Queensland Police Service v Morris
[2016] QMC 5
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- Unreported Judgment
- Appeal Determined (QCA)
- Queensland Police Service v Morris[2016] QMC 5
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Queensland Police Service v Morris[2016] QMC 5
Queensland Police Service v Morris[2016] QMC 5
MAGISTRATES COURTS OF QUEENSLAND
CITATION: | Queensland Police Service v Morris [2016] QMC 5 |
PARTIES: | Queensland Police Service (Complainant) v Anthony John Hunter Morris (Defendant) |
FILE NO/S: | MAG-00178282/14(0) |
DIVISION: | Magistrates Courts |
PROCEEDING: | Sentence |
ORIGINATING COURT: | Brisbane Magistrates Court |
DELIVERED ON: | 26 February 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 26 February 2016 |
MAGISTRATE: | Chief Magistrate Judge Rinaudo |
ORDER: | Finding of Guilty – Obeying the speed limit |
CATCHWORDS: | TRAFFIC LAW – SENTENCE – traffic – regulations – obeying the speed limit – application of s 23 Criminal Code 1899 – defences – whether s 23 Criminal Code 1899 provides a defence Legislation Transport Operations (Road Use Management) Act 1995 (Qld), s 114 Transport Operations (Road Use Management – Road Rules Regulation 2009 (Qld), s 20 Criminal Code 1899 (Qld), s 23 Cases Attorney General (Qld) v Morris and Anor [2015] QCA 112 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Jiminez v R (1992) 173 CLR 572 |
COUNSEL: | The defendant appeared on his own behalf |
SOLICITORS: | Mr G Elmore on behalf of the Queensland Police Service The defendant appeared on his own behalf |
History
- [1]Anthony John Hunter Morris QC is charged by complaint sworn and summons that on 12 May 2014 he, being the driver of a vehicle namely a motor car, drove at a speed over the speed limit namely 50 kilometres per hour (57 kilometres per hour) applying to the road for the length of the road namely Carmody Road St Lucia. On 30 January 2015. The charge was referred by agreement to the District Court on a case stated. The case stated was removed to the Court of Appeal and heard and determined by the Court of Appeal with a hearing on 3 June 2015 and with a decision delivered by the court on 23 June 2015[1].
- [2]It is common ground that Mr Morris was not the driver of the vehicle at the time the vehicle was detected speeding by a photographic detection device but is the registered owner of the vehicle.
- [3]The question for determination in the case stated was “is s 114 of the Transport Operation (Road Use Management) Act 1995 (Qld) invalid on the ground that it infringes the principle identified in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51[2], the answer to which question was, “No”.”
- [4]Section 114 is enacted in the following terms:
- (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.
- (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.
- (3)It is a defence to a camera-detected offence, other than an unregistered or uninsured offence, for a person to prove that—
- (a)the person was not the driver of the vehicle at the time the offence happened; and
- (b)the person—
- (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
- (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.
- (3A)It is a defence to an unregistered or uninsured offence for a person to prove that—
- (a)when the offence happened, the vehicle—
- (i)was stolen or illegally taken; or
- (ii)had been sold or otherwise disposed of; and
- (b)if the vehicle was stolen or illegally taken—the person has notified the chief executive of that fact and either—
- (i)the name and address of the person who stole or took the vehicle; or
- (ii)that the person did not know and could not, with reasonable diligence, have ascertained the name and address of the person who stole or took the vehicle; and
- (c)if the vehicle had been sold or otherwise disposed of—the person has notified the chief executive of that fact and of the following information—
- (i)the name and address of the person to whom the vehicle was sold or disposed of;
- (ii)the date and, if relevant, time of the sale or disposal.
- (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.
- (5)The required time is 28 days after whichever of the following is first given to the person—
- (a)a written notice from the commissioner or chief executive alleging a camera-detected offence;
- (b)an infringement notice under the State Penalties Enforcement Act 1999.
- (6)For subsection (3)(b)(ii) a person must prove that—
- (a)at the time the offence happened, the person—
- (i)exercised reasonable control over the vehicle’s use; and (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—
- (A)the number of drivers; and
- (B)the amount and frequency of use; and
- (C)whether the vehicle was driven for business or private use; and
- (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.
- (7)Subsection (6) does not apply if the person is able to prove that at the time the offence happened the vehicle—
- (a)was stolen or illegally taken; or
- (b)had already been sold or otherwise disposed of.
- (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.
- (9)A notification purporting to have been given for a body corporate by a director, manager or secretary of the body corporate is to be taken to have been given by the body corporate.
- (10)In this section—
photographic detection device includes a photographic detection device that is linked to an information technology system described in section 113A(2).
- [5]Upon that decision being made Mr Morris maintained his plea of not guilty and made submissions to the court on 29 January 2016 that he did not consider that he was guilty of the offence, because he had a defence to the charge under s 23 of the Criminal Code 1899. Section 23 states:
- (1)subject to the expressed provision of this code relating to negligent acts and omissions, a person is not criminally responsible for the –
- (a)an act or an omission that occurs independently of the exercise of the persons will; or
- (b)an event –
- (i)the person does not intend or foresee as a possible consequence; and
- (ii)an ordinary person would not reasonably foresee as a possible consequence.”
- [6]Mr Morris argues that it is clear from the decision of Attorney-General (Qld) v Morris and Anor[3] that there is only one offence and that is the offence that “the prescribed offence that has happened and has been detected by a photographic detection device”[4] and since the offence occurred without his knowledge and without any will or intention on his part to commit the offence, the defence is available to him.
- [7]Mr Morris relied principally on the decision of Jiminez v R [5]. Mr Morris argued that if the defence was available to a dangerous driver in the circumstances of that case where it was held that, “To constitute culpable driving the relevant driver must have been voluntary. Driving whilst asleep is not a voluntary act”, than it must be available to him in this case. Of course there are many examples of the proper application of the defence being available to defendants, a number of which were succinctly set out in the written submission of the prosecution.
- [8]I do not propose to go through that list now, as the principle question for me to determine is whether the defence is available in the current circumstances.
- [9]As I have said it is clear that the defendant was not driving the vehicle and that the offence occurred without his knowledge and therefore it could not be said he was not the person actually speeding or that he was aware of the speeding.
- [10]In the ordinary course of events the defence might well be available to him. However I agree with the conclusion as set out by prosecution that the legislator has determined that this class of offence is so prevalent and so dangerous that the deterrence element is achieved by holding the person in charge of the vehicle liable for punishment. Even though in circumstances where the actual driver is not known and in circumstances where the owner did not actually commit the offence.
- [11]The line of authorities where a defence of this type has been successful, is clearly distinguishable from the present circumstances where the words of the Act and the intention of the Legislature are plain.
- [12]This becomes clear when one looks at Attorney-General (Qld) v Morris and Anor[6] where the Court of Appeal (Holmes, Gotterson and Morrison JJA) remarked:
“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 speeding limit. For the person in charge, attribution is based upon the prescribed offence having happened, it is having been detective by a photographic detection device, and the status of the individual as the person in charge of the vehicle. Thus, where the person in charge is not the offending driver, criminal responsibility for the offending will be attributed to the two individuals. Section 114 sub section 2 affirms that both are criminally liable for the offence but has affect that only one of them maybe punished for it.”[7]
- [13]For completeness I would also note the following comments of the Court of Appeal in that judgment:
“It remains to note that the competency of the Queensland Parliament to enact deeming legislation in the form in which s 114 is enacted, was affirmed by this Court in Saunders v Bowman, In that case, Keane JA (with whom de Jersey CJ and Douglas J agreed) remarked: “…Mr Saunders does not seem to agree with the legislature’s evident concern to ensure that the owners of motor vehicles used to commit offences are held responsible for their use if the person directly responsible for the offence cannot be made subject to the law’s sanctions. His particular concern seems to be that s 114 (a) deems a person, who was not driving at the tie an offence as committed, to have committed the offence. But there can be no doubt that Parliament has the power to legislate in this way Mr Saunders’ complaint is really that it is inappropriate for Parliament to do so.”[8]
- [14]The legislation makes it plain, if you are the owner and not the driver then provide the declaration otherwise the owner is liable.
- [15]That being the case, I am satisfied that the provisions of section 23 of the Code are not available to the defendant in this case and he must therefore be found guilty of the charge subject to my being satisfied of the other usual evidentiary elements. Mr Morris concedes all formal evidentiary elements and accordingly I formally find the defendant guilty of the offence beyond reasonable doubt.
- [16]Defendant convicted and fined $153.00 cost of court in the sum of $87.20 total $240.00, refer to SPER.
- [17]Having regard to the nature of the offence the defendants standing in the community and lack of any relevant history I am satisfied that I exercise my discretion and not record a conviction. Prosecution did not want to be heard on this issue.
Judge O Rinaudo
Chief Magistrate