that time.
- (3)A proceeding for the offence may be started against the user only if a copy of the declaration has been served on the user.
- (4)In a proceeding for the offence against the user, the declaration is evidence that the user was in charge of the vehicle at the relevant time.
- (5)In a proceeding for the offence against the owner mentioned in subsection (1)(b), a court must not find the owner guilty of the offence if it is satisfied, whether on the statements contained in the declaration or otherwise, the owner was not in charge of the vehicle at the relevant time.”
- [30]Her Honour correctly referred back to s 17, which would have entitled Mr Pullen to himself make and give to the Commissioner of Police “a known or unknown user declaration”. As I have noted it is common ground that he did not do this. His evidence was that he did not know who was using the vehicle or that he was not certain. However he did not give an unknown user declaration.
- [31]Her Honour then referred to the appellant’s own evidence about picking up the vehicle 15 minutes either side of 4 o’clock on 2 May 2012. She then, at p 3 of her decision, proceeded to deal with s 21 of the SPER Act. Her Honour said this at p 3 lines 25-32:
“Accordingly, the legislation casts upon the person in receipt of the infringement notice, whether that be the owner or indeed the person nominated by the owner as the known user who disputes that they are a known user, to take steps to inquire – and this is a resetting of the onus – ‘in relation to the identity of the driver to make reasonable inquiries and carry them out with appropriate diligence in order to seek to ascertain the identity of the owner in order to’ – as I say – ‘shift the liability’.”
- [32]She then referred to the fact that the appellant had given evidence that he did not make any inquiries about who the driver might have been, and this led her Honour to be satisfied beyond a reasonable doubt that he was the driver at the relevant time. At this stage in her judgment, commencing at p 3 line 44 to p 4 line 5, her Honour seemed to blend together what she described correctly as a rebuttable presumption arising as a result of s 19(4) in the circumstances of this case, with the terminology in s 21(2)(b)(i) and (ii). She did not regard Mr Pullen’s evidence about his shift roster and his evidence relating to the proximity of the owner’s house to the point of detection as being sufficient to rebut a presumption that he was the driver which incorrectly identified as arising from s 21.
- [33]In relation to the second issue – that the vehicle was speeding – she in effect then went on to conclude that the officer’s mistake about the direction of Sugarbag Road at the point where the vehicle containing the camera was located was irrelevant to the evidentiary presumptions contained in the TORUM.
The appellant’s grounds of appeal
- [34]The appellant has filed multiple outlines, some in response to a specific invitation from myself to which I will refer later. Fundamentally his principal complaints are contained in a 19 page outline of argument filed on 31 January 2014. Ground 1 conflates a number of complaints including a complaint about the sentence which the appellant alleges was manifestly excessive. On my reading of the complete record, not only was there no denial of procedural fairness, her Honour endeavoured throughout to be fair to the appellant at the same time firmly keeping him on track, particularly in relation to his tendency to advance arguments rather than answer questions or ask questions. I have referred earlier to the s 83A directions hearing point. There is simply no merit to any of the issues raised in ground 1 in the outline of argument. I will deal with the sentence point at a later point in my reasons.
- [35]The next ground relates to an alleged factual error arising out of the appellant’s own evidence about when he collected the motor vehicle on 2 May 2012 on the basis of his shift records. I will deal with this issue later in my reasons.
- [36]Ground 4 assumes that her Honour’s ruling about the appellant’s notice of challenge was in relation to s 120. As discussed later in these reasons, in fact she acted under s 124 of the TORUM, which was an error. I will deal with this issue later in my reasons.
- [37]At 4.3 of his outline he submits that his failure to lodge a known or unknown user declaration was irrelevant. Again, I will deal with this point later in my reasons.
- [38]The remaining grounds raise issues of bias and unfairness, which in my view are not made out. In relation to the fine, he raises the oft advanced, completely fallacious argument contended for by a number of self-represented litigants concerning the legality of Australian currency.
Discussion
- [39]As the record of the hearing on 4 April in this court reveals, I was assigned the case late and had not had time to read the record as required in an appeal of this nature. The appellant did not appear, but his very substantial outline was before the court, including his response to the prosecution outline filed on 4 March 2014. That afternoon after court, I was able to read the record, and as a consequence, I invited submissions on her Honour’s ruling in relation to the notice of challenge and also whether her Honour erred in invoking s 21 of the SPER Act in her decision. At my direction, my Associate forwarded an email to the parties on the following Monday, which was relevantly in these terms:
“Having now read the record, his Honour invites further submissions from either party on the following issues:
- (a)Her Honour proceeded on the basis that the applicable evidentiary provision was section 124 of the TORUM whereas the relevant certificates Exhibits 1 and 2 were tendered under section 120. Section 120(7) requires a defendant to give notice in the approved form, etc. Did her Honour err in law, and if yes, has this led to a miscarriage of justice?
- (b)There appears to have been two real issues of fact:
- (i)had the prosecution proved beyond a reasonable doubt that the appellant was the driver;
- (ii)was the relevant device in the position nominated by the operator in evidence.
As to (i) her Honour appears to rely on sections 17, 19 and 21 of the SPER Act. In particular, she has referred to section 21 as ‘recasting the onus’. Does section 21, in its terms, apply to this case?”
- [40]Both parties have responded in writing and I have taken into account their responses.
The s 120 point
- [41]It appears at the point in the proceedings on 2 November 2013, where her Honour was considering the Prosecutor’s objection to Exhibit 17, she had in her possession an approved form (presumably blank) although I have not been able to locate that form on the file. At the outset of argument, and despite the wording of Exhibit 17, the Prosecutor correctly identified the correct section under which challenge was to be made, namely s 120(7) of the TORUM, but the discussions with her Honour concluding at 1-7 (6 November 2013) incorrectly proceeded on the basis that it was s 124(4) and (5) of the TORUM that applied. As noted in my email to the parties, the certificates Exhibit 1 and 2 were given pursuant to s 120(2) of the TORUM, and s 120(7) was the evidentiary provision section that applied in relation to the proceeding. Section 120 provides (relevantly) as follows:
“120 Evidentiary provisions
…
- (2)An image produced by the prosecution purporting to be certified by the commissioner stating that the image was properly taken by a photographic detection device at a specified location and time is evidence of the following matters—
- (a)the image was taken at the specified location and time;
- (b)the accuracy of the image;
- (c)the things depicted in the image;
- (d)any requirements prescribed by a regulation about the operation and testing of a photographic detection device were complied with for the specified device at all material times.”
- [42]Subsections 120(7) and (8) provide
“(7) A defendant who intends, at the hearing of a charge against the defendant under this Act, to challenge—
- (a)the accuracy of a photographic detection device; or
- (b)the image from a photographic detection device; or
- (c)a marking or writing made by a photographic detection device on an image; …
must give written notice of the challenge to the prosecution.
- (8)The notice must be in the approved form and must—
- (a)be signed by the defendant; and
- (b)state the grounds on which the defendant intends to rely to challenge a matter mentioned in subsection (7)(a), (b) or (c) …”
- [43]The section of TORUM that her Honour relied upon in ruling that the notice was not a valid notice was s 124. Section 124 is a provision which is designed to facilitate proof in relation to a “laser-based speed detection device or radar speed detection device”. It is confusing, but clearly s 120 is the appropriate evidentiary provision section in this case because her Honour was dealing with a “photographic detection device”. Consistently with her Honour’s ruling (albeit in relation to the wrong section of the TORUM) Mr Pullen was permitted to cross-examine the police officer about the setup of the device as opposed to the manner of its operation. He was also permitted to cross-examine as to the position of the vehicle. I agree with her Honour that as a matter of commonsense the direction which the road runs at a particular point is irrelevant to any issue in dispute in the circumstances where one has the exact latitude and longitude of a particular point on a roadway.
- [44]It follows that although Mr Pullen was permitted to cross-examine as to the specified location, the effect of the evidence he placed before the police officer was not sufficient to overcome the evidentiary presumptions in s 120(2) of the TORUM. He was permitted to fully explore the issues raised in his letter of objection.
- [45]Her Honour’s incorrect reliance on s 124 did not, in my opinion, lead to any miscarriage of justice. Unfortunately, in ruling that the notice of challenge was non‑compliant, her Honour has fallen into another error which is raised indirectly in the appellant’s outline but by reference to the wrong section in the Acts Interpretation Act 1954. One of the main reasons for ruling that Exhibit 17 was non‑compliant was because her Honour found that it was not in “the approved form”. By reference to s 32CA(2) of the Acts Interpretation Act 1954, which is to do with the meaning of “must” in an Act, she ruled by reference to s 124(5) that “Mr Pullen’s failure to comply with the strict requirements of section 124(5) is fatal to his wish to challenge the way in which the relevant device was used … and … the notice, which is Exhibit 17, is insufficient”. As her Honour identified in her reasons at this point, s 32CA(2) is dealing with “the word must … used in relation to a power, which indicates that the power is required to be exercised”. Her Honour was not dealing with the exercise of a power in the circumstances. Sections 48A(1) and (2) of the same Act deal with compliance with form. Section 48(1) provides:
“(1) If a form is prescribed or approved under an Act, strict compliance with the form is not necessary and substantial compliance is sufficient.”
- [46]Given that I have not been provided with a copy of the prescribed form under s 120(8), nor have I been provided with any assistance at all from parties on this point, I have no concluded view on the application of s 48A(2). Exhibit 17 substantially complied with ss 120(7) and (8), in that it was in writing, signed by the appellant and stated the grounds on which he intended to challenge the prosecution’s evidence. It follows that her Honour was in error in so ruling. This issue was discussed with the parties on the resumed hearing on 16 May 2014 and I have taken into account their submissions. Again, I am quite satisfied that her Honour’s error in construing and applying these provisions in the Acts Interpretation Act have not in the circumstances of this case led to a miscarriage of justice.
Has the prosecution proved beyond a reasonable doubt that the appellant was the driver?
- [47]The appellant is correct when he observes in his outline that the prosecution had to prove beyond a reasonable doubt that he was the driver at the relevant time and there was no obligation on him to prove that he was not the driver.
- [48]Her Honour was clearly aware of the effect of s 19 but unfortunately relied more heavily on s 21 when dealing with this issue. As conceded by the respondent, s 21 did not apply. Section 19, however, did apply. Properly construed s 19(2) of the SPER Act means that ss 17 and 19 “apply as if the person named in the declaration as the person in charge of the vehicle at the relevant time (the user) were the owner of the vehicle at that time”. Section 19(4) provides:
“(4) In a proceeding for the offence against the user, the declaration is evidence that the user was in charge of the vehicle at the relevant time.”
- [49]The prosecution was entitled to rely on this provision as evidence that the appellant was in charge of the vehicle at the relevant time. In his latest outline, Mr. Pullen incorrectly asserts that this fact or “evidence” has to be proved beyond reasonable doubt. The balance of its case was essentially circumstantial. To prove that he was the driver, the prosecution had to satisfy her Honour beyond reasonable doubt that that was the only rational inference that could be drawn from the circumstances. This required the prosecution to exclude beyond reasonable doubt any reasonable hypothesis consistent with innocence i.e. that another person was the driver.
- [50]On the basis of his own evidence, it can be properly inferred that he drove that vehicle on the day and collected the vehicle at around about 3.45. Coupled with his lack of recollection and his reliance on his own records and taking into account the effect of s 19(4) and the fact that he did not nominate any other driver in his evidence or serve on the Commissioner of Police a known or unknown user declaration, readily leads me to conclude that the prosecution has satisfied the relevant onus upon it. All the facts and circumstances point to only one rational conclusion, and that is that he was driving the vehicle at the relevant time. In my opinion the prosecution satisfied the onus upon it. The appellant’s complaints about the conviction are not made out, and the appeal against conviction is dismissed.
- [51]In relation to the sentence, the Prosecutor submitted that the costs of the summons was $84.40 and should be paid by the appellant. He noted that the usual ticket amount for this offence is $133, but given that the prosecution has been put to proof he submitted that it was open to the court to impose a more significant fine. The defendant’s traffic history was tendered and is not disputed by the appellant. It indicated that he had a number of convictions for exceeding the speed limit and that his license had been suspended under SPER on a number of occasions. The appellant submitted that it would be unfair to increase the penalty beyond the ticketing amount.
- [52]Her Honour gave very brief reasons. Essentially her Honour’s reasons can be read as indicating that Mr Pullen had shown no remorse. Although this complaint is not made, I do not detect that she was punishing him for putting the prosecution to proof. She fined him $500 and ordered him to pay court costs of $84.40 and allowed two months to pay, and the sums of money were referred to SPER.
- [53]Essentially the appellant’s complaint is that he did not receive notice of her Honour’s intention to increase the fine and that he has been denied procedural fairness. He was present when the Prosecutor made submissions, he was allowed by her Honour to make any submissions in response; he was not denied procedural fairness. No schedules of appropriate fines have been placed before me, but having regard to the appellant’s quite significant traffic history, I can see no identifiable error that would lead me to hold that the sentence was excessive in all the circumstances.
- [54]The appeal against conviction and sentence is dismissed, and I will hear the parties in relation to costs.