Berry v Commissioner of Police

Court of Appeal (Holmes and Morrison JJA and North J)

23 September 2014

This recent decision of the Court of Appeal outlines the requirements of “reasonable control” as it pertains to liability arising under s 114 of the Transport Operations (Road Use Management) Act 1995 (“the Act”).  Section 114(1) provides that where an “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 . . . at the time the offence happened even though the actual offender may have been someone else”.  A person may successfully defend this charge, however, where they are able to prove, inter alia that they were not the driver and they have 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 (s 114(3)(b)(ii)).  The person must also notify the commissioner of the matters in s 114(3)(b)(ii) and show that at the time of the incident they were exercising reasonable control over the vehicle’s use and had reasonable way of finding out the name and address of the person in charge of the vehicle at any given time and that after the event they had taken proper steps to find out the identity of the driver.

This appeal arose out the appellant’s conviction for a speeding offence in Brisbane involving a vehicle registered to her.  At the time of the offence the appellant was interstate, and the relevant vehicle was stored, locked, in her garage and the keys were hidden in her house.  Whilst she was away, some of her family were staying in her house, however they had not asked, nor been given permission, to drive the vehicle.  [5]–[13].  Following the commission of the offence the appellant tried to ascertain who had been driving the vehicle – she questioned those with access to her house whether they had used the car or knew who had – though she was unsuccessful in obtaining this information.  [14]–[22].  Her nephew was subsequently, charged with other offences relating to using the vehicle during this period, though he was ultimately found not guilty through want of adequate identification.  [25]. Following her conviction in the Magistrates’ Court, the appellant appealed to the District Court which upheld the conviction on the basis, inter alia, that her statutory declaration was deficient, [34], and further that even were it sufficient the defence was not established because the appellant had failed to exercise “reasonable control as against her relatives holding house keys and especially against those who were housesitting”.  [35]. It is this decision that was the subject of the present appeal. 

In undertaking this review, the Court initially addressed the issue of whether, for the purposes of s 114(4), the appellant’s statutory declaration was deficient given that it “made no reference whatsoever to any system in place for identifying the driver, nor did it disclose the reasonable exercise of control of the use of the car”.  [34]. Upon reviewing the relevant statutory provisions the Court concluded that as the legislation merely required that the statutory declaration notify the commissioner “about the matters specified,” the appellant was not required to “set out the entirety of the evidence that might be called to prove [these] matters,” [54], and consequently held that the primary judge had erred and that leave to appeal ought be granted.  See [46]–[60].  The Court then turned to the critical question of whether the evidence provided established that the appellant had exercised “reasonable control” over her vehicle’s use at the time of the offence.  [61]. 

The term “reasonable” implies a standard that differs depending upon the specific circumstances of the situation.  [62]. Particularly significant, in this case, was the fact that the vehicle in question was a private vehicle used for private purposes, [64], [73].  Given these circumstances and the evidence led by the appellant (at trial) that the vehicle was locked, the keys hidden and no one was granted permission to use the vehicle the Court concluded that the appellant had been exercising reasonable control.  [64]–[65].  Further, the Court also considered that given the private nature of the vehicle it was unnecessary for the appellant to have any “positive system” in place for determining the driver of the vehicle, [73], see also [66]–[74], and further, that her questioning of the potential drivers, by phone, after-the-fact was sufficient to satisfy the final element of the s 114(6) defence.  [75], [78]–[80].  Given this conclusion, the Court allowed the appeal.