Da Costa v Commissioner of Police [2016] QDC 38

DISTRICT COURT OF QUEENSLAND CITATION: Da Costa v Commissioner of Police [2016] QDC 38 PARTIES: DAVID DA COSTA (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: D4848/2014 DIVISION: Appeal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court Cleveland DELIVERED ON: 4 March 2015 DELIVERED AT: Brisbane HEARING DATE: 24 July 2015 with further written submissions received until 17 February 2016 JUDGE: Rackemann DCJ ORDER: The time for filing the notice of appeal is extended to 9 December 2014. The appeal is allowed, the conviction is set aside and a verdict of not guilty is entered. CATCHWORDS: CRIMINAL LAW – appeal against conviction on 1 charge of exceeding a speed limit – where appellant/defendant convicted on the basis of a known user declaration despite denying he was the driver – where infringement notice process directed to the appellant/defendant had not been proved to be valid and effectual – where appellant/defendant could nonetheless be proceeded against by way of complaint and summons – where no evidence that known user declaration had been served on the appellant/defendant before the proceeding was started – effect of s 19(3) of the State Penalties Enforcement Act COUNSEL: The appellant appeared in person P Bates for the respondent SOLICITORS: Office of the Director of Public Prosecutions for the respondent -- 1 of 8 -- 2 [1] This appeal is against the appellant’s conviction, in the Magistrates Court, on one charge of speeding. The offence occurred on 24 December 2012 when a vehicle was detected by a speed camera to be travelling at 103kph in a 60kph zone. At trial, the prosecution tendered photographs and certificates to establish that the relevant vehicle was detected at the relevant time and place exceeding the speed limit. None of that was challenged at trial or on appeal. Rather, the appellant contended that he was not driving the vehicle at the time. [2] The appellant requires an extension of time within which to appeal. The notice of appeal was filed on 9 December 2014, following the Magistrate’s decision on 17 September 2014. The application for leave was put forward on the basis, in part, that the appellant is self-represented and had to seek advice from a local community legal service. The application was not actively opposed by the respondent who, instead, focused on the merits of the appeal. For the reasons which follow, there is a basis for overturning the conviction. The interests of justice favour granting an extension of time. [3] It was not necessary, in order to sustain the charge, for the prosecution to prove that the appellant was actually driving the vehicle at the time. In that regard, s 114 of the Transport Operations (Road Use Management) Act 1995 (TOR) provides, in part, as follows: “(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.” [4] A defence is provided in s 114(3) of the TOR as follows: “(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. However, s 114(4) and (5) place the following restrictions on the defence: “(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— -- 2 of 8 -- 3 (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.” [5] To establish that the appellant was the person in charge, the prosecution tendered an infringement notice which had apparently been earlier issued, pursuant to the State Penalties Enforcement Act 1999 (SPE), to the registered owner of the subject motor vehicle. The effect of service of such a notice on the owner is that the owner is taken to have committed the offence1 unless, within 28 days, the owner makes and gives to the administering authority an illegal user declaration, a known or unknown user declaration or a sold vehicle declaration.2 [6] In this case an individual, on behalf of the corporate owner, completed a statutory declaration. Section 17(4) of the SPE requires that, where the owner is a corporation, the declaration must be made by an executive officer of the corporation or the responsible operator. The declaration did not descend to swear to the qualification of the declarant to make the declaration on behalf of the corporation. The individual concerned was described at trial as the proprietor of the business, but there was no evidence placed before the learned Magistrate that the individual who purportedly made the declaration answered the description in s 17(4). No point was, however, raised about that and it is unnecessary to pause on it because, for the reasons which follow, there is another difficulty even if it is accepted that the declaration constituted a valid known user declaration for the purposes of the SPE. [7] The declaration in this case nominated the appellant as the person in charge of the vehicle at the relevant time. The effect of a known user declaration, as provided for in subsection 19(4) of the SPE, is as follows: “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.” [8] Whilst the learned magistrate found that the appellant was the “driver”, that appears to be a shorthand reference to the appellant having been found to be in charge of the relevant vehicle at the relevant time, on the evidence of the known user declaration. [9] The appellant sought to make something of the fact that the numbers dating the declaration appear to have been written over another number. In particular, the number “9” can be seen under the “0” in the number 20. The appellant thought that was important because he thought that if the declaration had been executed on 29 December “it would have lapsed the 1 year time frame to transfer the responsibility of the infringement notice”. I was not referred to any statutory provision to that effect. The respondent drew my attention to s 62(4) of the TOR, which requires proceedings to be started, relevantly, within 1 year of the offence being committed. That period would have expired on 24 December 2013. That might have been what the appellant had in mind. It may be noted that no proceedings were commenced against the appellant until after 24 December 2013, but section 60(4) of the SPE provides that if a relevant enforcement order is cancelled, the period of limitation starts on the day the order is cancelled. In this case the complaint averred that the proceeding was started within 1 year after the cancellation of an enforcement order. To the extent that 1 S 17(1) of the SPE. 2 S 17(3) of SPE. -- 3 of 8 -- 4 anything turns on the date of the statutory declaration however, an examination of the document reveals that it was, on its face, dated 20 December 2013 it should not be inferred either that that was fraudulent when executed or fraudulently changed thereafter. [10] One of the effects of the known user declaration (if valid) is that an infringement notice could have been issued to the appellant, as if he were the owner of the vehicle at the time.3 That would have given him the opportunity, pursuant to s 17(3) of the SPE, to provide a declaration, in order to avoid being deemed to have committed the offence by virtue of s 17(1). At trial the prosecution tendered a certificate4 pursuant to s 157(2)(a) of the SPE that: “Infringement notice no. 0158986278 was sent by mail to David Roy Da Costa for an offence of exceeding the speed limit.” And further declarations that that infringement notice involved a vehicle with the relevant registration number5 and that no statutory declaration was received from the appellant within 28 days thereafter.6 [11] Section 157(2) of the SPE is an evidentiary provision which provides, in part, that: (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— (a) a stated infringement notice was served in a stated way on a stated person for a stated infringement notice offence; … (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; [12] The certificates were evidence that an infringement notice of a stated number was sent by mail to the appellant for “an offence of exceeding the speed limit” involving the relevant vehicle and that no declaration was received within 28 days. The number of that infringement notice was different to the number of the enforcement notice that had earlier been sent to the registered owner. The certificates did not expressly identify that the speeding offence the subject of the infringement notice directed to the appellant was the same as that which was the subject of the proceeding or state anything other than the general nature of the infringement notice offence (ie an offence of exceeding the speed limit).7 Further, the certificate did not state the date on which the infringement notice was mailed or the address to which it was sent. [13] The appellant, in statements from the bar table, denied that he received anything at that time. Section 14(2) of the SPE permits service by post to the address in the 3 S 19(2) of the SPE. 4 Ex 7. 5 Ex 5. 6 Ex 8. 7 I note that the number of the infringement notice which was sent to the appellant was handwritten on the top right hand corner of the earlier and differently numbered infringement notice addressed to the registered owner (ex 6). The unexplained appearance of that later added reference however, proves (as distinct from suggests) nothing about the contents of the infringement notice directed to the appellant. -- 4 of 8 -- 5 known user declaration. If it is served by post to that address it would appear not to matter that the document did not actually come to the actual attention of the addressee. The certificate was evidence that an infringement notice bearing a certain number was sent by mail to the appellant, but did not descend to particularise the address to which the notice was mailed and so was not evidence of service of post to a proper address. [14] For reasons which were unexplained, the infringement notice directed to the appellant (unlike that sent to the registered owner) was not put into evidence. Accordingly, the material before the learned magistrate disclosed nothing about its contents, including whether the infringement notice, although relating to “an offence of exceeding the speed limit” committed in the relevant vehicle was the offence which occurred at the relevant time and place, and, if so, whether the infringement notice was in the approved form, was addressed to where it was authorised to be served by post, or whether it stated the mandatory things as required by s 15 of the SPE. In those circumstances the evidence fell short of establishing that the infringement notice process had been duly and effectually carried out insofar as any infringement notice directed to the appellant. [15] When this was raised with the parties, the respondent pointed out that a successful prosecution does not necessarily depend upon an infringement notice process having been carried out against the appellant. Indeed s 16 of the SPE provides, in part, as follows: “16. Effect of this part on prosecution (1) The fact that an infringement notice has been, or could be, served on a person for an offence, does not affect the starting or continuation of a proceeding against the person or anyone else in a court for the offence. (2) This part does not – (a) require the serving of an infringement notice on a person for an offence, as opposed to proceeding against the person in another way; or (b) limit or otherwise affect the penalty that may be imposed by a court for an offence.” [16] Consistently with that provision, the Court of Appeal, in Berry v The Commissioner of Police8 observed as follows, in relation to a proceeding commenced by summons for a charge of speeding: “44. In any event, as the respondent contended, any question of the invalidity of the traffic infringement notice is irrelevant. The applicant conceded that she was brought to trial by the service of a summons. The proof of the components of the charge was tendered in the form of the photographic evidence recording the vehicle, its speed, the permissible speed at the time and date. In addition a certificate was tendered showing that the vehicle was registered in the name of the applicant. Once the matter proceeded in that fashion, the traffic infringement notice was merely an historical curiosity.” 8 [2014] QCA 238. -- 5 of 8 -- 6 [17] In this case, notwithstanding any difficulty with the infringement notice directed to the appellant, a valid known user declaration would still have been evidence that the appellant was in charge of the vehicle. There was also an absence of evidence from the appellant to the contrary. The appellant made some statements from the bar table at the hearing, but did not give or call evidence. When asked by the learned Magistrate if he had any proof that he was not in the car at the relevant time, he said that he had a statement from a colleague to support him, but was not in a position to call that person to testify. He did not seek an adjournment of the hearing until a time when he could call that evidence nor did he seek to have the evidence taken in another way (e.g. by phone). The appellant sought leave to put an affidavit of that person before this Court on the appeal, but the circumstances do not justify the grant of leave to enable him to do so. [18] The appellant complained that: (i) the onus should not be upon him to prove that he was not driving the vehicle; (ii) he received nothing until he was served with the summons; (iii) he was not aware of the requirement to make a declaration within 28 days. [19] Insofar as the first of those arguments is concerned, the relevant provisions of the legislation, which have the effect complained of, are within the legislative competence of the State and are valid.9 Further, insofar as the third argument is concerned, ignorance of the law is no excuse. [20] The appellant’s second point has more substance. In response to it, the respondent pointed out that, even ignoring the infringement notice process, more than 28 days had passed between the issue of the complaint and summons on 10 April 2014 and the trial on 17 September 2014, during which no declaration had been provided. For the reasons which follow however, there remains a difficulty. [21] It has already been observed that the respondent fell short of establishing that the infringement notice procedure, as directed to the appellant, was duly and effectually carried out. The appellant could still be proceeded against, by way of complaint and summons, on the basis that he was in charge of the vehicle, on the evidence of a known user declaration. Section 19(3) of the SPE however provides as follows: “(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.” [22] By providing that a proceeding may be started ‘only if’ a copy of the declaration ‘has been’ served, the sub-section renders the prior service of the declaration on the user a condition precedent to the right to commence a proceeding. In this case, there was no evidence before the learned Magistrate that this mandatory pre-condition was satisfied. [23] The subject proceeding against the appellant for the offence was started when the complaint and summons was filed. As at that time, the only document which the evidence established had been sent to the appellant was an infringement notice (no 0158986278). It might well be that a copy of the declaration was sent to him with that notice but, as has already been observed, neither the notice nor anything which 9 See Saunders v Bowman [2008] QCA 112. -- 6 of 8 -- 7 accompanied it was placed in evidence before the Court and it had not been established that the notice was, in any event, sent to a proper address for service. It was not established that a copy of the declaration had been served on the appellant by the time the proceedings was purportedly started. [24] When this was raised with the parties, the respondent, in further submissions: (i) sought leave to adduce further evidence in the form of an affidavit of service which had not been tendered at the hearing. That affidavit included copies of the “summons pack”, being what accompanied the complaint and summons when it was served (which included a copy of the declaration); (ii) sought to rely on the appellant’s acceptance that he had the declaration prior to attending the trial; and (iii) sought to rely upon that part of the Court of Appeal’s decision in Berry v Commissioner of Police10 where it was held that the validity of a complaint and summons is unaffected by non-compliance with s 116 of the TOR. [25] Each of those responses is, however, beside the point. Section 116 of the TOR provides that a notice, complaint or summons served on a person for a camera detected offence must be accompanied by written information about certain things. As the Court of Appeal pointed out, that section is concerned with the requirements of service of the notice, complaint or summons. Non-compliance does not affect the validity of the notice, but rather the efficacy of its service. [26] Section 19(3) of the SPE is fundamentally different. It is concerned not with the requirements of service of a proceeding which has been validly commenced, but with what must happen before a proceeding may be started. A failure to have served a copy of the declaration beforehand does not go to the regularity of service, but rather to whether the proceeding may have been lawfully started. For that reason, the respondent cannot improve its position, with respect to s 19(3) of the SPE, by proving that the declaration was included in the material which was served on the appellant, once the proceeding was purportedly started, nor can it obtain comfort from the Court of Appeal’s observations with respect to the consequence of a failure to comply with s 116 of the TOR. [27] Having made the aforementioned further submissions, the respondent was asked to clarify, amongst other things:  Whether it was accepted that s 19(3) is a precondition to the commencement of the proceeding, and  The basis upon which it was contended that the declaration had been served by the time the proceeding started [28] In response, the respondent gave the following ‘clarification’: “i) Section 19(3) appears to be a pre-condition to the commencement of proceedings. Although, the respondent queries whether there would be any injustice or prejudice towards any defendant if, in the event the declaration was not served with the summons, they were allowed more than 28 days between receipt of the declaration and the hearing in order to make their own declaration of a known user; 10 Supra at para [43]. -- 7 of 8 -- 8 ii) Proceedings started on 10 April 2013; iii) As noted at paragraph 2.10 of the respondent’s submission, the applicant accepted that he received the declaration prior to attending court. This is noted at page 8, line 44 of the trial transcript.” [29] With respect, that tends to avoid, rather than to confront, the issue. In that respect:  The failure to satisfy a mandatory pre-condition to the commencement of a proceeding is not overcome by contending that the appellant would not have been prejudiced in the event that the obligation was performed as if it were a condition subsequent rather than a condition precedent;  The mandatory requirement for service of the declaration as a condition precedent is evidently designed to ensure that a person in the appellant’s position is made aware that he has been nominated as the user before becoming the subject of a proceeding, and  Neither service of the declaration with the complaint and summons upon the proceeding being started nor receipt of the declaration prior to trial satisfied the requirement that the proceeding could only have been started if the user had been served with the declaration. [30] In the absence of any evidence that a copy of the declaration had been served on the appellant, as the user, by the time the proceeding was purportedly started, the prosecution must fail. [31] The time for filing the notice of appeal is extended to 9 December 2014. The appeal is allowed, the conviction is set aside and a verdict of not guilty is entered. -- 8 of 8 --