Bennett v Mackay - [2011] QMC 20

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Bennett v Mackay [2011] QMC 20

PARTIES:

TREVOR CHARLES BENNETT

(complainant)

v

ANGUS DAVID MACKAY

(defendant)

FILE NO/S:

MAG-00050197/11(5)

DIVISION:

Magistrates Courts

PROCEEDING:

Complaint - Summary hearing

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

29 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2011

MAGISTRATE:

Taylor AR (Acting Magistrate)

ORDER:

1.          Copies of instruments of delegations certified by a justice of the peace are inadmissible

2.          No case to answer submission upheld

3.          Complaint dismissed

CATCHWORDS:

EVIDENCE –GENERALLY ‑ application of ‘best evidence rule’ to copy of document

EVIDENCE –ADMISSIBILITY AND RELEVANCY –DOCUMENTARY EVIDENCE – Instrument of Delegation –copy not admissible at instance of party holding original

EVIDENCE –ADMISSIBILITY AND RELEVANCY –DOCUMENTARY EVIDENCE –Copy of document issued by justice of the peace as a certified copy not prima facie admissible –where complainant argued copy of document certified by justice of the peace admissible to same extent as original – where complainant argued the Evidence Act 1977 rendered copy of document admissible to same extent as original

EVIDENCE –DOCUMENTARY EVIDENCE –certificate –statements in certificate not covered by statutory provisions not admissible evidence

VEHICLES AND TRAFFIC – offences –camera detected offence – speeding ‑ evidentiary effect of certificates – method of proof ‑ whether offence proved

TRAFFIC LAW –OFFENCES –camera detected offence –speeding

PRACTICE AND PROCEDURE –MISCELLANEOUS PROCEDURAL MATTERS –Starting Proceedings –non-fulfilment of condition precedent –where service of vehicle owner declaration (known user declaration) on defendant in compliance with statutory provision not proven

Acts Interpretation Act 1954 s 27A

Evidence Act 1977 s 5, s 29, s 42, s 44, s 51, s 97, s 116

Justices of the Peace and Commissioners for Declarations Act 1991 s 29

Police Service Administration Act 1990 s 4.10

Public Service Act 2008 s 103

Transport Operations (Road Use Management) Act 1995 s 60, s 120, s 124,

Traffic Regulation 1962 s 208, s 211, sch 10

Transport Planning and Coordination Act 1994 s 37

State Penalties Enforcement Act 1999 s 17, s 19, s 157, sch 2

Lekich v Dixon [2009] QDC 111 – cited.

Dixon v Lekich [2010] QCA 213 –considered.

Omychund v barker 1 ATK 22 – considered.

Myers v Director of Public Prosecutions [1965] AC 1001 –considered.

Masquerade Music Ltd v Springsteen [2001] EWCA Civ 513 – considered

Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 155 – followed.

Commissioner of Police v Parsons [2011] QDC 41 – followed.

COUNSEL:

Byrne (Acting Sergeant) appeared for complainant

The defendant appeared on his own behalf

SOLICITORS:

Police Prosecution Corps, Queensland Police Service appeared for complainant

The defendant appeared on his own behalf

Proceedings commenced by way of complaint and summons for a speeding offence alleged to have been committed at Bardon on 6 October 2010.

No witnesses were called in the prosecution case. The complaint and summons indicated that the offence was detected by a photographic detection device and thus the offence was a camera detected offence as defined by s 113 of the Transport…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bennett v Mackay

Details

AGLC: Bennett v Mackay [2011] QMC 20
Case: [2011] QMC 20
Decision Date: 29 July 2011

CaseChat Overview and Summary

Bennett v Mackay was a case heard by the Australian court where the primary issue was the admissibility of documentary evidence in relation to a speeding offence. The dispute arose between the plaintiff, Bennett, and the defendant, Mackay, concerning the evidence provided to support the charge of a speeding offence detected by a camera. The legal issues before the court involved the application of the 'best evidence rule', the admissibility of a copy of a document when the original is held by another party, and the interpretation and application of statutory provisions regarding certificates and declarations.

The court examined whether a copy of a document issued by a justice of the peace could be admitted as evidence to the same extent as the original, and whether the Evidence Act 1977 rendered the copy admissible to the same extent as the original. The court further assessed the admissibility of statements in a certificate that were not covered by statutory provisions, as well as the evidentiary effect of certificates in proving a camera-detected speeding offence.

The court reasoned that the certificate provided did not meet the statutory requirements, as it did not specify the permitted matters for certification as outlined in the State Penalties Enforcement Act 1999. The certificate instead focused on the failure to provide a valid statutory declaration, which the court found was an attempt to negate any defence available to the defendant. The court held that the certificate was invalid due to the inconsistency between the wording of the relevant subsection and the wording of the certificate. Consequently, the court upheld the no case to answer submission and dismissed the complaint against the defendant.

The final orders of the court included the inadmissibility of copies of instruments of delegation certified by a justice of the peace, the upholding of the no case to answer submission, and the dismissal of the complaint. This decision underscores the importance of strict compliance with statutory requirements when certifying documents and the limitations of the admissibility of copies of documents in legal proceedings.

Orders

Orders of the court

1. Copies of instruments of delegations certified by a justice of the peace are inadmissible

2. No case to answer submission upheld

3. Complaint dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The provision permits certification about the giving or failure to give to the administering authority either an illegal user declaration or a known user declaration or an unknown user declaration or a sold vehicle declaration which terms are defined in clear terms in the Dictionary (Schedule 2) for State Penalties Enforcement Regulation 2000. The certificate does not certify in clear terms that neither an illegal user declaration nor a known user declaration nor an unknown user declaration nor a sold vehicle declaration have been received by the commissioner or the chief executive which is the very thing permitted to be certified pursuant to s 157(2)(j) of the State Penalties Enforcement Act 1999. Instead of dealing with the matter or matters in terms permitted by s 157(2)(j) the certificate relates that the defendant “has not given the Commissioner notification by way of a valid Statutory Declaration, within 28 days from the Infringement Notice issue date in compliance with Section 114 of the Transport Operations (Road Use Management) Act 1995.” This process appears to be an attempt to negative any defence available to the defendant under s 114(3) of the Transport Operations (Road Use Management) Act 1995.[18][18] See Transport Operations (Road Use Management) Act 1995, s 114(3), (4), (5), (6) and (7). Although there could conceivably be much concurrence between the material facts which need be stated by the vehicle owner (or deemed owner or user or person served with an infringement notice) in completing one of the declarations mentioned in s 157(2)(j) of the State Penalties Enforcement Act 1999 and those facts necessary to comply with s 114 Transport Operations (Road Use Management) Act 1995, I do not consider that the commissioner or other person ought be permitted, in claimed reliance upon s 157(2)(j) of the State Penalties Enforcement Act 1999, to have a certificate admitted into evidence which does not with at least some specificity plead the matters that ground its admission. It is to be observed that s 124(1)(k) of the Transport Operations (Road Use Management) Act 1995 permits the commissioner, or his delegate, to give a certificate touching upon the factual matters mentioned in exhibit 10 I consider that the inconsistency between the wording of the subsection and wording of the certificate invalidates the certificate. McGill DCJ reached a similar conclusion:[19] For completeness the provisions of the subsection being referred to by His Honour now appear as s 120(2A) of the Transport Operations (Road Use Management) Act 1995. I now turn to the matters established by the evidence contained within the images and certificates, subject of course to final determination as to their admissibility. The defendant’s identity is established thus: A vehicle bearing registration number 071DHU was detected exceeding the speed limit (exhibits 1 and 2). Its registered owner, Deborah Margaret Ward‑Mackay (exhibit 6) completed a known user declaration nominating the Angus Mackay as the person in charge or driver of the vehicle at the time of the offence (exhibit 7).

CITATION:	Bennett v Mackay [2011] QMC 20
PARTIES:	TREVOR CHARLES BENNETT (complainant) v ANGUS DAVID MACKAY (defendant)
FILE NO/S:	MAG-00050197/11(5)
DIVISION:	Magistrates Courts
PROCEEDING:	Complaint - Summary hearing
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	29 July 2011
DELIVERED AT:	Brisbane
HEARING DATE:	14 July 2011
MAGISTRATE:	Taylor AR (Acting Magistrate)
ORDER:	1. Copies of instruments of delegations certified by a justice of the peace are inadmissible 2. No case to answer submission upheld 3. Complaint dismissed
CATCHWORDS:	EVIDENCE –GENERALLY ‑ application of ‘best evidence rule’ to copy of document EVIDENCE –ADMISSIBILITY AND RELEVANCY –DOCUMENTARY EVIDENCE – Instrument of Delegation –copy not admissible at instance of party holding original EVIDENCE –ADMISSIBILITY AND RELEVANCY –DOCUMENTARY EVIDENCE –Copy of document issued by justice of the peace as a certified copy not prima facie admissible –where complainant argued copy of document certified by justice of the peace admissible to same extent as original – where complainant argued the Evidence Act 1977 rendered copy of document admissible to same extent as original EVIDENCE –DOCUMENTARY EVIDENCE –certificate –statements in certificate not covered by statutory provisions not admissible evidence VEHICLES AND TRAFFIC – offences –camera detected offence – speeding ‑ evidentiary effect of certificates – method of proof ‑ whether offence proved TRAFFIC LAW –OFFENCES –camera detected offence –speeding PRACTICE AND PROCEDURE –MISCELLANEOUS PROCEDURAL MATTERS –Starting Proceedings –non-fulfilment of condition precedent –where service of vehicle owner declaration (known user declaration) on defendant in compliance with statutory provision not proven Acts Interpretation Act 1954 s 27A Evidence Act 1977 s 5, s 29, s 42, s 44, s 51, s 97, s 116 Justices of the Peace and Commissioners for Declarations Act 1991 s 29 Police Service Administration Act 1990 s 4.10 Public Service Act 2008 s 103 Transport Operations (Road Use Management) Act 1995 s 60, s 120, s 124, Traffic Regulation 1962 s 208, s 211, sch 10 Transport Planning and Coordination Act 1994 s 37 State Penalties Enforcement Act 1999 s 17, s 19, s 157, sch 2 Lekich v Dixon [2009] QDC 111 – cited. Dixon v Lekich [2010] QCA 213 –considered. Omychund v barker 1 ATK 22 – considered. Myers v Director of Public Prosecutions [1965] AC 1001 –considered. Masquerade Music Ltd v Springsteen [2001] EWCA Civ 513 – considered Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 155 – followed. Commissioner of Police v Parsons [2011] QDC 41 – followed.
COUNSEL:	Byrne (Acting Sergeant) appeared for complainant The defendant appeared on his own behalf
SOLICITORS:	Police Prosecution Corps, Queensland Police Service appeared for complainant The defendant appeared on his own behalf