DISTRICT COURT OF QUEENSLAND

Introduction

2. [2]
   The appellant, Brett Vinson (a Queensland police officer) appeals from the decision of the learned magistrate at Beenleigh on 19 February 2014, dismissing one charge of speeding against the respondent William Tiger Hongara. 

Non appearance of the respondent

3. [3]
   The respondent appeared self represented on 28 July 2014 in the Beenleigh District Court at a review mention of the appeal. In the respondent’s presence, the appeal was listed for hearing on 10 September 2014. On that date, the respondent’s name was called, but there was no appearance. Appeals to the District Court proceed under division 1, part 9 of the Justices Act 1886.  In my view, there appears to be no impediment to this appeal proceeding in the absence of the respondent.

Background

4. [4]
   The respondent was charged by Complaint-sworn, and Summons dated 24 September 2013 as follows:-

“That on the seventh day of May 2013 at Loganholme in the Magistrates Court District of Beenleigh in the state of Queensland one William Tiger Hongara being the driver of a vehicle namely a car drove at a speed over the speed limit namely 100 kilometres per hour applying to the driver for the length of road namely Pacific Motor Way Loganholme where the said driver was driving and it is averred that the said car is a vehicle as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that the said Pacific Motor Way is a road as defined in Schedule 4 of the Transport Operations (Road Use Management) Act 1995.”

Further particulars

5. [5]
   The following details were contained in the Complaint-sworn and Summons, namely:

• Time about 1148 hours;
• Registration number QLD 809GPA;
• Speed 110 kilometres per hour;
• Photographic detection device infringement notice number 2005340271 issued 21-05-2013 previously forwarded;
• Notice under s 116(1) accompanies this summons.

6. [6]
   The relevant “Notice Accompanying Summons” under s 116(1) of the Transport Operations (Road Use Management) Act 1995 sets out the provisions of ss 114, 118 and 120 of Transport Operations (Road Use Management) Act 1995 applicable as at the date of the summons.

Grounds of appeal

7. [7]
   The appellant appeals on the following ground:-

1. 1.
   The learned magistrate erred at law by dismissing the charge as it was against the weight of the evidence.

The law

8. [8]
   In Tierney v Commissioner of Police [2011] QCA 327, Margaret Wilson AJA stated that:

“An appeal from a Magistrates Court to the District Court pursuant to s. 222 of the Justices Act 1886 (Qld) is a rehearing on the evidence given at trial and any new evidence adduced by leave.  In other words, it involves a review of the record of proceedings below, subject to the District Court’s power to admit new evidence.  To succeed, an appellant needs to show some legal, factual or discretionary error.”^[1]

Proceedings at trial

9. [9]
   The matter proceeded before the learned magistrate at Beenleigh on 19 February 2014. The trial proceedings have been comprehensively summarised in the appellant’s outline and I gratefully adopt that summary as set out below:-

“5.1 The respondent was acquitted of the offence by the [learned magistrate] after a brief hearing of the evidence of both the prosecution and the respondent, who represented himself.

1. 5.2
   No witnesses were called in the prosecution case. The complaint and summons indicated that the offence was detected by a photographic detection device and thus the offence was a camera detected offence as defined by s. 113 of the Transport Operations (Road Use Management) Act 1995 (‘TORUMA’). Accordingly, in lieu of oral testimony of witnesses, the prosecution sought to tender certain documents in the form of certificates together with copies of certain instruments of delegations. The following documents were tendered:

1. (a)
   Exhibit 1: Colour photographs were tendered in accordance with s. 120 of TORUMA for the speeding offence that depicted the appellant’s motor vehicle and specified the date, time and registered speed of the motor vehicle;

2. (b)
   Exhibit 2: Certificates were tendered in accordance with s. 120(2) of TORUMA under the hand of Senior Sergeant Vinson certifying that the photographs were taken properly by the photographic detection device;

3. (c)
   Exhibit 3: Certificates were tendered in accordance with s. 120(2A) of TORUMA under the hand of Senior Sergeant Vinson alleging the offences;

4. (d)
   Exhibit 4: A certificate was tendered in accordance with s. 60(4) of TORUMA regarding the accurate and correct operation of the traffic camera and relevant coding manual. Exhibit 5: Certificate of delegation authorising the certificate in exhibit 4;

4. (e)
   Exhibit 6: Certificates were tendered in accordance with part 3, division 1 of the State Penalties Enforcement Act 1999 signed by the administrating authority state that an offence stated in an infringement notice is evidence of the matter. Exhibit 7 was a certificate of delegation with respect to exhibit 6;

6. (f)
   Exhibit 8: A certificate of registration was tendered in accordance with s. 124(1)(n)(ii) of TORUMA stating that the respondent was the registered owner of the vehicle.  Exhibit 9 was the attaching delegation for that certificate;

7. (g)
   Exhibit 10: Certificate stating that the infringement notice was served on the respondent;

8. (h)
   Exhibit 11: Certificate was tendered in accordance with s. 157(2)(j) of the State Penalties Enforcement Act 1999 stating that the respondent had not given the administrating authority a declaration for the offences stated in the infringement notice, as per the legislative time frames. 

1. 5.3
   The respondent presented his case during which he gave evidence. He did not challenge any of the evidence presented by the prosecution. The respondent testified that he received the notice, sent back the election for court hearing and attended the first court appearance. He stated that at that hearing he was told to send a submission to the Traffic Camera Office, which was rejected. A copy of that submission was not tendered at the hearing. It was apparent that it was sent outside the 28 day time frame.

1. 5.4
   The respondent submitted that he was not the driver [of] the car at the time of the offence. The car, as far as he was concerned, was in the possession of his ex-partner. He had attempted to have the registration transferred into her name, but was unaware she had not completed the paperwork. The respondent gave evidence that at the time of receiving the ticket he did not know who the driver was, but was later told by his son that a male friend of his ex partner had been driving. His son did not give evidence at the hearing, and the respondent stated he did not know the identity of this person.

1. 5.5
   During cross-examination the respondent accepted that he did not nominate another person, and gave evidence it was because he did not know if [his ex partner] was the driver or not.

1. 5.6
   The learned magistrate asked the respondent if there was a reason he did not put down that is ex partner was the person in charge [of the car]. The respondent answered that he ‘can’t think of a reason why not’.

1. 5.7
   The police prosecutor submitted that, exhibit 11 was evidence that he respondent did not submit advice, within the 28 day timeframe, that he was not the driver of the vehicle and the notification he did provide was a significant time after. The police prosecutor submitted it was strict liability under the legislation.

1. 5.8
   The learned magistrate accepted that all of the elements of the offence had been satisfied.” (Transcript citations deleted).

Magistrate’s decision

10. [10]
    The learned magistrate, in delivering the decision stated (relevantly):-

“Technically, the prosecution has proven their case beyond a reasonable doubt, but I do take into account what you [the respondent] said to me today.  It’s not as if you’ve simply just ignored the matter and then when it’s come to court you’ve come along here today and said, you know ‘this is the situation.  I wasn’t the driver.  It’s my wife’.  I’ve heard evidence from you.  There is evidence that when you separated you did take the steps – and there’s nothing to rebut this evidence of course.  You did take steps that assigned that car to her.  Then when you got the ticked, whilst you didn’t’ nominate her as the person in charge, you at least sent the ticket off to say that you wanted a hearing. 

I accept that.  I also accept you’ve given evidence that at some stage you went to the Department of Transport and sought some advice.  And then when you came to court on the first date, the prosecutor advised you to send a submission to the Traffic Camera Office.  Your evidence today is that you did do that and you provided a Stat Dec.  There is no evidence whatsoever to rebut that, so I accept that what you say is correct.  So, you know, the law is – despite what some people say, I don’t – the law is not an ass, so I am going to acquit you of the charge today.  So I find you not guilty.  Alright?  And you’re discharged.”^[2]

11. [11]
    The police prosecutor at the trial before the learned magistrate then requested reasons for the finding which were delivered in the following terms:-

“Well the reasons are that he has come before the court and, given the steps that he has taken – and whilst it is a, as you say, strict liability, I’m satisfied that the reasons he’s given have convinced me that – he’s certainly given strong evidence – that he was not the driver of the vehicle.  And whilst he’s – it may be out of time, having regards to the steps that he’s taken to advise the Traffic Camera Office, first of all, that he wanted a hearing; secondly the fact that he – when he came to court, he was advised to make a submission and he’s made that submission, accompanied with a Statutory Declaration; also combined with the fact that he did take steps to transfer that registration into his wife’s name when they separated in December 2002 (sic) which was some time – five months – I think five months before this offence occurred; also the fact that he has given evidence today to say that he did at some stage contact the Department of Transport to seek advice. 

And – what was the other point – the fact that when he did come to court and he was advised by the prosecutor to make a submission to the Traffic Camera Office he did make that submission and he enclosed a Statutory Declaration.  So I think when you look at all those steps that he’s taken – also combined with the fact that he couldn’t contact his wife because upon separation there was evidently a court order prohibiting him from having contact with this wife.  So I think for all those reasons – I think those reasons outweigh that strict liability, in my opinion.  I don’t know whether that helps you.  Probably not.”^[3]

12. [12]
    The police prosecutor then stated:-

“With all respect, your Honour, I would submit those mitigating circumstances for your Honour to decide on a particular penalty as opposed to a finding of not guilty.” 

13. [13]
    The learned magistrate then said:-

“Well, that may be the case, but having looked at it from – and at something that I did and, I mean you can put this in your report… something that I considered was convicting him on the strict liability issue and discharging him absolutely, but if I do that he’s still stuck with a $100 penalty from the court; he’s still stuck with a monetary penalty which would be, I assume, something similar to this.  So it just seems… it just seems totally unfair to do that. … So that’s why I’ve – rightly or wrongly, I’ve chosen to… acquit him. … So that might – and then the Traffic Camera Office can do whatever they want to do but that’s my decision.”^[4]

Appellant’s submissions

14. [14]
    The appellant submits that the learned magistrate erred in two respects in acquitting the respondent, as follows:-

1. 1.
   TORUMA s. 114(1) imposes strict liability, unless the requirements of the defence outlined further in that section are met. The learned magistrate found the prosecution had proved its case, then proceeded to dismiss the charges.

1. 2.
   The learned magistrate’s decision was based on extraneous irrelevant matters, specifically that the respondent would, if convicted, be subject to the offender levy.

Legislative provisions

15. [15]
    TORUMA s. 114 is headed “Offences detected by photographic detection device”. TORUMA s. 114(1) provides:-

“If a prescribed offence happens and the offence is detected by a photographic detection device, a person is taken to have committed the offence if the person was the person in charge of the vehicle that was involved in the offence at the time the offence happened even though the actual offender may have been someone else.”

It is submitted (and I accept) that the effect of TORUMA s. 114(1) is a strict liability provision deeming a “person in charge” of the relevant vehicle involved in the offence to be the person who has “committed the offence” even though “the actual offender may have been someone else”. 

16. [16]
    TORUMA s. 113 (definition section) relevantly provides:-

“Person in charge of a vehicle, in relation to an alleged offence, means:

1. (a)
   if there was a responsible operator for the vehicle at the time the offence allegedly happened—

1. (i)
   the responsible operator; or

2. (ii)
   if the responsible operator gives a notice under section 114(3)(b)—the person named, in any notice under the section, as the person in charge of the vehicle at the time; or

2. (b)
   if there was no responsible operator for the vehicle, and the vehicle was registered under a transport Act or a corresponding transport law, at the time the offence allegedly happened—

1. (i)
   the registered operator of the vehicle at the time; or

2. (ii)
   if the registered operator gives a notice under section 114(3)(b)—the person named, in any notice under the section, as the person in charge of the vehicle at the time; or

3. (c)
   if there was no responsible operator for the vehicle, and the vehicle was not registered under a transport Act or a corresponding transport law, at the time the offence allegedly happened—

1. (i)
   the person who, immediately before the registration expired, was the registered operator; or

2. (ii)
   if the person who was the registered operator gives a notice under section 114(3)(b)—the person named, in any notice under the section, as the person in charge of the vehicle at the time; or

3. (iii)
   if the person who was the registered operator gives a notice under section 114(3A)(b)—the person named, in any notice under the section, as the person who stole or took the vehicle; or

4. (iv)
   if the person who was the registered operator gives a notice under section 114(3A)(c)—the person named, in any notice under the section, as the person to whom the vehicle was sold or disposed of.”

TORUMA s.113 defines “responsible operator” to mean “a person nominated as responsible operator under section 170 or a person corresponding to a responsible operator under a corresponding transport law.”

17. [17]
    TORUMA Schedule 4 defines a “registered operator” of a vehicle to mean a person–

1. (a)
   in whose name the vehicle is registered under a transport Act or a corresponding law; or

2. (b)
   who has given notice to the chief executive for the purpose of having the vehicle registered in the person's name under a transport Act.

18. [18]
    TORUMA s.114(3) provides:

“It is a defence to a camera-detected offence, other than an unregistered or uninsured offence, for a person to prove that—

1. (a)
   the person was not the driver of the vehicle at the time the offence happened; and

2. (b)
   the person—

1. (i)
   has notified the commissioner or chief executive of the name and address of the person in charge of the vehicle at the time the offence happened; or

2. (ii)
   has notified the commissioner or chief executive that the person did not know and could not, with reasonable diligence, have ascertained the name and address of the person in charge of the vehicle at the time the offence happened.”

19. [19]
    TORUMA s.114(5) provides:

“The required time is 28 days after whichever of the following is first given to the person—

1. (a)
   a written notice from the commissioner or chief executive alleging a camera-detected offence;

2. (b)
   an infringement notice under the State Penalties Enforcement Act 1999.”

20. [20]
    TORUMA s.114(6) provides:

“For subsection (3)(b)(ii) a person must prove that—

1. (a)
   at the time the offence happened, the person—

1. (i)
   exercised reasonable control over the vehicle's use; and

2. (ii)
   had in place a reasonable way of finding out the name and address of the person in charge of the vehicle at any given time having regard to—

1. (A)
   the number of drivers; and

2. (B)
   the amount and frequency of use; and

3. (C)
   whether the vehicle was driven for business or private use; and

2. (b)
   after the offence happened, the person made proper search and enquiry to ascertain the name and address of the person in charge of the vehicle at the time the offence happened.”

Discussion

21. [21]
    The alleged offence occurred on 7 May 2013. The notice alleging the camera-detected offence (infringement notice) was issued on 21 May 2013. The respondent elected to proceed for a court hearing on 27 July 2013 and the matter was first mentioned in the Beenleigh Magistrates Court on 18 October 2013, pursuant to a Complaint – sworn and Summons dated 24 September 2013 and filed on 27 September 2013 in the Beenleigh Magistrates Court.

22. [22]
    Pursuant to TORUMA s.114(5), the defence in TORUMA s.114(3) is not available unless notice was given pursuant to TORUMA s.114(3)(b)(i) or (ii) within 28 days of the first of–

1. (a)
   written notice from the commissioner or chief executive to the person alleging a camera-detected offence; or

2. (b)
   an infringement notice under the State Penalties Enforcement Act 1999.

23. [23]
    As at 7 May 2013, the vehicle the subject of the camera-detected offence, a blue-grey 1998 Toyota Tarago wagon, registration 809GPA, was recorded as registered to the respondent at an address in Beenleigh.^[5]

24. [24]
    A certificate (Service of Infringement Notice – exceeding the speed limit) by Senior Sergeant Vinson certifies that “infringement notice no 2005340271 was sent by mail to William Tiger Hongara for the offence of exceeding the speed limit”^[6], and a certificate from Senior Sergeant Vinson (No Declaration Given – exceeding the speed limit) certifies that the respondent, having been served with an infringement notice no. 2005340271 for the offence of exceeding the speed limit “has not given the commissioner notification by way of valid statutory declaration, within 28 days from the infringement notice issue date in compliance with section 114 of the Transport Operations (Road Use Management) Act 1995.”^[7]

25. [25]
    The respondent accepted in his evidence^[8] that he did not provide (within 28 days or at all) a notice to the commissioner or chief executive that he was not the driver of the vehicle at the time the offence happened and providing a notification of the name and address of the person in charge of the vehicle at the time the offence happened or that he did not know and could not with reasonable diligence have ascertained the name and address of the person in charge of the vehicle at the time the offence happened.

26. [26]
    As the learned magistrate accepted in the reasons for decision, the defence under TORUMA s.114(3) was not available to the respondent. Accordingly, I conclude that the learned magistrate had no alternative but to find the respondent guilty of the charge of speeding, despite the respondent’s sworn evidence that he was not the driver of the vehicle at the relevant time (7 May 2013) and that the vehicle was at that time in the possession of his former partner, but remained registered to him.

27. [27]
    The purported reliance by the learned magistrate on the effect of the mandatory offender levy (apparently a reference to Penalties and Sentences Act s.179C) is impermissible, given the provisions of the Penalties and Sentences Act s.9(9)(a), which relevantly provides:

“In sentencing an offender, a court must not have regard to the following—

1. (a)
   the offender levy imposed under section 179C;”

28. [28]
    It is clear that the provisions of TORUMA s.114(1) create an offence of strict liability, which may have unjust consequences in a particular circumstance. The strict liability provisions of TORUMA s.114(1) are ameliorated by the provisions of TORUMA s.114(3), but if that defence is not made out, then, as unfair as the outcome appears, it is an inescapable and unavoidable conclusion that a respondent in a case such as this, does not have a defence to the charge of speeding. Accordingly, the learned magistrate could not conclude, in law, that the respondent was not guilty and acquit him of the charge of speeding. It also appears that the learned magistrate, in reaching that conclusion, has considered the potential consequences of the mandatory provisions of Penalties and Sentences Act s.179C, which would have been impermissible in sentencing the defendant,^[9] and would undoubtedly, if relied on as a basis to acquit the defendant, also constitute an error of law.

29. [29]
    It follows, inevitably, that the learned magistrate erred in law, and the decision to acquit the defendant should be set aside.

Conclusion

1. 1.
   Appeal allowed.

1. 2.
   Acquittal of the respondent William Tiger Hongara, on one charge of speeding, on 7 May 2013, is set aside.

1. 3.
   Remit proceedings to the Beenleigh Magistrates Court to proceed according to law by way of a hearing before a magistrate other than the learned magistrate who originally conducted the trial in this matter.