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Lambert v Queensland Police Service[2017] QDC 147

Lambert v Queensland Police Service[2017] QDC 147

DISTRICT COURT OF QUEENSLAND

CITATION:

Lambert v Queensland Police Service [2017] QDC 147

PARTIES:

DONALD CYRIL LAMBERT

(appellant)

v

QUEENSLAND POLICE SERVICE  

(respondent)

FILE NO/S:

APPEAL NO:  4/2017

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Mount Isa

DELIVERED ON:

31 May 2017

DELIVERED AT:

Innisfail

HEARING DATE:

7 May 2017

JUDGE:

Morzone QC DCJ

ORDER:

  1. Appeal allowed.
  2. The conviction and orders of the Magistrates Court made on 5 September 2016 are set aside.
  3. The proceeding commenced by of the complaint and summons is remitted to the Magistrates Court Mount Isa Registry for rehearing and determination according to law before a different magistrate in due course.

CATCHWORDS:

CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 (Qld) – conviction – disobeying speed limit – hearing proceeded ex parte in absence of defendant pursuant to s 114A of the Act – fresh evidence allowed on appeal showing failure to disclose material matters affecting mode of hearing of appeal and meritorious defence – where application warranted to re-open proceedings for want of effective service of complaint and summons (returned unclaimed after hearing) – appellant’s application to reopen case refused by registry as being out of time – where appellant registered owner but proved not the driver in offending conduct – whether defence available by giving statutory declarations within requisite time – whether viable defence.

Legislation

Acts Interpretation Act 1954 (Qld), s 39

Justices Act 1886 (Qld), ss 52, 142, 142A, 147, 222, 223 & 227

State Penalties Enforcement Act 1999 (Qld), 33, 38, 56, 57, 60

Transport Operations (Road Use Management) Act 1995 (Qld), ss 62, 113, 113A 114, 120 and 124

Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), ss 20, 353

Cases

Attorney-General (Qld) v Morris [2015] QCA 112

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Herron v McGregor (1986) 6 NSWLR 246

Morris v R (1987) 163 CLR 454

Vinson v Hongara [2014] QDC 249

White v Commissioner of Police [2014] QCA 121

SOLICITORS:

The appellant was unrepresented

A Payne, legal officer of the Office of Director of Public Prosecutions for the respondent

  1. [1]
    On 5 September 2016 the appellant was convicted, after failing to appear in the Magistrates Court held in Mount Isa, to answer a charge by complaint and summons of disobeying the speed limit, by driving a over a speed limit of 60 km/hr. The proceeding was determined in his absence and he was convicted and fined $531 and ordered to pay costs of $90.20.
  1. [2]
    The appellant now appeals the decision and the refusal of his application to re-open the case.
  1. [3]
    I have considered outlines of argument and further submissions of both parties on the hearing of the appeal, as well as additional material and able submissions sought from the respondent.

Background

  1. [4]
    The appellant was born on 14 November 1961. He was 52 at the time of the offence and is 55 now. The appellant has a traffic record.
  1. [5]
    The alleged offence occurred on 20 October 2014 at 3:43 pm when a photographic detection device identified a motorbike registered to the appellant in Queensland and bearing registration number “XB741” to be driving on the Barkly Highway at Mount Isa at a speed of 98km/h, which was 38km/h over the 60 km/h speed limit.
  1. [6]
    Exceeding the speed limit is an offence against section 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) (‘the Regulation’).  It is also considered a camera-detected offence under section 113 of the Transport Operations (Road Use Management) Act 1995 (Qld) (“TORUM”).
  1. [7]
    A complaint and summons was then issued on 21 July 2016 and filed on 26 July 2016. The summons was directed to the appellant of “U1 134 Ridge Street NORTHGATE 4013” and commanded the appellant’s appearance at the Mount Isa Magistrates Court on 5 September 2016 at 8:30 am. It was purportedly served by post. The appellant did not answer the summons and failed to appear in court on 5 September 2016.
  1. [8]
    The magistrate proceeded to hear the matter ex parte in the appellant’s absence pursuant to s 142A(4) of the Justices Act 1886 (“the Act”).  The appellant was convicted of the offence, fined $531.00 and ordered to pay the costs associated with preparation and filing of the complaint and summons in the sum of $90.20.  A conviction was recorded.
  1. [9]
    The appellant filed an application for rehearing dated 16 October 2016 to the Mount Isa Magistrates Court. The Magistrates Court at Mount Isa received the application for rehearing on 30 November 2016. It was apparently dismissed without any hearing as being out of time. That is, the appellant did not apply for a rehearing within 2 months of the conviction pursuant to s 142A(12) of the Act.

Mode of Appeal

  1. [10]
    Pursuant to s 223 of the Justices Act 1886 (Qld), an appeal under s 222 is by way of rehearing on the original evidence given in the proceedings before the trial magistrate, and new evidence adduced on appeal in special circumstances with leave.  The appeal is not a new trial to consider, as if presented for the first time, the arguments advanced.  It is a review of the record of the proceedings below, rather than a completely fresh hearing.[1]
  1. [11]
    Fundamentally, the appellant must demonstrate some legal, factual or discretionary error.[2]  This court is required to make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.[3]
  1. [12]
    Since there was a dearth of material before the magistrate, the respondent disclosed the several documents held by the respondent at the time of the hearing. “Special grounds” are required before fresh, additional or substituted evidence (new evidence) may be admitted on appeal: s 223(2) Justices Act 1886.  The discretion will generally be invoked where the new evidence:
  1. Could not have been obtained with reasonable diligence for use at the hearing;
  1. Would probably have an important influence on the result of the case, even though not be decisive; and
  1. Must be apparently credible though not incontrovertible.
  1. [13]
    The disclosed documents (which included the documents supporting the appellant’s application to reopen the case) can be described as follows:
  1. Infringement Notice 2019902115 claiming $531.00 by 3 December 2014 regarding a speeding Yamaha TT250 motor cycle with Queensland registration No. XB741 on Barkly Hwy, Mount Isa on 20/10/2014 at 15:43hrs.  The infringement notice was addressed to the appellant at “77 Sophie Crescent Bracken Ridge Qld 4870”.
  1. Correspondence from the appellant to the Traffic Office (scanned as) received on 21 May 2015 containing:
  1. (a)
    A “Reprint” of the Infringement Notice 2019902115 (of unknown origin). 
  1. (b)
    Two forms of Statutory Declaration of the appellant both dated 18 May 2015, received by the Traffic Office on 21 May 2015. The appellant identified his residential address as “77 Sophie Cres, Bracken Ridge” and postal address of “PO Box 119 Emerton NSW 2270”. 
  1. (c)
    Only one statutory declaration was properly witnessed, wherein the appellant declares the name and address of the rider of the motor cycle as at 1543 on 20 October 2014 as being “Shane Michael Lambert 130 Pamela Street Mt Isa, lives in Mount Isa Works in the mines”. 
  1. (d)
    The second, non-compliant statutory declaration has similar detail but in a different form.
  1. Letter (returned unclaimed) dated 25 May 2015 from the Queensland Police Traffic Camera Office to the appellant at “PO Box 119 Emerton NSW 2770”, rejecting the appellant’s statutory declaration as being out of time and inviting a declaration from the driver in the form of a sample provided. 
  1. Further letter dated 3 August 2015 from the Traffic Office to the appellant at “PO Box E119 Emerton NSW 2770”, enclosing the unclaimed mail.
  1. Correspondence from the appellant to the Traffic Office received on 3 March 2015 containing:
  1. (a)
    Infringement Notice number 2019902115 with handwriting striking out the address of “77 Sophie Crescent Bracken Ridge Qld 4017” and inserting in lieu “19 Moon St, Ballina NSW 2478”.
  1. (b)
    An unwitnessed form of Statutory Declaration of the appellant striking out the address of “77 Sophie Crescent Bracken Ridge Qld 4017” and inserting in lieu “19 Moon St, Ballina NSW 2478”.
  1. (c)
    One compliant statutory declaration is properly witnessed and dated 29 November 2015, which again has the appellant’s address of “77 Sophie Crescent Bracken Ridge Qld 4017” struck out and “19 Moon St, Ballina NSW 2478”.  The appellant declares the name and address of the rider of the motor cycle as at 1543 on 20 October 2014 as being “Shane Michael Lambert 130 Pamela Street Mt Isa, lives in Mount Isa Works in the mines”.
  1. (d)
    A handwritten note supplemented the statutory declaration as follows:

“I was in financial need & my brother Shane Michael Lambert of 130 Pamela St Mt Isa works in the mines at the time came down to Sydney paid me $1000.000 for financial help to pay my rent on my house of 7 years did take motor bike XB-741 for collateral till I paid back in full amount of all money owing.  Registration of his red holden ute is rego 100-VNN Qld rego.  Shane Michael Lambert.  Born 27th 2nd 1966 or 1967 NSW driver’s licence at the time was BU1952.

If you look at picture on the offence my Brother is tall & thin & I’, short & fat.

I’ve cancelled the registration of XB-741.

This is a photo of myself taken today 22/11/2015.”

  1. (e)
    Star Partners St Marys Trust Account receipt showing the appellant’s rented accommodation address; a Platinum Traffic Services Pty Ltd Pay Slip, showing he was working in New South Wales at the time of the offending conduct; and receipt of Two Shores Holiday Village showing his weekender van stay at this New South Wales accommodation between 26 April 2013 to 8 January 2016.
  1. (f)
    The appellant’s reliance on these documents as alibi evidence were described in another handwritten document where the appellant says he was always in New South Wales and not in Mount Isa at the time of the offending conduct, and he again described himself by reference to a photograph as distinctly different to the rider shown in the infringement notice.
  1. (g)
    Application to Cancel Enforcement Order by the applicant dated 19 November 2015.  On the ground that: “Brother took my motor bike for payment. I was broke. In my name rego. He lives in Mt Isa Works in mines. I’m in Sydney. I have document to state my time and dates and work in Sydney and rent receipts…” Grounds for application being outside 6mths from the date of the Enforcement Order: “Have a mailbox don’t check that often. Always on road travelling.”  This is consistent with the other contemporary documents including the appellant’s residential address as “19 Moon St, Ballina NSW 2478” and his mobile telephone contact.  He also acknowledged receipt of the first infringement notice No 2019902115 on 5 November 2014.
  1. Letter dated 7 December 2015 (returned unclaimed) from the Traffic Office to the appellant at “19 Moon St, Ballina NSW 2478”, acknowledging receipt of the statutory declaration.  But the letter asserts that the original infringement notice was sent to the recorded registered address of the motorcycle of “77 Sophie Crescent Bracken Ridge Qld 4017”.  The letter further asserts that since the 28 day period allowed notify of a driver had expired “it is no longer possible for the administering authority to accept the statutory declaration”, however, the Application to Cancel Enforcement Order was forwarded to the State Penalties Enforcement Registry.
  1. A new Infringement Notice number 2035144331 dated 13 January 2016 issued under cover of a covering letter addressed to the appellant at “PO Box E119 Emerton NSW 2770”, unlike the Infringement Notice which was directed to “19 Moon St, Ballina NSW 2478”. The letter explained that SPER had approved the application and cancelled the Enforcement Order, and original infringement notice had been withdrawn.  The Traffic Office also advised that the new “Infringement notice No. 2035144331 is not in effect and you have 28 days to finalise”.  Save for the new number and date, the second Infringement Notice was in identical terms to the first Infringement Notice No 2019902115.
  1. An undated latter from the Traffic Office to the appellant at “PO Box E119 Emerton NSW 2770”, advising him that as payment had not been received a summon action would be instigated in due course.
  1. Documents (returned unclaimed) from the Traffic Office to the appellant including:
  1. (a)
    Complaint and Summons dated 21 July 2016 pleading the complaint with further particulars, with the Summons directed to the appellant at “U1 134 Ridge St, Northgate 4013”.
  1. (b)
    A Notice Accompanying Summons.
  1. (c)
    Notice of Intention to Allege Previous Summary Convictions dated 21 July 2016, enclosing the appellant’s traffic record.
  1. (d)
    Pro-forma letter providing an indication of plea by correspondence.
  1. (e)
    Envelope evidencing the return of this mail “unclaimed” as at 26 August 2016 and stamped received by the Traffic Office ion 21 September 2016.
  1. Oath of Service dated 21 July 2016 swearing that the Complaint and Summons deposing to service by post on 21 July 1016 to the defendant at “U1 134 Ridge St, Northgate 4013 being the place of residence last known to the complainant, at least 21 days before the date on which the defendant is, by the summons, required to appear … by reason of the records held by the Director General Department of Transport and Main Roads”. 
  1. A search of the record of Queensland Transport, Transport Registration and Integrated Licensing System, showing the appellant’s driver’s license details including his address at “U1 134 Ridge St, Northgate 4013” and a “Start date of 10/10/2014” and “End Date 18/07/2016”. 
  1. [14]
    Both parties accepted the documents were available for the hearing, but would probably have an important influence on the result of the case, even though not be decisive; and are apparently credible though some not incontrovertible.
  1. [15]
    In these circumstances I allowed the documents to be relied upon by both parties as fresh evidence:

Grounds of Appeal

  1. [16]
    The appellant appeals against the decision on the grounds in the notice of appeal that:

“The motor bike was stolen from my Sydney address (sic) found out it was my brother Shane Michael Lambert of Mt Isa.  Works in the Mines.  Have made a stolen report event no E64470067.  Bike has been re-registered.”

  1. [17]
    Clearly enough this ground goes to the merits of the case, or at least could have supported his belated application to re-open the case.
  1. [18]
    However, there are some critical preliminary matters that warrant consideration before any consideration of the merits of the case, in particular: whether the matter ought to have been determined ex parte on 9 September 2016, and whether the proceeding was out of time in any event. 

Competency of proceedings

  1. [19]
    The first preliminary point is whether the proceeding was time or statute barred in any event.
  1. [20]
    Section 52 of the Act provides as follows:

“Limitation of proceedings

  1. (1)
    In any case of a simple offence or breach of duty, unless some other time is limited for making complaint by the law relating to the particular case, complaint must be made within 1 year from the time when the matter of complaint arose.”
  1. [21]
    The respondent relies upon the State Penalties Enforcement Act 1999 (Qld) (“SPEA”) to argue that s 60 of that Act extends the time limit to commence proceedings regulated by s 62 of the TORUM.
  1. [22]
    Section 62 of the TORUM places a statutory time limit which proceedings can be commenced under a Transport Act, as follows:

“(1) A proceeding for an offence against a Transport Act is a summary proceeding under the Justices Act 1886.

….

  1. (4)
    If the proceeding is for an offence other than an offence that may be started as mentioned in subsection (2) or (3), the proceeding must start—
  1. (a)
    within 1 year after the offence was committed; or
  1. (b)
    within 6 months after the offence comes to the complainant’s knowledge, but within 2 years after the offence was committed.”
  1. [23]
    However, the circumstances of this case are somewhat unusual in that the appellant failed to pay the fine required by the first Infringement Notice No. 2019902115 issued on 5 November 2014, and applied for cancellation of an enforcement order. The application was successful, and the State Penalties Enforcement Registry enforcement order was cancelled on 8 January 2016. The first Infringement Notice was then “withdrawn” on 12 January 2016, and a second Infringement Notice No 2035144331 was issued on the following day, on 13 January 2016.
  1. [24]
    Where a person fails to pay a fine within the 28 days, a default certificate issues under s 33 of the SPEA.  Once the default certificate is registered under s 35, the registrar must issue an enforcement order under s 38 of the SPEA.  Where, as here, the registrar receives an application for cancellation of an enforcement he is empowered to cancel the order.  This power can be exercised pursuant to s 56(2) if the application is made within 14 days of the person becoming aware of the existence of the order and within 6 months after the issue of the relevant order.  For later applications, s 56(3) provides a discretion as follows:

“(3)  Despite subsection (2), an application under subsection (1) may be made after the periods mentioned in subsection (2) have ended if the registrar is satisfied the applicant has reasonable grounds for the delay.”

  1. [25]
    In this case, pursuant to s 57(4) of the SPEA, since the registrar cancelled the enforcement order he referred the matter back to the administering authority, the Traffic Office.  In turn, s 57(5) empowered the Traffic Office to issue a fresh infringement notice as it did.
  1. [26]
    Pursuant to s 60(5) of SPEA, s 60(4)(c) expressly provides for another time limit for making a complaint for repurposes of s 52 of the Act when an enforcement order is cancelled, as follows:

“(c) the period of limitation within which a proceeding for the offence to which the order relates may be started for the matter starts on the day the order is cancelled.”

  1. [27]
    The limitation period represents the legislature's judgment as to what the public interest requires after taking into account the relevant factors including the prejudice which delay may create.[4]  The Explanatory Notes for the amending Bill which inserted s 60(40(c) explains that: Clause 191 amends section 60 (Provisions relating to cancellation of enforcement order) to clarify that the time limit to commence proceedings is not limited by section 52 of the Justice Act 1886.
  1. [28]
    It must follow that the complaint and summons, having issued before 12 months after the second enforcement notice and within 2 years from the offending conduct, is not time or statute barred. It was therefore justiciable by the magistrate.

Mode of hearing in the absence of a defendant

  1. [29]
    At the hearing date before the magistrate, the appellant did not appear. The magistrate was satisfied, on oath, that the defendant had been properly served by registered post to “U1 134 Ridge Street NORTHGATE 4013. 
  1. [30]
    Section 142 provides for proceedings in the absence of a defendant as follows:

“(1)  If at the time and place so appointed the defendant does not appear when called and the justices are satisfied, on oath or by deposition as provided in section 56, that the summons was properly served on the defendant a reasonable time before the time appointed for the defendant’s appearance, the justices may—

  1. (a)
    proceed ex parte to hear and determine the case as fully and effectually to all intents and purposes as if the defendant had personally appeared before them in obedience to the said summons; or
  1. (b)
    if satisfied, from information given on oath, that the matter of the complaint is substantiated, issue their warrant to apprehend the defendant and to bring the defendant before justices to answer the complaint and to be further dealt with according to law; or
  1. (c)
    upon the written plea of guilty of the defendant and upon being satisfied that the requirements of section 146A have been complied with in all respects, proceed as prescribed by that section; or
  1. (d)
    because of the absence of any witness or any other reasonable cause, adjourn the hearing to a time and place to be then stated or to be determined as hereinbefore in this Act provided before a court constituted in accordance with this Act by such justices as may then be present.”
  1. [31]
    In addition, for a simple offence, such as this, the Act permits a more truncated procedure to hear the matter ex parte in the absence of the defendant pursuant to s 142A(4) of the Act.  Section 142A(4) of the Act is in these terms:

“(4)  Where—

  1. (a)
    a complaint of a simple offence or breach of duty is made by a public officer or a police officer; and
  1. (b)
    the defendant is required to appear at a time and place fixed for the hearing of the complaint—
  1. (i)
    by a summons issued on the complaint and served at least 14 days before the date on which the defendant is required by the summons to appear; or
  1. (ii)
    under a condition of the defendant’s bail or by a notice given to the defendant under the Bail Act 1980; or
  1. (iii)
    by a notice of adjournment given to the defendant a reasonable time before the date previously fixed for the hearing of the complaint; and
  1. (c)
    the defendant does not appear at the time and place fixed for the hearing of the complaint;

 the court before which the complaint comes for hearing, whether on the return date or an adjourned date, may, if it is satisfied that the facts as alleged in or annexed to or served with the complaint or summons or as stated by the complainant according to law constitute such a simple offence or breach of duty and that reasonably sufficient particulars thereof are set out in or annexed to or served with the complaint or summons or are stated by the complainant, deal with and determine the matter of the complaint as fully and effectually to all intents and purposes as if the said facts and particulars had been established by evidence under oath before it and as if the defendant had personally appeared at the time and place fixed for the hearing of the complaint.

  1. (5)
    In dealing with and determining a complaint pursuant to subsection (4) the court may take into account any information considered by it to be relevant brought to its notice by or on behalf of the complainant or defendant in relation to the circumstances of the matter of the complaint and the imposition of a penalty.”
  1. [32]
    Since the prosecutor did not bring to the notice of the magistrate any additional information, the magistrate merely relied upon the allegations of facts stated in the complaint and summons were as follows:

“On 20th day of October 2014, at Mount Isa in the Magistrates District of Mount Isa in the State of Queensland one Donald Cyril Lambert being the driver of a vehicle namely a motorbike drove at a speed over the speed limit namely 60 kilometres per hour applying to the driver for the length of road namely Barkly Highway Mount Isa where the said driver was driving and it is averred that the said motorbike is a vehicle as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that the said Barkly Highway is a road as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995.”

  1. [33]
    The appellant was convicted of the offence, fined $531.00 and ordered to pay the costs associated with preparation and filing of the complaint and summons in the sum of $90.20. A conviction was recorded.
  1. [34]
    It seems to me that the fresh evidence adduced in this appeal is both relevant to, and cast doubt upon, the merit and mode of the hearing under s 142A(4) & (5) of the Act.  It seems to me that this evidence cast significant doubt upon the merits of the proceeding, and the viability of service or notice of the complaint and summons. 
  1. [35]
    Not one, but two, statutory declarations of the appellant (dated 18 May 2015 and 29 November 2015, respectively) declared that he was not the rider of the motorbike, and he identified Shane Michael Lambert (the appellant’s brother) as the rider and together with his address. This was supported by documents that showed the appellant was working in New South Wales at the time of the offending conduct in Mount Isa in Queensland.
  1. [36]
    It is curious that the second Infringement Notice again issued against the appellant when he had shown, and it was accepted by the enforcement registrar, that the appellant was not the rider of the motor cycle at the time of the alleged offence, and they had the identity and address of the rider. 
  1. [37]
    It is even more curious that the second Infringement Notice was directed to the appellant’s New South Wales address being “19 Moon Street Ballina NSW 2478”,[5] yet the complaint and summons was directed to the appellant’s historical Queensland address at “U1 134 Ridge Street NORTHGATE 4013”.  It is evident that this was a historical and an unreliable address.  Further, in stark contrast to the Oath of Service of the complaint and summons, “U1 134 Ridge Street NORTHGATE 4013” was not the last address of the appellant known by the Traffic Office by virtue of the communication with the appellant and the data base records which ended “End Date 18/07/2016”.
  1. [38]
    In my view, the prosecutor would have had reasonable grounds to believe there was evidence that service was unreliable, the appellant was not the driver, and he had a complete defence or, at least, an arguable case against conviction.  The relevant evidence of these matters was in the power or possession of the prosecutor and available at the hearing.  They ought to have been disclosed to the magistrate given the nature of the ex parte hearing and the effect of s 142A(5) of the Act.
  1. [39]
    In these circumstances, in my respectful view, the magistrate was led into error by mistaking the facts and failing to take into account some material considerations. Having being so misled, he erred by proceeding as he did to determine the complaint and summons in the appellant’s absence pursuant to the truncated procedure permitted by s 142A(4) of the Act. This error was perpetuated by the later refusal of the appellant’s application to re-open the case.
  1. [40]
    In the circumstances, the result was a miscarriage of justice.

Application to re-open the case

  1. [41]
    As it transpired, after the hearing and as was inevitable, the complaint and summons was returned “unclaimed” on 21 September 2016, being 12 days after the hearing. This was strong evidence that the appellant had no notice of the hearing.
  1. [42]
    Once this came to the notice of the prosecutor (as well as the matters discussed above) it warranted an immediate application by the prosecutor to re-open proceedings for a rehearing pursuant to s 142A(12) or to set aside the orders pursuant to s 147A of the Act.
  1. [43]
    Section 142(12) provides for such an application to be made by the clerk of the court, complainant or the defendant for a re-hearing in accordance with s 142(12A) and (12B), as follows:

“(12)   Upon the determination of the matter of a complaint in accordance with the provisions of this section, the court at the place of determination, upon application made in that behalf by the clerk of the court or the complainant or by the defendant or the defendant’s lawyer within 2 months after such determination may, for such reason as it thinks proper, grant a rehearing of the complaint upon such terms and subject to the payment of such costs as it thinks fit.

(12A)  When a rehearing is granted—

  1. (a)
    the conviction or order made in the first instance shall, subject to subsection (12B), forthwith cease to have effect; and
  1. (b)
    the court may proceed with the rehearing forthwith or may set down the rehearing for a later date; and
  1. (c)
    on such rehearing, the court shall have and may exercise all the powers and procedures that it has in the case of an original hearing.

(12B)  If the clerk of the court, the complainant or the defendant, as the case may be, does not appear at the time and place for which the rehearing is set down, the court may, if it thinks fit, without rehearing the case, direct that the original conviction or order be restored whereupon it shall be restored to have effect accordingly and shall be deemed to be of effect on and from the date it was first pronounced.”

  1. [44]
    In the alternative, s 147A provides for an application to re-open in circumstances where, relevantly here, a conviction or order is made against the wrong person; or a defendant has no knowledge of the complaint and summons, or the order resulted from someone’s deceit. Section 147A is in these terms:

“Power of justices to reopen proceedings and rectify orders

  1. (1)
     ….
  1. (2)
    Where justices record a conviction or make an order that is based on or contains an error of fact, those justices or any other justices may, on the application of a party to the proceedings or a clerk of the court reopen the proceedings and after giving the parties an opportunity of being heard, set aside the conviction or vacate or vary the order in either case to conform with the facts.
  1. (3)
    The powers conferred by subsection (2) include power to set aside a conviction or vacate or vary an order where the justices are satisfied that—
  1. (a)
    the conviction or order has been recorded or made against the wrong person; or
  1. (b)
    the summons issued upon the complaint originating the proceedings that resulted in the conviction or order did not come to the knowledge of the defendant; or …
  1. (d)
    the conviction or order recorded or made against the person was incorrectly ordered or made because of someone’s deceit.
  1. (4)
    The justices may, upon the hearing of an application pursuant to this section, take evidence orally or by affidavit.
  1. (5)
    An application pursuant to subsection (2) shall be made within 28 days after the date of the conviction or order or such further time as the justices allow upon application made at any time in that behalf.”
  1. [45]
    However, the prosecutor made no such application to re-open.
  1. [46]
    Instead, the appellant sent an application for rehearing dated 16 October 2016 to the Mount Isa Magistrates Court, which was received by the registry on 30 November 2016.  Notwithstanding the obvious merit of the application the application was arbitrarily rejected (on the advice of the magistrate) without any hearing because it was not filed within 2 months of the conviction pursuant to s 142A(12) of the Act.  The application was not otherwise treated as one under s 147A and the discretion to extend time under s 147A(5) of the Act was not considered.  The application was refused at the registry stage.
  1. [47]
    In my respectful opinion, the application to re-open had significant merit and its extrajudicial disposal was both unjustified and resulted in a miscarriage of justice.

Disposal of Appeal 

  1. [48]
    Having regard to my findings above, the appeal ought be allowed.
  1. [49]
    The appellant appeals against the decision and seeks orders that the appeal should be allowed on the ground that the magistrate ought to have found, having regard to the available evidence, that: “The motor bike was stolen from my Sydney address (sic) found out it was my brother Shane Michael Lambert of Mt Isa.”  Reliance was placed by both parties on the record of the Magistrates Court supplemented by the fresh evidence adduced in the appeal.
  1. [50]
    The question is whether the matter should be determined on appeal or returned to the Magistrates Court for retrial. This must be considered against the stringent statutory framework, together with an independent examination and assessment of both the sufficiency and quality of the evidence.[6]
  1. [51]
    Section 20 of the Regulation states:

“A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving.

Maximum penalty -- 40 penalty units.”

  1. [52]
    A person who drives at a speed over the speed limit commits an offence against s 20 of the regulations by virtue of having so driven the vehicle.  Section 353 of the Regulation makes the offence a prescribed offence chapter 5 part 7 of the TORUM.  Where a prescribed offence is detected by a photographic detection device, s 114(1) of the TORUM operates with effect that the “person in control” of the vehicle at the time is taken to have committed the prescribed offence, notwithstanding that he or she was not the offending driver.
  1. [53]
    Section 114 of the TORUM relevantly provides as follows:

“Offences detected by photographic detection device

  1. (1)
    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.
  1. (2)
    If the actual offender is someone else, subsection (1) does not affect the liability of the actual offender but the person in charge and the actual offender cannot both be punished for the offence.
  1. (3)
    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
  1. (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; …

(3A)  …

  1. (4)
    A defence under subsection (3) … is available only if the person notifies the commissioner or chief executive about the matters in subsections (3) and (6), or subsection (3A) in a statutory declaration given within the required time.
  1. (5)
    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;
  1. (b)
    an infringement notice under the State Penalties Enforcement Act 1999.
  1. (6)
    …”
  1. [54]
    In the absence of a viable defence under s 114(3) of the TORUM, where a speeding offence has been committed, criminal responsibility for it under s 114(1) is not dependent upon a factual finding that the person in control was the driver of the vehicle at the time the offence was committed.  To conclude that criminal responsibility is attributed to an individual under s 114(1), the magistrate must find, and need only find, that a speeding offence has happened; that the offence has been detected by a photographic detection device; and that the individual was the person in charge of the speeding vehicle at the time. No finding as to the identity of the actual driver need be made.[7]
  1. [55]
    In order to avoid this strict approach, the “person in charge” (who is not the driver) of a registered vehicle must comply with the strict temporal rigors of ss 114(3), (4) and (5) of the TORUM.[8]   
  1. [56]
    There is no dispute that the appellant was a “person in charge” within the meaning of s 113 of the TORUM since he was the registered operator of the motor cycle at the time of the offending conduct.  It is also clear the appellant provided the requisite proof of the matters in sub-sections 114(3) because his statutory declarations dated 18 May 2015 and 29 November 2015 (corroborated by supporting documents) prove that:
  1. (a)
    The appellant was not the driver of the motor cycle at the time the offence happened; and
  1. (b)
    The appellant notified the commissioner (via the Traffic Office) of “Shane Michael LAMBERT of 130 Pamela Street in Mt Isa” as the person in charge of the motor cycle at the time the offence happened.
  1. [57]
    The critical issue is whether at least one statutory declaration, although compliant with s 114(3), was “given within the required time” required by s 114(4) and (5) of the Act. 
  1. [58]
    The respondent argues that the strict legislative regime required the respondent to give yet another compliant statutory declaration within the period of 28 days after he was given the second infringement notice.
  1. [59]
    The term “given” can be equated with the expressions ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’.  Section 39 of the Acts Interpretation Act 1954 (Qld) provides that:

“(1) If an Act requires or permits a document to be served on a person, the document may be served—

  1. (a)
    on an individual—
  1. (i)
    by delivering it to the person personally; or
  1. (ii)
    by leaving it at, or by sending it by post, telex, facsimile or similar facility to, the address of the place of residence or business of the person last known to the person serving the document; or
  1. (b)
    on a body corporate—by leaving it at, or sending it by post, telex, facsimile or similar facility to, the head office, a registered office or a principal office of the body corporate.
  1. (2)
    Subsection (1) applies whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.”
  1. [60]
    As to service by post, s 39A of the Acts Interpretation Act 1954 (Qld) provides that:

39A Meaning of service by post etc

  1. (1)
    If an Act requires or permits a document to be served by post, service-
  1. (a)
    may be effected by properly addressing, prepaying and posting the document as a letter; and
  1. (b)
    is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.”
  1. [61]
    Sections 39(1)(a)(ii) and s 39A(1) deal with the delivery (here by the act of giving), rather than upon receipt of a document. As the High Court observed in Fancourt v Mercantile Credits Ltd:[9]

“... delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post.”

  1. [62]
    Unless proved to the contrary, once a document is “given” it remains so “given” in the ordinary course of post unless the contrary is proved by non-receipt. In that sense the requirement to give notice of the defence by statutory declaration is not confined to a static event. Further, I do not accept that the previous statutory declarations were somehow rendered nugatory by operation of the administrative arrangements of cancelling the enforcement order, and subsequent issuance of the second infringement notices. It is enough, in my view, that the commissioner had been given such notice in the appropriate form within the required time of 28 days after service of the infringement notice.
  1. [63]
    In this case the appellant first posted a compliant statutory declaration made 18 May 2015, which was received by the Traffic Office on 21 May 2015.   After further correspondence and in conjunction with his Application to Cancel the Enforcement Order, the appellant posted a second compliant statutory declaration made on 29 November 2015, which was received by the Traffic Office on 3 December 2016.  The Traffic Office acknowledged receipt of those compliant statutory declarations and did not return to the appellant.  Indeed, they remained in the possession of the commissioner (via the Traffic Office) within the required time of 28 days after service of the infringement notice, and up to the time of this appeal.
  1. [64]
    In my view, in the very unusual circumstances of this case, the commissioner has been given notice of the appellant’s defence in accordance with s 114(3) of the Act in the form of two statutory declarations (and corroborative alibi and identity evidence). The requisite notice remained so given within the required time of 28 days after service of the second Infringement Notice, in compliance with ss 114(4) and (5) of the Act. Therefore, it was unnecessary for the appellant to give a fresh and third statutory declaration containing the same information as contended by the respondent.
  1. [65]
    Having reached this conclusion, the appropriate course is to allow the appeal and set aside the conviction and orders of the Magistrates Court. Given the stage of the proceeding at the time of the original hearing in the Magistrates Court, it is appropriate that the proceeding be remitted to the Magistrates Court for rehearing and determination according to law, after due notice is given to the appellant. Of course, this course seems futile having regard to the evidence before me, the effect of which is that the appellant can not be proved to have committed the offence.
  1. [66]
    Alternatively, the respondent may elect to take a different course and prosecute the offence against the offending driver. Since the conviction against the appellant for this camera-detected offence will be set aside by my orders, because he can not be proved to have committed the offence, s 115 extends the limitation period to enable the respondent to start proceedings against the identified driver within 3 months.

Conclusion

  1. [67]
    For these reasons, I will make the following orders:
  1. The appeal is allowed. 
  1. The conviction and orders of the Magistrates Court made on 5 September 2016 are set aside.
  1. The proceeding commenced by of the Complaint and Summons is remitted to the Magistrates Court Mount Isa Registry for rehearing and determination according to law before a different magistrate in due course.

Judge DP Morzone QC DCJ

Footnotes

[1] White v Commissioner of Police [2014] QCA 121 at [8] per Morrison JA (Muir JA & Atkinson J agreed).

[2] White v Commissioner of Police [2014] QCA 121 at [8] per Morrison JA (Muir JA & Atkinson J agreed).

[3] White v Commissioner of Police [2014] QCA 121 at [4] per Morrison JA (Muir JA & Atkinson J agreed).

[4] Cf. Herron v McGregor (1986) 6 NSWLR 246 at 253.

[5] Copy provided was with the defendant’s application to re-open.

[6] Morris v R (1987) 163 CLR 454 at 463-4, 466 per Mason CJ, at 473 per Deane, Toohey and Gaudron JJ, at 477-9 per Dawson J.

[7] Attorney-General (Qld) v Morris [2015] QCA 112 at [21].

[8] Vinson v Hongara [2014] QDC 249 at [28].

[9] Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 97

Close

Editorial Notes

  • Published Case Name:

    Lambert v Queensland Police Service

  • Shortened Case Name:

    Lambert v Queensland Police Service

  • MNC:

    [2017] QDC 147

  • Court:

    QDC

  • Judge(s):

    Morzone DCJ

  • Date:

    31 May 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Attorney-General v Morris [2015] QCA 112
2 citations
Jump To
Cite 1 - [2015] QCA 112
Cite 2 - [2015] QCA 112
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
2 citations
Jump To
Cite 1 - (1983) 154 CLR 87
Cite 2 - (1983) 154 CLR 87
Herron v McGregor (1986) 6 NSWLR 246
2 citations
Jump To
Cite 1 - (1986) 6 NSWLR 246
Cite 2 - (1986) 6 NSWLR 246
Morris v R (1987) 163 C.L.R 454
2 citations
Jump To
Cite 1 - (1987) 163 C.L.R 454
Cite 2 - (1987) 163 C.L.R 454
Vinson v Hongara [2014] QDC 249
2 citations
Jump To
Cite 1 - [2014] QDC 249
Cite 2 - [2014] QDC 249
White v Commissioner of Police [2014] QCA 121
4 citations
Jump To
Cite 1 - [2014] QCA 121
Cite 2 - [2014] QCA 121
Cite 3 - [2014] QCA 121
Cite 4 - [2014] QCA 121

Cases Citing

Case NameFull CitationFrequency
Mann v Sunshine Coast Regional Council [2017] QDC 2772 citations
1

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