Embelton v Scrivener [2017] QDC 5

DISTRICT COURT OF QUEENSLAND CITATION: Embelton v Scrivener [2017] QDC 5 PARTIES: STEPHEN JOHN EMBELTON (appellant) v CRAIG DOUGLAS SCRIVENER (respondent) FILE NO/S: BD 2577/16 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Holland Park DELIVERED ON: 3 February 2017 DELIVERED AT: Mackay HEARING DATE: 20 January 2017 JUDGE: Smith DCJA ORDER: 1. The appeal is allowed and the order made in this matter is set aside. 2. The matter is remitted to the Magistrate’s Court at Brisbane for rehearing. 3. I will hear the parties on the question of costs. CATCHWORDS: TRAFFIC LAW- OFFENCES- Evidence- Driving in breach of specific speed limits- Proof of offence- whether delegation validly delegated power to certify exhibits Acts Interpretation Act 1954 (Q) ss 14A, 27A Justices Act 1886 (Q) s 222 State Penalties Enforcement Act 1999 (Q) ss 157, 160, schedule 2 State Penalties Enforcement Regulation 2014 (Q) reg 5 schedule 1. Transport Operations (Road Use Management- Road Rules) (Q) s 20 Hammercall Pty Ltd v Minister for Transport & Main Roads & Ors [2015] QSC 114 Kosteska v Magistrate Manthey and Anor [2013] QCA 105 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Ashby [2010] 25 VR 107 Teelow v Commissioner of Police [2009] 2 Qd R 489 -- 1 of 9 -- 2 COUNSEL: Mr T Corsbie for the appellant No appearance for the respondent SOLICITORS: Public Safety Business Agency for the appellant No appearance for the respondent Introduction [1] This is an appeal against the decision of the Magistrates Court at Holland Park on 2 June 2016 to dismiss a charge of speeding against the respondent. [2] The appeal is pursuant to s 222 of the Justices Act 1886 (Q). In order for the appellant to succeed he must show that error occurred below.1 [3] The basis of the dismissal was the magistrate found there was a defect in a delegation tendered. [4] The appellant alleges this was an error. There are also grounds that the magistrate erred in denying the prosecution procedural fairness and erred by entering into the “arena”. [5] For the reasons which follow I find it unnecessary to consider the second 2 grounds. Background [6] The respondent’s vehicle was alleged to have been detected travelling at 115km per hour on the Gateway Motorway at Runcorn, in excess of the 100km per hour speed limit on 28 August 2015. The detection was by a photographic device.2 [7] A complaint was sworn on 14 January 2016, which was served on the respondent. The matter proceeded to trial on 2 June 2016. [8] At the trial, in order to prove the charge, the prosecutor tendered three photographs purporting to show the vehicle travelling at 115km per hour in the relevant speed zone. Certificates were signed by Stephen Embelton, Senior Sergeant Traffic Camera Office, and importantly, an instrument of delegation (Exhibit 7) signed by the Chief Executive of the Department of Transport and Main Roads was tendered which purported to delegate proof of relevant matters to a Senior Sergeant Traffic Camera Office. Decision [9] The magistrate found the respondent not guilty. [10] The magistrate in this case raised the following criticisms concerning the instrument of delegation: 1 Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4] per Muir JA. 2 The photographs are Exhibit 1 below. -- 2 of 9 -- 3 (a) The instrument of delegation purported to be comprised of the delegation in a schedule, yet it required the use of a key to be given meaning; 3 (b) The key did not form part of the delegation or schedule, and was therefore extraneous and not a component of the delegation;4 (c) The schedule was not titled as such;5 (d) The schedule was not signed on each page or on the final page;6 (e) That column three contained limitations where limitations were to be contained in column four;7 (f) The delegation did not set out the manner in which the key was to be used;8 (g) The description of the “powers” in column two were not identical to the powers referred to, and that the schedule referred to the legislation for a comprehensive description of the powers.9 [11] In summary, the magistrate found that the delegation was confusing and indicated she considered the delegation must be internally consistent, clear and unambiguous to achieve legal purpose. [12] The magistrate in this case specifically invited a prosecution appeal so that her construction could be considered.10 Submissions [13] The appellant submits that the magistrate erred in her conclusions as to the instrument of delegation. [14] The respondent did not appear at the hearing of the appeal despite being given notice it was on. He filed irrelevant material in the court not germane to the issues in dispute and which have been rejected by other courts previously.11 Relevant Law [15] The offence provision is contained in the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Q). Regulation 20 provides: “20 Obeying the speed limit 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.” [16] Section 157 of the State Penalties Enforcement Act 1999 (Q) (“SPEA”) applies to proceedings under the TORUM regulation. Section 157(2) provides: 3 Transcript of decision, p 3 L 44. 4 Transcript of decision, p 3 L 43. 5 Transcript of decision, p 3 L 25. 6 Transcript of decision, p 3 L 30. 7 Transcript of decision, p 3 L 45. 8 Transcript of decision, p 4 L 5. 9 Transcript of decision, p 4 L 9. 10 Transcript of decision, p 5 L 23. 11 Kosteska v Magistrate Manthey and Anor [2013] QCA 105. -- 3 of 9 -- 4 “(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— … (f) an offence stated in an infringement notice involved a stated vehicle… (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.” [17] An administering authority is defined in schedule 2 of the SPEA as: “administering authority, for an infringement notice or infringement notice offence, means the entity prescribed under a regulation as the administering authority for the notice or offence” [18] The administering authority for the offence of speeding is the Department in which the provision is administered.12 In this case the Road Rules are administered by the Department of Transport and Main Roads. [19] Section 160 of the SPEA provides: “160 Delegation by administering authority The chief executive officer of an administering authority may delegate the administering authority’s powers under this Act to an appropriately qualified person.” [20] As to the signature on the instrument of delegation s 27A of the Acts Interpretation Act 1954 (Q) provides: 27A Delegation of functions or powers (1) If an Act authorises a person or body to delegate a function or power, the person or body may, in accordance with the Act and any other applicable law, delegate the function or power to— (a) a person or body by name; or (b) a specified officer, or the holder of a specified office, by reference to the title of the office concerned. (2) The delegation may be— (a) general or limited; and (b) made from time to time; and (c) revoked, wholly or partly, by the delegator. (3) The delegation, or a revocation of the delegation, must be in, or evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for the purpose. (3A) If the delegator is a body, the delegation may be made or revoked by a resolution of the body. (3B) All conditions and preliminary steps required for the exercise of a delegation are presumed to have been satisfied and performed unless the contrary is established. (3C) Laws apply to the delegate, and to other persons in relationship to the delegate, in the performance of the delegated function or in the exercise of a delegated power as if the delegate were the delegator. 12 State Penalties Enforcement Regulation 2014 (Q) reg 5, schedule 1. -- 4 of 9 -- 5 (3D) Anything done by or in relation to the delegate in relation to the delegation is taken to have been done by or in relation to the delegator. * Example— * Under an Act an evidentiary certificate purporting to be signed by an office holder is evidence of the content in any proceeding (the facilitation provision). The Act confers a general power of delegation on the office holder. The office holder uses the power to delegate the function of issuing the certificate to someone else. Under subsections (3C) and (3D) (and (6) and (7)), the facilitation provision is taken to provide for the certificate purporting to be signed by the delegate as having been signed by the delegator. (4) A delegated function or power may be exercised only in accordance with any conditions to which the delegation is subject. (5) The delegate may, in the performance of a delegated function or in the exercise of a delegated power, do anything that is incidental to the delegated function or power. (6) A delegated function or power that purports to have been performed or exercised by the delegate is taken to have been properly performed or exercised by the delegate unless the contrary is proved. (7) A delegated function or power that is properly performed or exercised by the delegate is taken to have been performed or exercised by the delegator. (8) If, when performed or exercised by the delegator, a function or power is dependent on the delegator's opinion, belief or state of mind, then, when performed or exercised by the delegate, the function or power is dependent on the delegate's opinion, belief or state of mind. (8A) If— (a) the delegator is a specified officer or the holder of a specified office; and (b) the person who was the specified officer or holder of the specified office when the delegation was made ceases to be the officer or holder of the office; then— (c) the delegation continues in force; and (d) the person for the time being occupying or acting in the office concerned is taken to be the delegator for the purposes of this section. (8B) If— (a) the delegator is a body; and (b) there is a change in the membership of the body; then— (c) the delegation continues in force; and (d) the body as constituted for the time being is taken to be the delegator for the purposes of this section. (9) If a function or power is delegated to a specified officer or the holder of a specified office— (a) the delegation does not cease to have effect merely because the person who was the specified officer or the holder of the -- 5 of 9 -- 6 specified office when the function or power was delegated ceases to be the officer or the holder of the office; and (b) the function or power may be performed or exercised by the person for the time being occupying or acting in the office concerned. (10) A function or power that has been delegated may, despite the delegation, be performed or exercised by the delegator. (10A) The delegation of a function or power does not relieve the delegator of the delegator's obligation to ensure that the function or power is properly performed or exercised. (11) Subject to subsection (12), this section applies to a subdelegation of a function or power in the same way as it applies to a delegation of a function or power. (12) If an Act authorises the delegation of a function or power, the function or power may be subdelegated only if the Act expressly authorises the function or power to be subdelegated. (13) Writing purporting to be, or to contain, a delegation, or the revocation of a delegation, is evidence of the delegation or revocation. (14) A certificate signed by the delegator (or, if the delegator is a body, by a person authorised by the body for the purpose) stating anything in relation to a delegation is evidence of the thing. (15) A document purporting to be a certificate mentioned in subsection (14) is taken to be the certificate, and to have been properly given, unless the contrary is established. (15A) Authority to delegate a person's or body's powers includes authority to delegate doing an act or making a decision for performing a function of the person or body. (16) In this section— power includes doing an act or making a decision for the purpose of performing a function. Disposition [21] In my view, the instrument of delegation (Exhibit 7) authorised a Senior Sergeant of the Traffic Camera Office to issue a certificate that the infringement notice involved the relevant vehicle (Exhibit 6) and issue a certificate that the respondent, having been served with a copy of the infringement notice, had not provided the Commissioner of Police with a statutory declaration as to another person being in charge of the vehicle within the statutory timeframe (Exhibit 11). The certificate was evidence of those matters.13 [22] In order for a delegation to be valid all that is required is substantial compliance.14 [23] Furthermore, there is a statutory presumption that the delegation is operative. Section 27A(13) of the Acts Interpretation Act 1954 (Q) provides: “Writing purporting to be, or to contain, a delegation, or the revocation of a delegation, is evidence of the delegation or revocation.” [24] In Project Blue Sky Inc v Australian Broadcasting Authority15 it was said: 13 Section 157(2) of the State Penalties Enforcement Act 1999 (Q). 14 Hammercall Pty Ltd v Minister for Transport & Main Roads & Ors [2015] QSC 114 at [25]. 15 (1998) 194 CLR 355 at [69]-[71]. -- 6 of 9 -- 7 Conflicting statutory provisions should be reconciled so far as is Possible The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (45). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" (46). In Commissioner for Railways (NSW) v Agalianos (47), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed (48). A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals (49). Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions (50). Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other" (51). Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision (52). In The Commonwealth v Baume (53) Griffith CJ cited R v Berchet (54) to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent"(citations omitted). [25] The principles expressed by Project Blue Sky were applied to the interpretation of delegations in R v Ashby.16 I apply these principles when considering the delegation in this case. [26] Also one should bear in mind that the construction that would promote the purposes or object underlying the Act is to be preferred to any other interpretation.17 [27] When one turns to the delegation itself it consists of four pages, the delegation itself and a three page schedule. At para 6 it is said: “6. This instrument of delegation is comprised of this delegation and a schedule comprising three pages. No other written material forms part of the instrument.” 16 [2010] 25 VR 107 at [32]. 17 Section 14A of the Acts Interpretation Act 1954 (Q). -- 7 of 9 -- 8 [28] The document then consists of three pages comprising of a one page “key” and two pages of a four column table. All three pages note at the bottom of the page to be the schedule referred to in the delegation at point six. [29] The delegation is to be read such that the Chief Executive delegates the power in column one of the schedule to the persons who hold the offices in column three, subject to the limitations in column four. Column two is provided as short description of the powers delegated by column one. [30] The relevant power on this matter is the issuance of an evidentiary certificate under s 157 of the State Penalties and Enforcement Act 1999 (Q). This power is found in column one on p 3 of the schedule. The relevant entry for column three refers to group three. To interpret “group three,” regard must be had to the “key”. This key sets out the relevant offices for each group. Group three includes a Senior Sergeant, Traffic Camera Office (QPS). The delegation therefore authorised a person holding the office of Senior Sergeant, Traffic Camera Office as specified in “group three” to exercise the power of the Chief Executive of the administering authority, being the Chief Executive of the Department of Transport and Main Roads, in respect of the issuance of evidentiary certificates under s 157 of the State Penalties Enforcement Act 1999 (Q). [31] Senior Sergeant Embelton is a Senior Sergeant of the Queensland Police Service and is stationed at the Traffic Camera Office. I consider he had sufficient authority in those circumstances. [32] As to the magistrate’s criticism that the use of a “key” was required to give meaning, in my view, it cannot be presumed that the “key” is not a component of the schedules. The key is an internal component of the schedule and the usage of such a key is within drafting convention and uncontroversial. That a “schedule” may include an interpretive key is uncontroversial. There is no legislative requirement that a schedule be comprised of only column entries or preventing the use of a key. Keys can even be used in legislation to explain the use of abbreviations.18 [33] In my view, the magistrate erred in considering the delegation did not refer to a key. The “schedule” included the key as an internal component. Indeed, the key at the bottom referred to “this is page 1 of 3 of the schedule referred to in the instrument of delegation signed by the Director General, Neil Scales on 2 February 2015.” [34] Also, even though the schedule was not titled at the top of the page it was at the bottom. There is no legislative requirement that the title of a document be placed at the top of a page. I do not consider the magistrate correct in construing the title was merely a “footnote”. In my view, the document was clearly labelled and there was no legal justification in finding it was not a “schedule” for the reason given. [35] There was no legislative requirement either for the schedule to be signed on every page or even on the final page. The relevant legal requirement was it be signed in writing.19 18 See, for example, Transport Operations (Road Use Management Act) 1995 p 441, State Penalties Enforcement Act 1999 p 173, State Penalties Enforcement Regulation 2014, p 352, Acts Interpretation Act 1954 p 93, Justices Act 1886 p 183, Oaths Act 1867 p 25, Evidence Act 1977 p 177. 19 Acts Interpretation Act 1954 (Q) s 27A(3). -- 8 of 9 -- 9 [36] I do not consider there is a valid criticism that column three contained limitations when the limitations were meant to be contained in column four. Column four dealt with delegated power and column three, limitation of the “offices.” The schedule clearly indicated column four was a limitation on powers, whilst column three contained an additional limitation on those offices which were subject to those limitation powers. In my view, there was no inconsistency between the delegation and the schedule. [37] I also do not think there was any valid criticism that column three inconsistently referred to both groups in specific offices. The delegation indicates that the powers were delegated “to the persons who hold the offices specified in column three.” The table uses both groupings and, at times, citations of individual offices. I do not think it impermissible to use such characterisations and their combined use is not inconsistent or internally contradictory. The delegation is capable of rational construction. [38] I do not think there is any valid criticism that the delegation has not set out the manner in which the key is to be used. The required use of the key to aid in the interpretation of the categorisations was clear on the face of the document. Were the categorisations not undertaken in the key, the schedule would extend for many pages with unnecessary repetition. The manner in which the key is used is such a widely understood convention that it did not require specific repetition. There is no legislative prohibition in using a key in that manner. [39] I do not consider the description of the “powers” in column two to be legally defective. The delegation delegated the powers specified in column one of the schedule to the relevant offices. Column one of the schedule referred to the relevant sections of the State Penalties Enforcement Act 1999. The delegation itself further indicated that “the description of powers provided in column two does not limit the scope of the powers delegated in column one of the schedule.” The schedule additionally contained a footnote referring to this position. It was therefore made clear that column two was merely a “description” to assist the reader. That the schedule indicated a description of powers in column two is entirely consistent with the proposition that each column two description had been included to assist in a quick reckoning of the schedule. [40] The delegation of powers here was permitted by s 160 of the State Penalties Enforcement Act 1999 (Q) in compliance with s 27A of the Acts Interpretation Act 1954 (Q). There was substantial compliance with the legislation here. In my view, the document provided a clear unambiguous means of identifying which offices were empowered to exercise delegated power sufficient to achieve the purposes set out in s 160. Conclusion [41] In the circumstances I find the magistrate erred in concluding that the delegation had no legal effect. [42] My formal orders then are: 1. The appeal is allowed and the order made in this matter is set aside. 2. The matter is remitted to the Magistrate’s Court at Brisbane for rehearing. 3. I will hear the parties on the question of costs. -- 9 of 9 --