Police v Simpson[2016] QMC 28

MAGISTRATES COURT AT IPSWICH

1. Mikaela Kate Simpson was charged by way of complaint and summons that, contrary to section 20 of the Transport Operations (Road Use Management Road Rules) Regulation 2009, on 8 December 2015 she drove a motor vehicle at a speed over the 40 kph limit which then applied to the road on which she was driving.

2. The complaint particularised that the offence occurred at 1535 hours, the vehicle was registered number 610-VRD, the speed was 74 kph in a school zone between 2-4 pm and that a photographic detection device infringement notice number 2037342142 issued on 10/03/2016.

3. The matter was set for hearing and proceeded by way of what is sometimes referred to as a ‘paper prosecution’, that is the evidence relied to prove the offence consists of a series of certificates and other documents which in conjunction with various statutory evidentiary aids, go to make up the evidence. No witnesses were called and therefore no oral evidence was given.

4. In any prosecution there are some fundamental principles which apply to safeguard those charged with offences, whether serious or not so serious. Generally, before a person can be convicted of an offence the prosecution have to prove each element of the offence beyond a reasonable doubt. They do so by relying on relevant (and therefore admissible) evidence. A trial is an accusatorial and adversarial process.

5. That onus and standard of proof as well as what constitutes evidence may be varied or determined by a clear legislative enactment. In Lee v The Queen^[1] (2014) 253 CLR 455, at paragraph 32 the High Court noted,

Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that "no attempt to whittle it down can be entertained" albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.

(footnotes deleted)

6. In the present case the prosecutions’ pathway to conviction was the evidence provided by a series of certificates, photos and other documents said to be admissible pursuant to various statutory provisions.

7. An overview of the prosecution case helps understand this unusual matter. The prosecution, in an opening, alleged that a vehicle, registration number 610-VRD, was caught on camera travelling at 74 kph in a 40 kph zone on the relevant day. An infringement notice was issued to City Motor Auction Group Pty Ltd (the apparent registered owner of the vehicle). That organisation was said to have subsequently provided a statutory declaration nominating Mikaela Simpson as the person in charge of the vehicle at the time of the offence. Mikaela Simpson apparently provided a statutory declaration nominating Daniel Gannon as being the person in charge at the relevant time. In turn Daniel Gannon provided a statutory declaration nominating Mikaela Simpson as the person in charge at the relevant time.

8. The respective infringement notices issued to each of the above business and natural persons were in turn withdrawn against them when they provided declarations that someone else was in charge of the vehicle at the time. The last infringement notice was sent to Mikaela Simpson by mail. No further response or additional declaration was received from Simpson and she was ultimately summonsed for the offence. Ms Simpson appeared but was not represented. She pleaded not guilty to the charge. At the conclusion of the prosecution case I ruled there was no evidence upon which the defendant could be convicted. I dismissed the charge and she was discharged. I advised the parties that I would provide them with written reasons. My reasons are as follows.

9. Each step in this chain needs to be examined. I will put aside for these purposes certain of the formal issues such as proof of delegations or other authority to sign certificates.

10. Where a defendant is put on trial for an offence and where reliance is placed on statutory aids to the extent that no person is called to give evidence, even where the critical issue in dispute may hinge on a determination of credibility, absolute and strict compliance with those statutory provisions must be achieved.

11. In A-G (Qld) v Morris & Anor [2015] QCA 112 the validity of various provisions of the Transport Operations (Road Use Management) Act 1995, including section 114, where called into question. The Court of Appeal while upholding the validity of those provisions said:

[12] The role of s 114(1) is to attribute criminal responsibility to the person in charge in the circumstances in which it operates. The section does not create a new and separate offence. The person in charge is taken to have committed “the offence”, that is to say, the prescribed offence that has happened and has been detected by a photographic detection device. Thus the factual basis for attribution of criminal responsibility for the prescribed offence under s 114(1) is different from that under s 20. For the driver, attribution is based upon his or her having driven over the speed limit. For the person in charge, attribution is based upon the prescribed offence having happened, its having been detected by a photographic detection device, and the status of the individual as the person in charge of the vehicle.

[13] Thus, where the person in charge is not the offending driver, criminal responsibility for the offending will be attributed to two individuals. Section 114(2) affirms that both are criminally liable for the offence but has effect that only one of them may be punished for it.

[21] Where a s 20 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.

[22] Thus, there is no intrusion upon the judicial function by requiring a fiction to be found as fact. Moreover, if an issue does arise as to the identity of the offending driver as a result of steps taken under ss 114(3) or (8), the Magistrate may exercise jurisdiction to determine that issue of fact.

(underlining added)

In the present case the prosecution was based on the allegation that the defendant was the person in charge or the actual driver of the vehicle.  On the prosecution case that issue was in dispute and in any event the defendant pleaded not guilty thereby putting all issues in dispute.

An offence was detected

12. On 8 December 2015 an appropriately authorised and accurate camera detection device photographed a vehicle bearing number plate 610-VRD travelling at 74 kph in a 40 kph zone. Exhibit 1 was a series of 3 photos from that camera which showed the rear of the vehicle and the number plate. Two of those photos had on them various pieces of data including the date and time, the speed of the vehicle and the speed applicable to that part of the road. Exhibit 3 was a certificate issued pursuant to section 120 (2A) of the Transport Operations (Road Use Management) Act 1995 which provides

A certificate purporting to be signed by an official stating that a stated photographic detection device—

1. (a)
   was tested at a stated time and in accordance with—

1. (i)
   the specifications of the device’s manufacturer; and

1. (ii)
   any further requirements about calibration testing prescribed under a regulation; and

2. (b)
   was found to produce accurate results at the time of testing;

is evidence of the matters stated and evidence the device was producing accurate results when so tested and for 1 year after the day of testing.

Subsection (4) of that section provides:

If an image produced under subsection (2) has a marking or writing on the image—

1. (a)
   the marking or writing is taken to have been properly made by the photographic detection device; and

2. (b)
   the image is also evidence of each thing in relation to the image that the marking or writing is prescribed to mean under a regulation.

13. Exhibit 4 was a certificate issued pursuant to section 60(4) of the Transport Operations (Road Use Management) Act 1995 and section 212 of the Traffic Regulation 1962 the effect of which was to prove that the relevant device had been tested on 26 June 2015 and that the relevant portion of road was covered by a 40kph speed limit.

14. Exhibit 6 was a certificate issued pursuant to sections 60(2)(d)(i) and 124(1)(n)(ii) of the Transport Operations (Road Use Management) Act 1995 the effect of which was to prove that the vehicle number 610-VRD was registered to City Motor Auction Group Pty Ltd. This is relevant because of the provisions of section 17 of the State Penalties Enforcement Act 1999 which provides that the owner of the vehicle is taken to have committed the offence even though the actual offender may have been someone else.

15. A number of provisions of the State Penalties Enforcement Act 1999 and the Transport Operations (Road Use Management) Act 1995 are set out at the end of these reasons.

The first infringement notice.

16. Exhibit 7 purported to be a certificate issued under s 157(2)(j) of the State Penalties Enforcement Act 1999. A copy of that certificate is seen below.^[2]

17. On closer examination it did not strictly comply with the relevant provision because it did not refer to the supply of a known user declaration as defined. Section 121(3)(b) of the Transport Operations (Road Use Management) Act 1995 provides that a reference to a known user declaration in the State Penalties Enforcement Act 1999 is taken to be a reference to the appropriate approved form for section 114. That however is a matter of form.

18. Irrespective of the type of form used the certificate would have to assert that referred to in S 157(2)(j) in the order to comply with that provision. In the absence of the actual declaration and some basis for its admission, the certificate produced does not comply with what is required by s 157(2)(j) in that it does not describe a known user declaration or the constituent parts of such a declaration as defined. The certificate however was relevant to prove the matters referred to in 157(2)(a) despite there being a reference only to s 157(2)(j) on the face of the certificate.

19. The certificate did not state when the infringement notice was issued or attach a copy of that infringement notice. The certificate was admitted to prove that an infringement notice was issued and that the organisation subsequently nominated Mikaela Simpson as the person in charge but it was not admitted as proof that Mikaela Simpson was in fact the person in charge.

20. The proceedings were commenced on the basis of a declaration from someone else (Gannon) and section 19(3) of the State Penalties Enforcement Act 1999 provides that a proceeding for an offence can only be commenced if the declaration is served on the user.^[3]

21. Section 19(4) of that Act provides that a relevant declaration is evidence of its contents in proceedings for an offence. That might in other circumstances provide that the declaration provided by City Motor Auction Group Pty Ltd was some evidence that Mikaela Simpson was in fact the person in charge or actual driver but that declaration was not the declaration relied on to support the prosecution and as such could not provide any proof she was the person in charge. Also the declaration from City Motor Auction Group Pty Ltd was not produced. Pursuant to section 19(4) it is the declaration which could provide evidence that the defendant might have been the driver not the certificate.

22. Sections 60, 114, 120 and 124 of the Transport Operations (Road Use Management) Act 1995, which are evidentiary aid provisions of that Act do not make provision that such a declaration is evidence that she was in fact the driver.

23. The infringement notice issued was withdrawn against City Motor Auction Group Pty Ltd – exhibit 7.

The second infringement notice.

24. Exhibit 8 was another certificate (similar to above example) which purported to establish that Mikaela Simpson was issued with an infringement notice and that she provided a declaration that another person, Daniel Gannon, was the user. Again that certificate was admitted to show that fact but not as proof that Gannon was actually the driver. Again no dates were provided as to when these events occurred nor was a copy of the declaration given by Mikaela Simpson provided.

25. Exhibit 12 was a certificate showing that the above infringement notice was withdrawn against Mikaela Simpson.

The third infringement notice.

26. Exhibit 9 was another certificate (similar to above example) which purported to establish that Daniel Gannon was issued with an infringement notice and that he provided a declaration that another person, Mikaela Kate Simpson, was the user. Again that was admitted to show that fact but not as proof that Simpson was actually the driver for the same reasons as referred to elsewhere. No dates were provided as to when these events occurred.

27. Exhibit 13 was a certificate showing that the above infringement notice was withdrawn against Daniel Gannon.

The fourth infringement notice.

28. Exhibit 14 was a certificate which purported to establish that Mikaela Simpson was sent an infringement notice by mail. Attached to the certificate was a statutory declaration by Gannon stating that Mikaela Kate Simpson was the person in charge of the vehicle at the relevant time. This declaration was relevant to show that she had been served with a copy of the certificate thus satisfying the preconditions to a valid prosecution. It was not admitted as proof of its contents.

29. As noted above section 19(4) of the State Penalties Enforcement Act 1999 provides that such a declaration might be evidence that Mikaela Simpson was the user however it does not do so in this case because it was not a “known user declaration” as defined. Even if it otherwise fell within the definition of a known user declaration (which in my view it did not because the actual statutory declaration, which was only a part of the whole form, did not attest to the fact he was not in charge as is required) such a declaration can only be provided by an owner. At no stage was it claimed or proved that Daniel Gannon was an owner.

30. Notwithstanding that position it might be suggested that s 19(2) of the State Penalties Enforcement Act 1999 deems Daniel Gannon to be an owner by virtue of the chain of declarations. However the various declarations themselves were not produced and the relevant certificates do not by themselves establish a “known user declaration” as defined, had been provided. In those circumstances s 19(2) cannot be relied upon to support this fiction.

31.  Mikaela Simpson might be deemed to be the person in charge if the provisions of section 113 of the Transport Operations (Road Use Management) Act 1995 (see below) apply and she falls within the definition of person in charge. It is to be remembered that the prosecution was based on an infringement notice which relied on the declaration of Gannon, not City Motor Auctions Group Pty Ltd. Gannon was not a responsible operator as defined nor was he the registered operator therefore subsections (a) and (b) of that definition do not apply. It is apparent the vehicle was registered and therefore subsection (c) does not apply. Accordingly Simpson is not deemed to be the person in charge by operation of that definition.

32. If the declaration by Gannon was to be relied upon as proof that Simpson was the driver there would need to be some statutory provision allowing for that. There was not. Otherwise he would have to be called to give oral evidence to that effect. He was not.

33. Simpson was not deemed by any legislative provision to be the person in charge or the user. The prosecution did not call any evidence on that issue and none of the evidence produced went to establish that she was actually the person in charge or the actual driver. As such there was no evidence upon which she could be convicted and the charge was dismissed.

State Penalties Enforcement Act 1999

Division 2 Liability for infringement notice offences involving vehicles

17 Liability for infringement notice offences involving vehicles

1. (1)
   If—

1. (a)
   an infringement notice offence involving a vehicle happens; and

1. (b)
   an infringement notice for the offence is served on the person who is the owner of the vehicle at the time of the offence;

the owner is taken to have committed the offence 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—

1. (a)
   the owner and the actual offender can not both be punished for the offence; and

1. (b)
   if a fine is paid or a penalty is imposed on one of them for the offence, a further penalty must not be imposed on or recovered from the other person for the offence.

1. (3)
   However, the owner must not be taken under subsection (1) to have committed the offence if, within 28 days after the date of an infringement notice or service of a summons for the offence, the owner makes and gives to the administering authority an illegal user declaration, a known or unknown user declaration or a sold vehicle declaration for the vehicle for the offence.

1. (4)
   The declaration must be made by—

1. (a)
   if the owner is an individual—the owner; or

1. (b)
   if the owner is a corporation—an executive officer of the corporation or the responsible operator.

1. (5)
   A declaration by an executive officer of a corporation must be under the common seal of the corporation.

The dictionary in the Act provides the following definitions;

known user declaration, for an offence involving a vehicle, means a statutory declaration stating—

1. (a)
   if the owner is—

1. (i)
   an individual—the owner was not in charge of the vehicle at the relevant time; or

1. (ii)
   a corporation—the vehicle was not being used for the corporation at the relevant time; and

1. (b)
   the name and address of the person who was in charge of the vehicle at the relevant time.

owner, of a vehicle, includes the person in whose name the vehicle is registered under a registration Act.

19 Effect of known user declaration

1. (1)
   This section applies if—

1. (a)
   an infringement notice offence involving a vehicle happens; and

1. (b)
   an  infringement notice for the offence is served on the person who is the owner of the vehicle at the relevant time; and

1. (c)
   the person makes and gives to the administering authority a known user declaration for the vehicle.

1. (2)
   This section and section 17 apply as if the person named in the declaration as the person in charge of the vehicle at the relevant time (the user) were the owner of the vehicle at that time.

1. (3)
   A proceeding for the offence may be started against the user only if a copy of the declaration has been served on the user.

1. (4)
   In a proceeding for the offence against the user, the declaration is evidence that the user was in charge of the vehicle at the relevant time.

1. (5)
   In a proceeding for the offence against the owner mentioned in subsection (1)(b), a court must not find the owner guilty of the offence if it is satisfied, whether on the statements contained in the declaration or otherwise, the owner was not in charge of the vehicle at the relevant time.

157 Evidentiary provisions

1. (1)
   This section applies to a proceeding under this or another Act.

1. (2)
   A certificate purporting to be signed by or for an administering authority and stating any of the following matters is evidence of the matter —

1. (a)
   a stated infringement notice was served in a stated way on a stated person for a stated infringement notice offence;

…….

1. (e)
   an infringement notice has not been withdrawn or was withdrawn on a stated date;

……..

1. (j)
   a stated person has or has not given the administering authority an illegal user declaration, known or unknown user declaration or sold vehicle declaration for an offence stated in an infringement notice;

……..

……...

Transport Operations (Road Use Management) Act 1995

113 Definitions for div 2

In this division—

…

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

1. (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

1. (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

1. (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

1. (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

1. (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

1. (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

1. (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.

responsible operator means a person nominated as responsible operator under section 170 or a person corresponding to a responsible operator under a corresponding transport law.

170 Nomination of responsible operator

1. (1)
   If a registered operator has previously claimed the registered operator was not the driver and has failed to notify the name and address of the driver of a vehicle that was involved in a camera-detected offence, the chief executive may give written notice requesting the registered operator to nominate 1 responsible operator for each vehicle registered in the registered operator’s name whether jointly or otherwise.

1. (2)
   If the registered operator wants to nominate the responsible operator, the registered operator must give written notice containing the prescribed particulars to the chief executive within 28 days of receipt of the notice from the chief executive.

1. (3)
   If a person does not nominate a responsible operator within 28 days, or nominates a person who is ineligible to be a responsible operator, the chief executive may nominate an existing registered operator as the responsible operator.

1. (4)
   A responsible operator must be—

1. (a)
   an individual who is—

1. (i)
   17 years or more; and

1. (ii)
   the holder of a licence issued under a law of a State to drive a vehicle on a road; or

1. (b)
   a corporation that is—

1. (i)
   a company registered under the Corporations Act; or

1. (ii)
   incorporated by or under an Act; or

1. (iii)
   incorporated for a public purpose by an Act of this or another State or the Commonwealth; or

1. (c)
   this or another State or the Commonwealth.

1. (5)
   Except for a nomination by the chief executive, the nomination must be accompanied by the written consent of the responsible operator.

1. (6)
   If a licence is not required for the normal operation of the type of vehicle being registered and it is not designed to be towed, the responsible operator does not have to be the holder of a licence for the vehicle.

1. (7)
   A person must not nominate a person as a responsible operator knowing that—

1. (a)
   the nominated person is ineligible to be a responsible operator; or

1. (b)
   any particulars about the nominated person are inaccurate.

Maximum penalty—40 penalty units.

1. (8)
   A person who has been requested to nominate a responsible operator—

1. (a)
   may subsequently apply for, renew or transfer the registration of a vehicle only if a responsible operator has been nominated for the vehicle; and

1. (b)
   must ensure there is a responsible operator during the registration of the vehicle.

1. (9)
   If for any reason there ceases to be a responsible operator for a vehicle, the chief executive may nominate a responsible operator.

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 or chief executive 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 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.

1. (3A)
   ….

1. (4)
   A defence under subsection (3) or (3A) 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)
   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 given 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. (7)
   Subsection (6) does not apply if the person is able to prove that at the time the offence happened the vehicle—

1. (a)
   was stolen or illegally taken; or

1. (b)
   had already been sold or otherwise disposed of.

1. (8)
   Nothing in this section stops a person notifying the commissioner or chief executive, in a statutory declaration, that the person was the driver of the vehicle involved in a camera-detected offence.

……….