Angela Liati v D.P.P

[2010] NSWDC 80

CITATION:	Angela Liati v D.P.P [2010] NSWDC 80
EX TEMPORE JUDGMENT DATE:	2 March 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Conviction appeals dismissed.
CATCHWORDS:	Criminal Law - Appeal against Local Court convictions (x4) - camera detected speeding offences - appellant's claim she was not the driver - driver said to be now deceased - statutory deeming that responsible person taken to be guilty
LEGISLATION CITED:	s.179 Road Transport (General) Act 2005 Motor Accidents Compensation Act
PARTIES:	Angela Liati Director of Public Prosecution
FILE NUMBER(S):	2009/83760; 2009/112116; 2009/108263; 2009/176508
SOLICITORS:	Crown: Ms E Hogg Defence: Ms A Liati (Self-represented)

JUDGMENT

1. This appellant appeals against convictions recorded by Magistrate Farnan in the Local Court at Sutherland on 15 September 2009. She was before the court on that occasion for four speeding offences: one that occurred on 13 October 2006 in the Eastern Distributor, a second that occurred on 28 October 2006, also in the Eastern Distributor, a third that occurred on 12 November 2006 on Henry Lawson Drive and the fourth that occurred on 10 December 2006 at Henry Lawson Drive.

2. An appeal to this court is a re-hearing of the evidence by way of the transcripts of the Local Court and in this case also by way of other documents handed up on the question of the relevant address of the appellant.

APPELLANT: Your Honour I do have the other two as well.

HIS HONOUR: Thank you, just sit down please.

3. Each of the four matters was a camera detected offence. The appellant’s situation is that she was not, she says, the driver of the relevant vehicle, which is the same vehicle in all offences at the time that these offences were committed. Before the Magistrate she nominated as the relevant driver, an uncle, a man by the name of P-A-N-G-I-O-T-I-S P-A-N-O-U-S-I-S, who as events transpired passed away on 27 August 2008 at the age of 79.

4. It was her case that she was not the driver; that she had sent statutory declarations to the RTA; that she has spent hours discussing this and trying to contact them by phone; that they had apparently lost the first lot of statutory declarations even though she had sent them by over night mail where you get a little number and that she had sent in a number of statutory declarations later.

5. Those of us who have been unfortunate enough to receive penalty notices would know that on the penalty notice is a contained a statutory declaration for the purpose of advising the Roads and Traffic Authority, firstly, that the registered owner was not at the relevant time the driver and secondly nominating the name and address, if known, of the person who was in charge of the vehicle.

6. What is also significant to remember is that on that form is the address to which those documents should be sent. On this occasion the complainant’s case is each of the four apparently did not arrive at its intended destination. I find that a proposition that is difficult to accept, 1 certainly, 2 possibly, 3 would be a real coincidence, but 4, would appear to me be just not on the cards.

APPELLANT: Forgive me your Honour, they were all sent together.

HIS HONOUR: You’ve had your opportunity, if you do not like what is in this, you may take it somewhere else.

7. It is also her case that in the course of speaking to them on the 8 May 2007 she did not think that any of the matters would have been out of date. She said that she sent them collectively and that they dealt with them separately on 8 June and 22 June.

She made the point that:

It serves them right,” but since the person driving is deceased that they are not going to get anywhere and that serves them right. She said that was divine justice because in 2006 he was certainly alive, he was an uncle and he has passed away.

She handed up material in respect of the uncle and I will come to that in a minute.

8. A nominated person she told her Honour was Peter Panousis who was my uncle who passed away in 2008. The appellant had evidence of a funeral leaflet or brochure concerning him and a letter from her aunty confirming that he drove her car. That letter as will be seen in a moment does not deal with the relevant dates but certainly it raises, if it were accepted, a reasonable possibility perhaps, and a letter from his doctor. They were tendered and marked as Exhibit 3.

9. As that material appeared, it would have been open to her Honour to understand that Peter Panousis was said to be the driver on all four occasions. The appellant gave this evidence:

“I will say for the RTA’s benefit and since then it has come to my attention, that on occasions that the person I gave the car to was driving, my uncle. My uncle was also driving on the other two occasions.”

10. The evidence was that in October she would have sent the first one. That of course contradicts the proposition that she sent them all together. Because in October she had not received the November and December ones - says that they would have been the first she sent. Then she says a little later down on the same page:

“I sent one lot, I actually have copies of the fax received there. I sent one lot on 11 May.”

11. In the course of cross-examination the appellant was confronted with a statutory declaration in the possession of the RTA, in which she had nominated a person by the name of Tony Rapotos as the driver of the vehicle on the latter two dates.

HH INTERRUPTED BY FURTHER SUBMISSIONS FROM THE APPELLANT

12. On 27 October 2007 there appears a letter on the letterhead of one Dr Brett Thompson, 5/62 Alison Crescent, Menai, addressed “To Whom it May Concern”. It gives the address of the appellant as 40A Cairns Street, Riverwood, and it is in these terms:

“Pangiotis Panousis of 52 Port Madoc Drive, suffers from cirrhosis of the liver with widespread metastases, diabetes and depression. He is severely unwell and his condition is terminal. His niece, Angela Liati, is his principal carer. She provides daily care and takes him to his medical appointments, which are required on a frequent basis. For this she needs to be able to drive. If this care was no longer able to be given, in particular if she couldn’t take him to appointments, his condition would significantly worsen. Yours sincerely--“

- And I note the signature is covered over with a document. I cannot be satisfied that that document was ever signed by the doctor, or ever produced by him.

APPELLANT: Forgive, your Honour - I have the original, your Honour. And I hope your Honour is not confusing that date with - that’s the October 2007, that’s a year later, a year after the offence, which is October 2006, your Honour, but I have the original, your Honour.

HIS HONOUR: I have been handed a document, which is said to be the original, in which--

APPELLANT: Forgive me, the original may have been sent to the RTA, that could be a copy.

HIS HONOUR: --in which the word B-R-E-T-T and two, possibly three other letters appear as the signature of Brett Thompson, which appears to be the original of the document I am speaking of.

13. There is also a letter in these terms from one Dimitria Panousis, who says that her husband Peter Panousis passed away through his liver cancer in July 2008.

“Prior to this, and in particular during 2006, my niece Angela Liati spent a lot of time driving my husband to different places, including doctors’ appointments, hospitals for radiation, and other treatments, shopping trips, haircuts, and took him out for lunches, and other outings including visits to friends.

On a few occasions my husband enjoyed driving Angela’s car, which was a 2005 Toyota Avalon. I know this because he told me at the time, and although I cannot remember the exact date, I know it was definitely during 2006.”

What I note about that letter is that there is no reference to the car being leant to anybody else with her husband in it. All of the driving was said to have occurred in circumstances where she was in it.

14. The appellant now says that the penalty notices were sent to her, as I understand it, at an address in Abbotsford, Unit 3, 54 St Albans Street, Abbotsford. That address plays some part in a document where the State Debt Recovery Office has sent her a notice of some kind, information supplied under s 51 of the Fines Act, to her at 40A Cairns Street, Riverwood, in respect of a 10 December offence, and it may well be in respect of an earlier offence, the November offence I think was also sent to that address. There is one in October 2006 sent to her at 40A. In each case they make the note that a penalty reminder notice relating to the offence was also served upon her at Unit 3, 54 St Albans Street, Abbotsford on or about 2 March 2007. It was also sent on or about 16 January 2007 in relation to the 26 October matter, and also sent on the same date in relation to the 12 November matter. So that two addresses were used to contact, it would seem to me.

15. The fact that something was sent to her at Unit 3, 54 St Albans Street, Abbotsford does not establish the proposition that the penalty notice was sent to that address, and indeed the evidence is to the contrary. There is a s 221 Motor Accidents Compensation Act certificate which establishes that on 28 October 2006 the relevant vehicle was registered - or recorded in the appellant’s name whose last recorded address is DUP 1/40 Cairns Street, Riverwood, New South Wales.

HH INTERRUPTED BY FURTHER SUBMISSIONS FROM PARTIES

16. This morning I commenced a judgment in the appeal of Angela Liati in respect of four speeding charges. In the course of that judgment Ms Liati sought to make more submissions. In the course of the judgment I also was concerned as to whether the penalty notices were sent to the correct address. At that time I was operating under the assumption that they should have been sent to an address at 40 A Cairns Street Riverwood. It is clear that at that time, that is, at the time of the offences and until August of 2007 the appellant was living at unit 3 54 St Albans Street Abbotsford and notices were sent to that address. There is evidence that documents that were sent to that address at about that time had been received by the appellant and I am satisfied that the relevant penalty notices for the four offences were sent to that address.

17. It is conceded that within the relevant twenty-one days statutory declarations were not received by the RTA. There is a claim that some were sent individually. There is a claim that all were sent together. I am satisfied that none were received by the RTA and that in the normal course of events they would have been received if they had been sent.

18. I am also satisfied that during May 2007 the appellant was doing all she could to have statutory declarations sent and received by the RTA, and it appeared to me that at least some of them, if not all of them, were received but that was outside the twenty-one days. She was at that time and ever since saying that she was not the driver.

19. As I earlier said before lunch, each of the offences was a camera detected offence, and the history of traffic prosecutions in the Local Court and the Appeals Court, that is appeals in this Court, are replete with challenges to convictions arising from camera detected matters. There are two main themes to such defences. One is I am not the driver, and the second is a defence relating to the capacity of the equipment to calculate accurately the speed of the vehicle.

20. I do not need to concern myself with the second because in this case it is the first that is being looked at. But I note that in respect of both of those themes, the legislature, no doubt acting on recommendations of the RTA, has introduced legislation which assists the prosecution of offences where registered owners or drivers raise issues challenging the accuracy of the equipment, or the presence of the registered owner behind the steering wheel. In this case the challenge is, as I say, made by the appellant that she was not the driver in each of these cases. The appellant is in each case the registered owner of the motor vehicle.

21. As will be seen, the legislation to which I refer puts an obligation upon the registered owner to give notice to the RTA of two matters. Firstly, that the registered owner was not the driver and, secondly, the name and address of the person who was driving. Strictly speaking, the obligation as set out in the legislation is expressed as one requiring the supply of a statutory declaration of the name and address of the person in charge of the vehicle on the occasion of the offending conduct within twenty-one days of service; see s 179(4) of the Road Transport (General) Act 2005 No 11. However, it may be that some period of grace is allowed. There is, it seems to me, up to a forty day period from posting the penalty notice by the RTA in which the registered owner can advise the RTA of two matters referred to above; see again s 179(5).

22. The learned magistrate set out the relevant sections in her judgment and I suppose I need to do the same in this, but the principal hurdle the appellant has is the application of s 179(1) of the Road Transport (General) Act 2005 to her case. Section 179 is to be found in chapter five of the Road Transport (General) Act 2005 No 11. It is entitled “Enforcement of Road Transport Legislation”. Section 179 is one of the sections contained in pt 5.1 “Liability for Offences”. Section 179 is headed:

“(1) Responsible person for vehicle taken to have committed designated offences . If a designated offence occurs in relation to any registrable vehicle, the person who, at the time of the current of the offence, is the responsible person for the vehicle is taken to be guilty of an offence under the provisions concerned in all respects as if the responsible person were the actual offender of the designated offence unless...

(The vehicle was at the relevant time stolen or the actual offender would have had a defence to any prosecution)”

It is clear, as the learned magistrate said, that the legislation envisages occasions when the responsible person is not in fact the actual offender. That is to be seen in the terms of s 179(1) and also in the terms of s 179(2), “liability of actual offender unaffected”. Nothing in this section affects the liability of the actual offender. However, if a penalty has been imposed on or recovered from any person in relation to any designated offence no further penalty may be imposed on or recovered from any other person in relation to the offence.

23. The appellant sought to take advantage of subs 4 and I will set that out. Subsection 4 is headed:

:

“A person who:

(a) is served with a penalty notice...in respect of a camera recorded offence and

(b) was not the driver of the vehicle to which the offence relates at the time the offence occurred

(c) must within twenty-one days after service of the notice supply by statutory declaration to the authorised officer...the name and address of the person who was in charge of the vehicle at the time the offence occurred.”

24. In subsection 4 it is presumed that the penalty notice served on the person by post is served on that person twenty-one days after it is posted unless the person establishes that it was not received by the person or was not received by the person within the twenty-one day period. The appellant has also sought to claim that was so. I am satisfied that it was not so. There were four different penalty notices, each sent by mail. Her claim is that she received none of them. I find that fanciful.

25. Subsection 8 does give an “out” when responsible person for vehicle not liable for camera recorded offence:

“A person who is served with a penalty notice...in respect of a camera recorded offence is not guilty of that offence by operation of this section if the person (a) complies with subs 4 in relation to the offence or (b) satisfies the authorised officer...that person did not know or could not with reasonable diligence have ascertained the name and address of the person who was in charge of the vehicle at the time the offence occurred.”

None of those provisions in (8) applies here. It is established to my satisfaction beyond reasonable doubt that the appellant has failed to comply with subs 4, and, likewise, I am satisfied that at all times she knew, or could with reasonable diligence have ascertained the name and address of the person she claims was in charge of the motor vehicle.

26. In the event I do not have to determine whether she was the driver or whether some other person was the driver. I note that the magistrate did not make any such determination but simply noted a claim of the appellant not to be the driver. The claim at the earliest can be dated, it seems to me, in May 2007.

27. This is a conviction that will stand as a consequence of the provision of s 179(1), and in all the circumstances I have reviewed both the facts before the magistrate, come to my own view of them. I have reviewed her Honour’s decision, not that it is necessary really for me to comment on it. I simply find myself in agreement with it, although I may have expressed myself differently because I am working on my own findings of fact. I come to the same conclusion that her Honour did, that in respect of each of the offences a conviction cannot be avoided because of the application of s 179.

28. The conviction is confirmed. There is no appeal against the penalties. The penalties are confirmed. Court costs are likewise confirmed.