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  4. Neucom v Commissioner of Police - [2022] QDC 204

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Neucom v Commissioner of Police[2022] QDC 204

Neucom v Commissioner of Police[2022] QDC 204

DISTRICT COURT OF QUEENSLAND

CITATION:

Neucom v Commissioner of Police [2022] QDC 204

PARTIES:

KRIS DAVID NEUCOM

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO:

D8 of 2021

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Hervey Bay Magistrates Court

DELIVERED ON:

1 September 2022

DELIVERED AT:

Brisbane District Court

HEARING DATE:

14 February 2022

JUDGE:

Sheridan DCJ

ORDER:

  1. The appeal is dismissed.
  2. No order as to costs. 

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant was charged with a traffic offence – where appellant appeals conviction – whether there was sufficient evidence for Magistrate to find appellant guilty

LEGISLATION:

State Penalties Enforcement Act 1999 (Qld), s 157

Transport Operations (Road Use Management) Act 1995 (Qld), s 114

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

Justices Act 1886 (Qld), s 222, s 223

CASES:

Allesch v Maunz (2000) 203 CLR 172

Forrest v Commissioner of Police [2017] QCA 132

Fox v Percy (2003) 214 CLR 118

McDonald v Queensland Police Service [2018] 2 Qd R 612

Rowe v Kemper [2009] 1 Qd R 247

Teelow v Commissioner of Police [2009] 2 Qd R 489

White v Commissioner of Police [2014] QCA 121

APPEARANCES:

Appellant appeared in person

C L Barron for the respondent

Introduction

  1. [1]
    Mr Neucom was convicted of an offence of his vehicle having exceeded the speed limit in a speed zone by less than 13 km per hour on 8 June 2020 under s 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld). Under s 353 of the Regulations, this is a prescribed offence for the purposes of s 114 of the Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM Act).
  2. [2]
    Section 114 relevantly provides:

“114 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 can not 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, the chief executive or the SPEA administering authority of the name and address of the person in charge of the vehicle at the time the offence happened; or
  1. (ii)
    has notified the commissioner, the chief executive or the SPEA administering authority 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.

…

  1. (4)
    A defence under subsection (3) or (3A) is available only if the person notifies the commissioner, the chief executive or the SPEA administering authority about the matters in subsections (3) and (6), or subsection (3A), within the required time—
  1. (a)
    in a statutory declaration; or
  1. (b)
    in an online declaration.
  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)
    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
  1. (ii)
    had in place a reasonable way of finding out the name and address of the person in charge of the vehicle at any time having regard to-
  1. (A)
    the number of drivers; and
  1. (B)
    the amount and frequency of use; and
  1. (C)
    whether the vehicle was driven for business or private use; and
  1. (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.”
  1. [3]
    Although the precise grounds of appeal are hard to discern, Mr Neucom says he was not the driver and he was denied a fair hearing.

Proceedings before the Magistrate

  1. [4]
    In the proceedings before the Magistrate, Mr Neucom did not dispute that he was the registered owner of the vehicle. His defence was that he was not the driver.
  2. [5]
    Mr Neucom said that he had lodged a notice of challenge.  He said that he had sent an affidavit to the “road safety mob” saying that he was not the driver. When asked whether he had a copy on him, Mr Neucom told the Magistrate that he had brought the wrong folder to court. 
  3. [6]
    Mr Neucom was told by the Magistrate that the court could not deal with the matter that day because “we’d need to have a look at the documents”. 
  4. [7]
    In the course of discussions, Mr Neucom accepted that he had not nominated another driver.  He said that he had spoken to everyone that had access to the vehicle and he said that everyone had said, “It wasn’t me.”  Mr Neucom said that he was copping it because “I wasn’t even in Hervey Bay [at] that time.” 
  5. [8]
    The Senior Constable representing the Commissioner of Police maintained that no declaration had been received. 
  6. [9]
    In discussions with the Magistrate at the oral hearing, Mr Neucom also made reference to a witness from the manufacturing company who could say the detection device was a measuring device not a speed detection device.  When challenged about that evidence, Mr Neucom accepted that he had not and was not challenging the operation, accuracy or calibration of the device; rather he accepted his defence was that he was not the driver.
  7. [10]
    The Magistrate said that the proceedings would be adjourned to enable Mr Neucom to return home to obtain a copy of the documents he insisted he had sent to the police.  The Magistrate offered that the matter could be resumed in the afternoon or even at lunchtime. To accommodate the needs of Mr Neucom, the matter was adjourned to 10.30 am, a period of almost 2 hours.
  8. [11]
    Upon court resuming at 10.34 am, Mr Neucom said he had been unable to find the originals and in discussions with the prosecutor had realised that in fact when he sent it in it was not signed at the bottom.
  9. [12]
    The Magistrate then asked if he was seeking an adjournment.  In response, Mr Neucom said that he had all that he needed to proceed with the hearing.
  10. [13]
    The charge was read out and Mr Neucom pleaded not guilty.  The prosecutor said that this was a matter concerning the use of a photographic detection device and that the evidence will be by way of certificate evidence.
  11. [14]
    The certificates tendered which were made exhibits before the Magistrate were:
    1. (a)
      A certificate pursuant to s 120 of the TORUM Act under the hand of Stephen Simons, (Principal Advisor (Operations), Road Safety Camera Office), certifying the images, which show the speed of the vehicle, were properly taken by the photographic detection device (being a Vitronic speed camera system, Model Poliscan FM1 bearing serial number 7577380) (the device) and that detection device with that number was used specifically at a location, namely Charlton Esplanade, Point Vernon (Exhibit 1);
    2. (b)
      A certified image showing the vehicle number plate to be 910-WJY (Exhibit 2);
    3. (c)
      A certificate pursuant to s 20(2)(a) of the TORUM Act under the hand of Stephen Simons (Principal Advisor (Operations), Road Safety Camera Office), certifying the testing of the device in accordance with the manufacturer’s specifications and all requirements as prescribed under regulation (Exhibit 3);
    4. (d)
      A certificate pursuant to s 123C(3) of the TORUM Act under the hand of Stephen Simons (Principal Advisor (Operations), Road Safety Camera Office), certifying under s 212 [of the Traffic Regulation 1962 (Qld)] that the camera at camera site code number 588011102 is part of the Traffic Camera Coding Manual (Exhibit 4);
    5. (e)
      A certificate pursuant to s 157 of the State Penalties Enforcement Act 1999 (Qld) under the hand of Kay Burman (Principal Advisor (Prosecutions), Road Safety Camera Office) certifying the infringement notice for the offence (Exhibit 5); and
    6. (f)
      A certificate pursuant to s 123C(1) of the TORUM Act certifying that the vehicle with the registration number 910-WJY (being a 2001 Ford F250 utility) was registered in the name of Kris David Neucom (Exhibit 6); and
    7. (g)
      A s 95 certificate [under the Evidence Act 1977 (Qld)] confirming statements produced by computer to identify vehicle registration and owners name and address details for service of the infringement notice (Exhibit 7).
  12. [15]
    Two certificates were tendered pursuant to s 157 of the State Penalties Enforcement Act 1999 (Qld) under the hand of Kay Burman (Principal Advisor (Prosecutions), Road Safety Camera Office) certifying that the infringement notice was sent to Mr Neucom and that Mr Neucom had not given the commissioner notification by way of a legal user declaration, known user declaration, unknown user declaration or sole vehicle declaration within 28 days from the infringement notice issued date in compliance with s 114 of the TORUM Act.
  13. [16]
    At the hearing before the Magistrate these certificates were not challenged, except in relation to the 28 days’ notice.  Mr Neucom challenged the date of receipt of the traffic infringement notice for the purpose of calculating the 28-day period.
  14. [17]
    Mr Neucom said that he had challenged the notice. He said that he did send it in but he forgot to sign the document. He admitted he did not have the original as he could not find it. The Magistrate again asked Mr Neucom if he wanted an adjournment.  Mr Neucom responded, “No, I want it dealt with today, your Honour.”  In response, the Magistrate stated, “Then I will deal with it today on the basis of the evidence before me. Do you wish to give evidence?”
  15. [18]
    Mr Neucom was sworn, answered questions asked by the Magistrate and was cross-examined. Mr Neucom confirmed that he was not disputing the camera accuracy or that the vehicle was detected on that day but he was disputing that he was the driver of the vehicle that day.
  16. [19]
    In cross examination, Mr Neucom was asked questions about the persons who would have access to the vehicle.  He said the keys to the vehicle were kept in his home office and that there were four people who would have access to the vehicle.  He described the people as subcontractors.  He said provided someone was at the house, then they would have access to the property to get the keys to drive the vehicle.  He said there were three people who were there on that day and that he had taken the people in, questioned them, no one wanted to own up and so he said that he had sacked them all. 
  17. [20]
    He was then asked, “You could have provided those three persons’ details, though, to transport department as being persons that could have driven that vehicle, instead of unknown?” The following exchange then occurred:

“Witness: Well, that’s an allegation. I’m not …

His Honour: Just answer the question: could you have done that? …

Witness: No, because I’m not putting an allegation out that’s - I don’t have evidence to say which one of those three physically drove that vehicle.

Snr Con Edwards: I put it to you that you don’t have any evidence who was driving the vehicle?

Witness: I put to you you don’t have any evidence that I was driving the vehicle.

Snr Con Edwards: I’m not going to get into debate, but it is a speed camera, and as the owner and under TORUMs, you have the responsibility as the owner to enforce or tell persons who was driving your vehicle?

Witness: And your point being?

Snr Con Edwards: Your Honour …

His Honour: Did you do that?

Witness: Did I do what? Drive the vehicle?

His Honour: Did you send an affidavit into the Police Commissioner?

Witness: I – on the back of the fine that I received …

His Honour: No, don’t worry about that. Did you do an affidavit or statutory declaration or an online form …?

Witness: The stat dec on the back was filled out.

His Honour: Right?

Witness: And sent in to the address on there.

His Honour: And what did it say?

Witness: It was – it was returned because it wasn’t signed.

His Honour: All right. Did you send another one?

Witness: I’ve got the other one here.

His Honour: Did you send another one?

Witness: No.

His Honour: Okay.

Snr Con Edwards: I have no …

Witness: I’ve got it here, all signed.

Snr Con Edwards: I have no further questions, your Honour.

His Honour: All right. Anything else you wish to say in response to the cross-examination?

Witness: I wasn’t the driver.

His Honour: All right. You can return back to the bar table.” 

  1. [21]
    After returning to the bar table, the Magistrate asked whether he wished to make any submissions as to why he should not be found guilty. Mr Neucom said that he was not the driver and said that he had an affidavit with him that he would like to submit.  The Magistrate refused to take the tender saying Mr Neucom had given evidence under oath.
  2. [22]
    The contents of the affidavit are not known.  Mr Neucom did not tender it on the hearing of the appeal and said, when asked at the hearing of the appeal, that he did not have it with him.

The Magistrate’s Decision

  1. [23]
    In giving his decision, the Magistrate referred to a traffic detection device that caught a vehicle speeding and to the provisions in the TORUM Act that essentially are deeming provisions, and in particular to the provisions of s 114 that provide that if a person is not the driver of the vehicle at the time that the offence happened in a speeding matter, then it was a defence if he has notified the commissioner or chief executive of the name and address for the person in charge of the vehicle at the time that the offence happened or 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.
  2. [24]
    The Magistrate referred to the evidence given by Mr Neucom.  He referred to the fact that Mr Neucom said that he did not send a sworn document because it was returned not signed and he then said that he did not send a second one because “he would not send just an allegation”.  He found that Mr Neucom had not sent a document either disclosing the name and address of the person who was in charge or that he did not know or could not know with reasonable diligence who was the driver and that there was a certificate to that effect.
  3. [25]
    The Magistrate summarised the effect of the remaining deeming provisions, as essentially deeming the vehicle’s owner to be the driver and, in this case, having regard to the certificates and the fact that there is no challenge to the operation or the calibration of the device or no notice given pursuant to s 114 of the TORUM Act, and found Mr Neucom guilty beyond reasonable doubt.

Mode of Appeal

  1. [26]
    The appeal is brought by the appellant pursuant to s 222 of the Justices Act 1886 (Qld).
  2. [27]
    Pursuant to s 223 of that Act, an appeal under s 222 is by way of rehearing on the original evidence, with any new evidence adduced only by leave. 
  3. [28]
    The rehearing requires this court 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.”[1]
  4. [29]
    The process involves a “real review”[2] of the record of proceedings below, rather than a “completely fresh hearing.”[3]
  5. [30]
    In such an appeal, the appellant must establish some “legal, factual or discretionary error”.[4]
  6. [31]
    The appellate court ought to pay due regard to the advantage that the Magistrate had in observing a witness' tone and demeanour.[5]

The Parties’ Contentions

  1. [32]
    In his notice of appeal, Mr Neucom referred to his seeking a fair hearing and for the prosecution to prove that he was the driver of the vehicle.  He referred to the Magistrate having refused to accept the tender of his paperwork that he had been sent home to get.  He maintained that the prosecution documents proved that the camera detected a vehicle but did not prove that he was the driver of the vehicle and that he had told the court that he was not the driver and that other persons had access to the vehicle and the Magistrate had “refused to take my side in to consideration.” 
  2. [33]
    In his separate written submissions, Mr Neucom referred to having been discriminated against with prejudice by the Magistrate to the point where he was threatened in court and to the Magistrate’s refusal to listen to his defence.
  3. [34]
    In making oral submissions, for the first time the focus of Mr Neucom’s submissions became that the infringement notice was fraudulent as it referred to Charlton Esplanade when there is no Charlton Esplanade; the street being known as The Esplanade.
  4. [35]
    Mr Neucom sought and was given leave to tender three photographs of the area which he submitted disclosed that the street was known as The Esplanade, which he submitted supported his submission that the notice was fraudulently issued.
  5. [36]
    In oral submissions, Mr Neucom further maintained that before the Magistrate he had the documents in court which would prove who the driver was and that the Magistrate had refused to accept the tender of the documents.  Mr Neucom said that he had disclosed in the documents the name of the driver as Terry Holmes.
  6. [37]
    In responding to the submissions made by Mr Neucom, on behalf of the respondent, it was submitted that it is clear from a review of the transcript that no statutory declaration was sent by Mr Neucom nominating someone else as the driver of the vehicle at the time. It was submitted that, in those circumstances, Mr Neucom is captured by the deeming provisions.
  7. [38]
    In terms of the ground of appeal of Mr Neucom not having been afforded natural justice, it was submitted by the respondent that the Magistrate offered a number of times to adjourn the matter which offers were refused and that the Magistrate stood the matter down to enable Mr Neucom to return home to collect the documents.  Upon his return, when he said he could not find the documents, he was again asked whether he wished the matter to be adjourned.  It was submitted the ground was without evidentiary basis.
  8. [39]
    In terms of any suggestion of there being discrimination and bias of the Magistrate; it was submitted on behalf of the respondent that a review of the proceedings shows that the proceedings were conducted in a fair and just manner and that no reasonable person might apprehend or suspect that the learned Magistrate prejudged the case.  It was submitted that there is no evidence that the Magistrate threatened Mr Neucom.
  9. [40]
    In his written submissions, and orally in reply, Mr Neucom relied on the following exchange after the Magistrate had found Mr Neucom guilty, imposed the fine and made a costs order:

“Defendant: I don’t accept what you’re going to hand out.

His Honour: Then you have a right to appeal my decision.

Defendant: I will. I will walk straight out and put an appeal in and get a real judge.

His Honour: Well, just be careful what you say.

Defendant: Are you threatening me, your Honour?

His Honour: All right.

TAKE IN DECISION

His Honour: All right. So in relation to the matter …

Defendant: Are you threatening me, your Honour?

His Honour: … you will be convicted and fined $177, ordered to pay $103.60 in costs of summons and those amounts will be referred to the State Penalties Enforcement Registry.

Defendant: Did you just threaten me, your Honour?

Snr Con Edwards: Thank you, your Honour.

His Honour: Thank you.”

Consideration

  1. [41]
    The statement by the learned Magistrate was no more than a warning to Mr Neucom that he was obliged to treat the court with respect and that he should avoid any wilful insult; which might amount to an offence.
  2. [42]
    There is nothing which suggests that the Magistrate should have accepted the tender of an affidavit by Mr Neucom after he had given his evidence, particularly given the fact that there is no reason to think that the affidavit had any relevance to the facts in issue. It certainly has not been demonstrated otherwise, or that it would have changed the result; either of the hearing before the Magistrate or this appeal.
  3. [43]
    The Magistrate allowed Mr Neucom ample opportunity to properly present his case; both before and at the time of the hearing. The Magistrate exercised proper restraint at all times and there is no justification for the allegations that he was prejudiced.
  4. [44]
    As to the merits or otherwise of the charge, the focus of the submissions on behalf of Mr Neucom only dealt with part of the legislative framework; namely whether he was the actual driver.  Mr Neucom’s submissions do not deal with the provisions of the legislation which allows a person in charge of a vehicle to defend themselves against the charge. 
  5. [45]
    The framework requires the person to not only prove that they were not the driver at the time the offence happened, but that the person notified the commissioner of the name and address of the person in charge of the vehicle at the time or notified the commissioner 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.  That notification is required to be given by statutory declaration or in an online declaration and required to be given within 28 days of written notice of a camera detected offence or an infringement notice, whichever is given first. Mr Neucom did not attempt to prove that he had complied with the statutory requirements. Indeed, he admitted that he had not.
  6. [46]
    In giving oral evidence, Mr Neucom accepted that he had not sent a signed statutory declaration and said that he could not disclose the names of the potential drivers of the vehicle which his enquiries had revealed as that would be “an allegation.”  In the appeal proceedings, in making submissions he gave for the first time the name of the driver, saying that the name was previously disclosed but was unable, when invited to do so, to provide any documents; again, saying that he did not have them with him.  It is difficult to accept that assertion from the bar table so late in time and inconsistent with his earlier evidence, but it is unnecessary to deal further with the issue given his admission that no declaration was provided to the commissioner in the way and in the time required by the statute. 
  7. [47]
    The various certificates prove that the offence took place at a nominated location. It is submitted by Mr Neucom that the location nominated had a different name. The only evidence offered in this respect are some photographs of the street signage and reference in submissions to Google Earth. That is hardly convincing. In any event, those exhibits do not prove that the offence was not committed at the time and place nominated; even if the place nominated has a different name. If the matter had any merit, it could have been dealt with by the respondent either by way of further evidence or an application for an amendment of the charge. It is too late to raise the allegation now. The allegation certainly does not raise any issue of fraud.
  8. [48]
    The appeal is dismissed.
  9. [49]
    As the respondent has not sought the making of an order for costs, it is appropriate to record that there be no order as to costs.

Footnotes

[1] White v Commissioner of Police [2014] QCA 121 at 2 [6]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at 627 [47]; Rowe v Kemper [2009] 1 Qd R 247 at 253 [3].

[2] Forrest v Commissioner of Police [2017] QCA 132 at 5; McDonald v Queensland Police Service [2018] 2 Qd R 612 at 627 [47]; Rowe v Kemper [2009] 1 Qd R 247 at 253-254 [5]; Fox v Percy (2003) 214 CLR 118 at 126-127 [25].

[3] White v Commissioner of Police [2014] QCA 121 at 2-3 [8].

[4] Allesch v Maunz (2000) 203 CLR 172 at 180-181 [23]; Teelow v Commissioner of Police [2009] 2 Qd R 489 at 495 [4].

[5] White v Commissioner of Police [2014] QCA 121 at 6 [22]; Forrest v Commissioner of Police [2017] QCA 132 at 5.

Close

Editorial Notes

  • Published Case Name:

    Neucom v Commissioner of Police

  • Shortened Case Name:

    Neucom v Commissioner of Police

  • MNC:

    [2022] QDC 204

  • Court:

    QDC

  • Judge(s):

    Sheridan DCJ

  • Date:

    01 Sep 2022

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
Allesch v Maunz (2000) 203 CLR 172
2 citations
Jump To
Cite 1 - (2000) 203 CLR 172
Cite 2 - (2000) 203 CLR 172
Forrest v Commissioner of Police [2017] QCA 132
3 citations
Jump To
Cite 1 - [2017] QCA 132
Cite 2 - [2017] QCA 132
Cite 3 - [2017] QCA 132
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
McDonald v Queensland Police Service[2018] 2 Qd R 612; [2017] QCA 255
3 citations
Jump To
Cite 1 - [2018] 2 Qd R 612
Cite 2 - [2018] 2 Qd R 612
Cite 3 - [2018] 2 Qd R 612
Rowe v Kemper[2009] 1 Qd R 247; [2008] QCA 175
3 citations
Jump To
Cite 1 - [2009] 1 Qd R 247
Cite 2 - [2009] 1 Qd R 247
Cite 3 - [2009] 1 Qd R 247
Teelow v Commissioner of Police[2009] 2 Qd R 489; [2009] QCA 84
2 citations
Jump To
Cite 1 - [2009] 2 Qd R 489
Cite 2 - [2009] 2 Qd R 489
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

No judgments on Queensland Judgments cite this judgment.

1

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