Bennett v Mackay
[2011] QMC 20
•29 July 2011
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 Operations (Road Use Management) Act 1995. Accordingly, in lieu of oral testimony of witnesses, the prosecution sought to tender certain documents in the form of certificates together with copies of certain instruments of delegation.
I invited and received submissions from the prosecutor as to the admissibility of the certificates and instruments. The prosecutor responded with certain submissions and I sought further responses from the prosecutor in relation to certain matters raised.
Having heard from the prosecutor I enquired if, subject to my determining the admissibility of the documentary materials, a point which I reserved, that was the case for the prosecution. The prosecutor then informed me that it was indeed the case for the prosecution.
After providing some explanation to the defendant of the matters under discussion between the prosecutor and I, I indicated it was my preliminary view that the instruments and certificates were inadmissible and there may be no case for the defendant to answer. I then adjourned the matter for written judgment. I did so because the issue of admissibility of copies of instruments of delegation had emerged in a number of similar matters recently conducted before me.
The offence of speeding
Pursuant to s 20 of the Transport Operations (Road Use Management—Road Rules) Regulation 2009 the defendant was charged as follows:
That on the 6th day of October 2010 at Bardon in the Central Division of the Brisbane Magistrates Court District in the State of Queensland he being the driver of a vehicle namely a car drove at a speed over the speed limit namely 60 kilometres per hour applying to him for the length of road namely Jubilee Terrace Bardon where he was driving.
To understand the importance of the various certificates and instruments sought to be admitted it is necessary to set out the elements of the offence, which are:
1. That he, the defendant,
2. drove
3. a vehicle namely a car;
4. on 6 October 2010;
5. at Bardon;
6. at a speed in excess of 60 kilometres per hour;
7. on a road namely Jubilee Terrace;
8. and that a speed limit of 60 kilometres per hour applied to that length of road wherein his speed was detected.
Onus of proof
In these proceedings the prosecution bears the onus of proving all of the elements of the offence to the criminal standard, namely proof beyond reasonable doubt.
Facilitation of proof
Oral evidence on oath or affirmation given upon personal attendance at court[1] is the basis form of evidence required in all matters where the criminal standard of proof applies. Evidence that departs from that standard requires some statutory or other authority or exception for its reception.
[1]Omychund v Barker 1 ATK 22.
In this case the prosecution seeks to provide proof of all matters by the tender of documents.
Certain provisions of the relevant traffic legislation permit this to be done in a number of ways. The primary statutory provisions which apply are s 120 and s 124 Transport Operations (Road Use Management) Act 1995. Relevant provisions thereof are set out below in context together with other applicable statutory provisions.
No evidence required of certain matters – the vehicle and the road
There are matters about which the prosecution need not adduce any evidence at all. S 124 relevantly provides:
124 Facilitation of proof
(1) In any proceeding under or for the purpose of this Act, the following apply—
…
(r) the allegation or averment in any complaint that—
…
(ii)any thing is or was a vehicle, tram, train, vessel, or animal or of a particular class or description thereof; or
(iii)any place or thing is or was a road or a part of a road or an off-street regulated parking area or a part of such an area; or …
shall be evidence of the matter or matters so averred or alleged, and in the absence of evidence in rebuttal thereof shall be conclusive evidence of such matter or matters; …
The complaint sworn against the defendant contains two averments: that the said car is a vehicle as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995; and further, that Jubilee Terrace is a road as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995.
The defendant upon explanation and enquiry from me indicated that he did not desire to take issue with either averment. Thus, pursuant to s 124(1)(r)(ii) and s 124(1)(r)(iii) the technical portions of the third and seventh elements of the offence required no further proof.
Evidence permitted to be tendered in documentary form
For the remainder of the elements or matters about which proof was required, the prosecution sought to tender various documents (primarily certificates) in reliance upon statutory provisions.
The following documents were provisionally admitted, subject to my ruling as to admissibility, which rulings appear later in this judgment:
1. Certificate of photograph of defendant’s vehicle − Certificate pursuant to s 120(2) Transport Operations (Road Use Management) Act 1995 by Jeffrey A Dixon, (Acting Senior Sergeant, Traffic Camera Office) and dated 7 June 2011 as to Image taken by Photographic Detection Device (Gatso Speed Camera system model Radar AUS24 bearing serial number 2173), and including the image (photograph).
2. Certificate of number plate of defendant’s vehicle − Certificate pursuant to s 120(2) Transport Operations (Road Use Management) Act 1995 by Jeffrey A Dixon, (Acting Senior Sergeant, Traffic Camera Office) and dated 7 June 2011 as to Image taken by Photographic Detection Device (Gatso Speed Camera system model Radar AUS24 bearing serial number 2173), and including the image (enlarged central portion of Exhibit 1 more clearly showing registration plate).
3. Certificate of test and accuracy of speed detection device −Certificate pursuant to s 120(2A) of the Transport Operations (Road Use Management) Act 1995 by Jeffrey A Dixon, (Acting Senior Sergeant, Traffic Camera Office) and dated 7 June 2011 as to test, on 19 April 2010 of Gatso Speed Camera system model Radar AUS24 bearing serial number 2173 and as to the accuracy of the device.
4. Certificate of registration number of vehicle involved − Certificate pursuant to s 157(2)(f) of the State Penalties Enforcement Act 1999 by Jeffrey A Dixon, (Acting Senior Sergeant, Traffic Camera Office) and dated 7 June 2011 as to registration number of vehicle involved in detected infringement.
5. Certificate as to registered owner of vehicle − Certificate pursuant to s 60(2)(d)(i) and s 124(1)(n)(ii) of the Transport Operations (Road Use Management) Act 1995 by Elizabeth Marcella Kearney (Statistics and Reporting Officer (Prosecutions Unit), Department of Transport and Main Roads) and dated 1 June 2011 as to registered owner of vehicle.
6. Certificate of nomination of driver of vehicle −Certificate pursuant to s 157(2)(j) of the State Penalties Enforcement Act 1999 by Jeffrey A Dixon, (Acting Senior Sergeant, Traffic Camera Office) and dated 7 June 2011 as to nomination of (defendant as) driver of vehicle.
7. Statutory Declaration nominating defendant as driver − by registered owner, Deborah Margaret Ward-Mackay, dated 26 October 2010 (and being annexed to infringement notice issued to declarant).
8. Certificate of withdrawal of infringement notice issued to DM Ward-Mackay − Certificate pursuant to s 157(2)(e) of the State Penalties Enforcement Act 1999 by Jeffrey A Dixon, (Acting Senior Sergeant, Traffic Camera Office) and dated 7 June 2011 as to withdrawal of infringement notice 144439570 issued to Deborah Margaret Ward-Mackay.
9. Certificate of service of infringement notice on defendant − Certificate pursuant to s 157(2)(a) of the State Penalties Enforcement Act 1999 by Jeffrey A Dixon, (Acting Senior Sergeant, Traffic Camera Office) and dated 7 June 2011 as to service of infringement notice 144738913 upon the defendant.
10. Certificate non receipt of exculpatory declaration by defendant − Certificate pursuant to s 157(2)(j) of the State Penalties Enforcement Act 1999 by Jeffrey A Dixon, (Acting Senior Sergeant, Traffic Camera Office) and dated 7 June 2011 as to failure to give the commissioner of the police service (hereinafter referred to as the commissioner) notification pursuant to s 114 Transport Operations (Road Use Management) Act 1995.
11. Police Commissioner delegation D 25.13 − Copy of Instrument of Delegation/Authority of Robert Atkinson, Commissioner of the Queensland Police Service, dated 27 April 2010, delegating to certain officers his powers to issue certain certificates pursuant to s 120(2) and s 120(2A) of the Transport Operations (Road Use Management) Act 1995.
12. Chief Executive’s delegation of Transport Operations (Road Use Management) Act 1995 powers − Copy of Instrument of Delegation of David Malcolm Stewart, Chief Executive of the Department of Transport and Main Roads, dated 25 May 2011, delegating to holders of certain offices the power to sign certificates pursuant to s 60 Transport Operations (Road Use Management) Act 1995.
13. Chief Executive’s delegation of State Penalties Act 1999 powers − Copy of Instrument of Delegation of David Malcolm Stewart, Chief Executive of the Department of Transport and Main Roads (hereinafter referred to as the chief executive), dated 17 December 2009, delegating to (inter alia) Senior Sergeant, Traffic Camera Office certain powers pursuant to the State Penalties Act 1999.
For ensuing discussion certificates and instruments assumed admissible
The following discussion of the elements and proof thereof proceeds upon the assumption that the certificates and instruments of delegation are admissible. The admissibility of those certificates and instruments will be discussed later in this judgment.
Exhibit 11 is the delegation of power to the certifier of exhibits 1, 2 and 3 above.
Exhibit 12 is the delegation of power to the certifier of exhibit 5.
Exhibit 13 is the delegation of power to the certifier of exhibits 4, 6 8, 9 and 10.
Evidence contained within or on the photographic images
The matters for which the photographic images are evidence are prescribed by the Transport Operations (Road Use Management) Act 1995 and the Traffic Regulation 1962.
Transport Operations (Road Use Management) Act 1995
120 Evidentiary provisions
(1) This section applies to a proceeding for an offence involving a motor vehicle under this or another Act.
(2) An image produced by the prosecution purporting to be certified by the commissioner stating that the image was properly taken by a photographic detection device at a specified location and time is evidence of the following matters—
(a)the image was taken at the specified location and time;
(b)the accuracy of the image;
(c)the things depicted in the image;
(d)any requirements prescribed by a regulation about the operation and testing of a photographic detection device were complied with for the specified device at all material times.
(2A) A certificate purporting to be signed by the commissioner stating that a stated photographic detection device—
(a)was tested at a stated time and in accordance with—
(i) the specifications of the device’s manufacturer; and
(ii) any further requirements about calibration testing prescribed under a regulation; and
(b)was found to produce accurate results at the time of testing;
is evidence of the matters stated and evidence the device was producing accurate results when so tested and for 1 year after the day of testing.
(3) If an image produced under subsection (2) is one in a series of images also produced under subsection (2)—
(a)the image may be numbered; and
(b)the time it was taken may be identified by reference to another image in the series.
(4) A marking or writing made by a photographic detection device on an image is taken to have the meaning prescribed under a regulation and is evidence of what it is taken to mean.
(6)[2] Evidence of the condition of the photographic detection device is not required unless evidence that the device was not in proper condition has been given.
[2] There is no subsection (5).
Traffic Regulation 1962
208 Approved photographic detection devices
A camera system described in schedule 10 is approved for section 113 of the Act, definition photographic detection device.
…
211 Markings or writings on photographic detection device images other than ANPR camera system images
(1) For section 120 of the Act, a data block has the meaning given in—
(a)for an image of a vehicle taken by an analogue speed camera system—schedule 11, part 3; and…
(2) In this section—
data block means the marking or writing made by a photographic detection device on an image taken by the device.
on, an image, includes adjacent to or associated with the image.
Schedule 10 Approved photographic detection devices
section 208
Part 2 Analogue speed camera system
Gatso speed camera system model Radar AUS 24
Schedule 11 Data blocks for analogue redlight camera systems and analogue speed camera systems
section 211
Part 3 Image taken by an analogue speed camera system
A is details written by the operator of the system’s camera, when a film magazine is inserted, that are superimposed on each image on the film as it is taken.
B is the direction that the vehicle the speed of which was measured by the system (the target vehicle) is travelling in relation to the system’s camera. “A” indicates the target vehicle was travelling away from the camera. “F” indicates the target vehicle was travelling towards the camera.
C is the sensitivity range selected by the operator of the system’s camera. “-” indicates range I, the lower sensitivity range, was selected. “--” indicates range II, the higher sensitivity range, was selected.
D is the speed, in kilometres per hour, at which the system’s camera was travelling in relation to the ground when the image was taken.
E is the speed, in kilometres per hour, at which the target vehicle was travelling in relation to the system’s camera when the image was taken.
F is the speed, in kilometres per hour, at which the target vehicle was travelling in relation to the ground when the image was taken.
G is the time, in 24-hour clock mode, when the image was taken. The large numbers indicate hours and minutes, in that order. The small numbers indicate seconds.
H is the date when the image was taken, in the order of day, month and year (ddmmyy) or year, month and day (yymmdd).
I is the number given in the Traffic Camera Coding Manual for the location of the system’s camera when the image was taken.
J is the maximum speed limit, in kilometres per hour, for the place at which the image was taken when the image was taken.
K is the number allocated sequentially by the system for each image taken by the system’s camera after the film magazine was inserted in the camera.
Example—
The diagram in this part shows—
• the target vehicle was travelling away from the camera
• range II (high) was selected
• the camera was stationary
• the target vehicle was travelling at 83km/h in relation to the camera and in relation to the ground
• the image was taken at 12:37:04p.m. on 1 May 1997
• the camera was located at the place given the number 110001 in the Traffic Camera Coding Manual
• the maximum speed limit at that place and time was 75km/h
• the image was the twenty-ninth image taken by the camera since the film magazine was inserted
Thus the images (exhibits 1 and 2) are evidence of the following: the nature of the vehicle or vehicles;[3] that registration number plate 071DHU was attached to the vehicle depicted[4] and the vehicle depicted is the vehicle noted in the register of vehicles as then having that registration number;[5] that the vehicle was travelling towards the camera [6] at a speed of 91 kilometres per hour in relation to the ground[7] at 10:53am[8] on 6 October 2010.[9]
[3] S 120(2)(c) Transport Operations (Road Use Management) Act 1995.
[4] S 120(2)(c) Transport Operations (Road Use Management) Act 1995.
[5] S 120(2)(c) & s 124(1)(ta) Transport Operations (Road Use Management) Act 1995.
[6] Item B of the data block, per s 120(4) S 120(2)(c) Transport Operations (Road Use Management) Act 1995 read together with r 211(1)(c) and schedule 11 − Part 3 Traffic Regulation 1962.
[7] Items D, E & F of the data block, per s 120(4) S 120(2)(c) Transport Operations (Road Use Management) Act 1995 read together with r 211(1)(c) and schedule 11 − Part 3 Traffic Regulation 1962.
[8] Item G of the data block, per s 120(4) S 120(2)(c) Transport Operations (Road Use Management) Act 1995 read together with r 211(1)(c) and schedule 11 − Part 3 Traffic Regulation 1962.
[9] Item H of the data block, per s 120(4) S 120(2)(c) Transport Operations (Road Use Management) Act 1995 read together with r 211(1)(c) and schedule 11 − Part 3 Traffic Regulation 1962.
Further, the maximum speed limit for the place where the image was taken was 60 kilometres per hour.[10]
[10] Item J of the data block, per s 120(4) S 120(2)(c) Transport Operations (Road Use Management) Act 1995 read together with r 211(1)(c) and schedule 11 − Part 3 Traffic Regulation 1962.
Further still the certification on the images is evidence that the image was taken by Gatso Speed Camera system model Radar AUS 24 bearing serial number 2173 (the speed detection device) at Jubilee Terrace, Bardon[11] and was taken at 10:53 on 6 October 2010.[12]
[11] S 120(4) S 120(2) Transport Operations (Road Use Management) Act 1995.
[12] S 120(2) Transport Operations (Road Use Management) Act 1995, which seems to me to be prescribed in addition to extracting the the information contained in the data block (items G & H).
Evidence contained within other certificates or documents tendered
Exhibit 3 certifies the accuracy of the speed detection device at the time the image was taken.[13]
[13] S 120(2A) Transport Operations (Road Use Management) Act 1995.
Exhibit 5 is conclusive, although rebuttable, evidence that on the date of the alleged offence the vehicle bearing registration number 071DHU was registered in the name of Deborah Margaret Ward‑Mackay of 21 Hawthorne Avenue, Ashgrove.[14]
[14] S 60(2)(d)(i) and s 124(1)(n)(ii) Transport Operations (Road Use Management) Act 1995.
Documentary evidence is also given in reliance upon provisions of the State Penalties Enforcement Act 1999.
State Penalties Enforcement Act 1999
Part 3 Infringement notices
Division 1 Service of infringement notices
13 Service of infringement notices—generally
(1) If an authorised person reasonably believes a person has committed an infringement notice offence, the authorised person may serve an infringement notice on the person for the offence.
(2) If the infringement notice offence involves a vehicle, the infringement notice may be served under section 14.
(3) Section 14 does not limit the ways an infringement notice may be served on a person.
14 Service of infringement notices for infringement notice offences involving vehicles
(1) An infringement notice for an infringement notice offence involving a vehicle may be served—
(a)on the owner of the vehicle; or
(b)on the person named in a known user declaration as the person who was in charge of the vehicle at the relevant time; or
(c)on the person named in a sold vehicle declaration as the person to whom the vehicle had been sold or otherwise disposed of before the relevant time.
(2) If the infringement notice is to be served by post, the notice may be addressed to the person—
(a)for the owner of the vehicle—at the latest address of the owner in the register of vehicles kept under a registration Act; or
(b)for the person named in a known user declaration—at the person’s address stated in the declaration; or
(c)for the person named in a sold vehicle declaration—at the person’s address stated in the declaration.
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.
Division 2 Liability for infringement notice offences involving vehicles
17 Liability for infringement notice offences involving vehicles
(1) If—
(a)an infringement notice offence involving a vehicle happens; and
(b)an infringement notice for the offence is served on the person who is the owner of the vehicle at the time of the offence; the owner is taken to have committed the offence even though the actual offender may have been someone else.
(2) If the actual offender is someone else, subsection (1) does not affect the liability of the actual offender, but—
(a)the owner and the actual offender can not both be punished for the offence; and
(b)if a fine is paid or a penalty is imposed on one of them for the offence, a further penalty must not be imposed on or recovered from the other person for the offence.
(3) However, the owner must not be taken under subsection (1) to have committed the offence if, within 28 days after the date of an infringement notice or service of a summons for the offence, the owner makes and gives to the administering authority an illegal user declaration, a known or unknown user declaration or a sold vehicle declaration for the vehicle for the offence.
(4) The declaration must be made by—
(a)if the owner is an individual—the owner; or
(b)if the owner is a corporation—an executive officer of the corporation or the responsible operator.
(5) A declaration by an executive officer of a corporation must be under the common seal of the corporation.
19 Effect of known user declaration
(1) This section applies if—
(a)an infringement notice offence involving a vehicle happens; and
(b)an infringement notice for the offence is served on the person who is the owner of the vehicle at the relevant time; and
(c)the person makes and gives to the administering authority a known user declaration for the vehicle.
(2) This section and section 17 apply as if the person named in the declaration as the person in charge of the vehicle at the relevant time (the user) were the owner of the vehicle at that time.
(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.
(4) 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.
(5) In a proceeding for the offence against the owner mentioned in subsection (1)(b), a court must not find the owner guilty of the offence if it is satisfied, whether on the statements contained in the declaration or otherwise, the owner was not in charge of the vehicle at the relevant time.
…
157 Evidentiary provisions
(1) This section applies to a proceeding under this or another Act.
(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;
…
(e)an infringement notice has not been withdrawn or was withdrawn on a stated date;
(f)an offence stated in an infringement notice involved a stated vehicle or animal;
(g)a stated person owned a stated vehicle or animal at a stated time;
(h)a stated person owned a stated animal at a stated time;
(i)a stated address is the latest address of the owner of a stated vehicle in the record of registration of vehicles under a registration Act;
(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;
(k)a fine has not been paid by, and a penalty has not been imposed on, a stated or any person for an offence stated in an infringement notice.
Schedule 2 Dictionary
section 3
known user declaration, for an offence involving a vehicle, means a statutory declaration stating—
(a)if the owner is—
(i) an individual—the owner was not in charge of the vehicle at the relevant time; or
(ii) a corporation—the vehicle was not being used for the corporation at the relevant time; and
(b)the name and address of the person who was in charge of the vehicle at the relevant time.
sold vehicle declaration, for an offence involving a vehicle, means a statutory declaration stating facts establishing the owner had sold or otherwise disposed of the vehicle before the relevant time and was not in charge of the vehicle at that time, including—
(a)the name and address of the person to whom the vehicle was sold or disposed of; and
(b)the date and, if relevant, time of the sale or disposal; and
(c)if an agent made the sale or disposal for the owner, the name and address of the agent.
unknown user declaration, for an offence involving a vehicle, means a statutory declaration stating—
(a)if the owner is—
(i) an individual—the owner was not in charge of the vehicle at the relevant time; or
(ii) a corporation—the vehicle was not being used for the corporation at the relevant time; and
(b)the person making the declaration has not been able to find out who was in charge of the vehicle at the relevant time; and
(c)the nature of the inquiries made to find out the name and address of the person in charge of the vehicle at the relevant time.
State Penalties Enforcement Regulation 2000
Schedule 3 Transport legislation
sections 4 and 10
Transport Operations (Road Use Management) Act 1995
Authorised person for service of infringement notices—an authorised
officer under the Transport Operations (Road Use Management) Act 1995, section 20
Transport Operations (Road Use Management) Act 1995
20 Appointment of authorised officers
(1) Every police officer is an authorised officer.
(2) The chief executive may appoint any of the following persons to be an authorised officer—
(a)officers and employees of the public service;
\(b)other persons prescribed under a regulation.
(3) The chief executive may appoint a person as an authorised officer only if satisfied the person has the necessary expertise to be an authorised officer.
(4) A provision of part 3 that corresponds to a provision of the Police Powers and Responsibilities Act 2000 does not apply to an authorised officer who is a police officer.
Exhibit 4 is evidence that the instant offence involved vehicle bearing registration number 071DHU.[15]
[15] S 157(2)(f) State Penalties Enforcement Act 1999. The registration number of the vehicle involved is also established by evidence contained within the image (exhibits 1 & 2), per s 120(2)(c) & s 124(1)(ta) Transport Operations (Road Use Management) Act 1995, op cit.
Exhibit 6 is evidence that the registered owner of the vehicle (Deborah Margaret Ward‑Mackay) has given the commissioner what seems to be in substance, if not in form, a known user declaration.[16]
[16] S 157(2)(j) State Penalties Enforcement Act 1999.
Exhibit 7 is a statutory declaration purporting to be under the hand of Deborah Ward‑Mackay endorsed on Infringement Notice 0144439570 nominating Angus Mackay of 21 Hawthorne Ave, Ashgrove as the person in charge/driver of vehicle registration number 071DHU at the time of the offence.
Exhibit 8 is evidence of the withdrawal of infringement notice 144439570 issued to Deborah Margaret Ward‑Mackay, the registered owner of the vehicle.[17]
[17] S 157(2)(e State Penalties Enforcement Act 1999.
Exhibit 9 is evidence of service by mail of infringement notice 144738913 upon the defendant.
Exhibit 10 is very poorly drafted. The heading to the certificate purports reliance upon s 157(2)(j) of the State Penalties Enforcement Act 1999 but the text thereof does not reflect the language of that provision.
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
124 Facilitation of proof
(1) In any proceeding under or for the purpose of this Act, the following apply—
any certificate purporting to be signed by the chief executive, the commissioner, a superintendent, chief executive officer of a local government or a clerk of the court or other person having custody of records relating to payments of moneys payable under this Act of the receipt or non-receipt of any notice, application, or payment or of any other thing required by this Act to be given or made shall, upon its production in evidence, be evidence of the matter or matters certified to therein, and, in the absence of evidence in rebuttal thereof, shall be conclusive evidence of such matter or matters;
[Emphasis added]
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]
Exhibit 8 is odd if it purports to rely on paragraph (pf), since it does not certify that the device was used in conjunction with a stated speed detection device, but merely that a photographic detection device having a particular serial number was tested. On its face therefore it is not what is required as a certificate under paragraph (pf). When this was pointed out to counsel for the respondent, it was conceded that the inconsistency between the wording of the subsection and the wording of the certificate may invalidate the certificate. In my opinion, it does, and as a result this Exhibit was of no evidentiary effect. It appears that the wording of s 124(1)(pf) was amended in 2007 by Act 6 of 2007, before this certificate was given (on 17 July 2008), but the wording of the certificate had not been adjusted to accommodate the amendment.
[19]Lekich v Dixon [2009] QDC 111 at [21].
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.
Identification of defendant
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).
Pursuant to s 17 and s 19 State Penalties Enforcement Act 1999 and s 114 Transport Operations (Road Use Management) Act 1995 the person named in the known user declaration (exhibit 7) is taken to have committed the offence. The astute reader of complaint and summons will note that proceedings have been taken against one Angus David Mackay a name which is not identical to that provided in the declaration.
Pursuant to s 19(3) of the State Penalties Enforcement Act 1999 a proceeding for the offence may be started against the user (in this case the defendant) if a copy of the declaration has been served on the user. Neither exhibit 9 nor the oath of service of the complaint and summons certify or depose to the service of a copy of the declaration upon the defendant in these proceedings.
The prosecution has therefore failed to prove compliance with a condition precedent to the issue of the complaint and summons and the prosecution is for this reason at least doomed to fail.
Defendant was the driver
The defendant is deemed to be in charge of the vehicle and the vehicle is moving (exhibits 1 and 2), thus the defendant drove the car.
Date and time of alleged offence
The date and time of the offence, 6 October 2010 at 10:53am are established by the images and endorsed certificates (exhibits 1 and 2).
Location of offence
The location of the offence at Jubilee Terrace, Bardon is established by the certificates endorsed on the images (exhibits 1 and 2).
Detected speed of defendant’s vehicle
The speed of the defendant’s vehicle, namely 91 kilometres per hour is established by the image (exhibits 1) and by the certificate of test and accuracy of the speed detection device (exhibit 3).
Applicable speed limit
The speed limit applying to the length of road where the defendant was driving was 60 kilometres per hour and is established by certificate of the image (exhibit 1).
Admissibility of certificates generally – need to prove delegated authority
The terms of the statutory provisions[20] make a certificate of the commissioner or the chief executive admissible as evidence. The certificates in these proceedings are not certificates of the commissioner or of the chief executive but rather they are certificates of persons purporting to be delegates of the commissioner or chief executive, as the case may be.
[20]Op cit in relation to evidentiary value of the various certificates.
Before the respective certificates may be admitted in evidence it must be proven, by admissible evidence, that each signatory is the delegate of the commissioner or the delegate of the chief executive, as the case may be. Thus, evidence of the respective delegations is required and evidence thereof can not emanate from the professed delegate.
To permit evidence of the delegation to be led from the delegate, whether orally or in terms of the certificate, would be to permit the delegate to hoist themselves up by their own bootstraps. That is not permitted because that would be hearsay evidence for which I know of no exception, statutory or otherwise, relevant to these circumstances.
The prosecutor plainly understood that to be so as she sought to tender copies of certain delegations in discharge of the onus of proving the delegations. The need for the delegation to be proven was explained with clarity by McGill DCJ−[21]
In order to show, however, that the certificate of the respondent was effective as a certificate for the purpose of s 120 of the Act, it was necessary for the respondent to prove the fact of that delegation. Without proof of that, the certificate was not capable of having the evidentiary effect provided for by s 120 in the case of a certificate by the commissioner.
[21]Lekich v Dixon [2009] QDC 111 at [38]. This proposition was not disturbed on appeal, Dixon v Lekich [2010] QCA 213.
Although in Lekich v Dixon, McGill DCJ was referring only to certificates by the commissioner his comments apply mutatis mutandis to certificates of the chief executive.
It is important to note that if the certificates lack evidentiary effect the complaint will have failed to prove one or more of the elements of his case (eg, speed of the defendant’s vehicle) with fatal consequences for the prosecution.
Pursuant to s 4.10 Police Service Administration Act 1990 the commissioner may delegate his powers to a police officer or a staff member. This section permits a delegation by the commissioner to Acting Senior Sergeant Bennett.
4.10 Delegation
(1) The commissioner may delegate powers of the commissioner under this Act or any other Act to a police officer or staff member.
(2) Without limiting subsection (1), the commissioner may also, under subsection (1), delegate powers of the commissioner to discharge the prescribed responsibility.
Pursuant to s 103 Public Service Act 2008 the chief executive may delegate his powers to an appropriately qualified person. This section permits a delegation by the chief executive to Ms Kearney.
103 Delegation
(1) A chief executive may delegate the chief executive’s functions under an Act to any appropriately qualified person.
(2) A delegation of a function may permit the subdelegation of the function.
(3) If the function is performed under another Act, the power to delegate or subdelegate is subject to the other Act.
An appropriately qualified person is defined in the dictionary (Schedule 4) to the Act to be−
appropriately qualified, in relation to a delegated function or power, includes having the qualifications, experience or standing to perform the function or exercise the power.
Example of standing—
a person’s classification level in the public service
Pursuant to s 37 Transport Planning and Coordination Act 1994 the chief executive may delegate his powers under that Act or any Act to any person. This section permits a delegation by the chief executive to Acting Senior Sergeant Bennett.
37 Delegation by the Minister or the chief executive
(1) The Minister or the chief executive (the delegator) may delegate to a person a function or power of the delegator under this or another Act.
(2) A function or power may be subdelegated if the delegation allows the subdelegation of the function or power.
Permissible methods of proof of the delegation
The delegations of the commissioner and the chief executive could be proved by each of those persons giving oral evidence in the court. However, inconveniencing either of those persons by calling them to give oral evidence is not strictly necessary.
First, section 27A(13) of the Acts Interpretation Act 1954 relevantly provides that writing purporting to be, or to contain, the delegation is evidence of the delegation. Further, one would expect there to be in existence writing purporting to be or contain the delegation because of the directory provisions of s 27A(3) of the of the Acts Interpretation Act 1954 (reproduced below). Therefore tender of the delegation reduced to writing would be admissible as evidence of the delegation.
Second, there exists a short cut to proof of a delegation, also contained with the Acts Interpretation Act 1954. As McGill DCJ points out−[22]
Section 27A(14) of the of the Acts Interpretation Act 1954 provides that “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.” Accordingly, a certificate signed by the commissioner would have been admissible as evidence of the delegation, and by subsection (15) a document purporting to be such a certificate is to be taken to be such a certificate unless the contrary is established, so that on the face of it such a certificate could simply have been tendered.
[22] Lekich v Dixon [2009] QDC 111at [40].
The relevant provisions of the Acts Interpretation Act 1954 are−
27A Delegation of functions or powers
(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.
…
(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.
Noting s 27A(3)of the Acts Interpretation Act 1954, a delegation must be in writing or evidenced in writing signed by the commissioner or chief executive as the case may be and pursuant to subsection (13) writing purporting to be or contain the delegation is evidence of the delegation.
Although nothing turns on it I conclude that the instruments (the originals at least if in the same terms as the copies shown to me) are the delegations rather than written evidence of delegations made other than in writing. I reach this conclusion for two reasons: the terms of the respective instruments do not include any words or recital indicating a reduction to writing of a delegation made orally; and the terms of the instruments indicate a form not readily amenable to oral delivery.
It is unnecessary to prove the signature of either the commissioner or the chief executive as the Evidence Act 1977 provides that the signatures of each are to be judicially noticed.[23]
[23]S 42(1)(f) and s 42(3) Evidence Act 1977. Schedule 1 to the Act identifies both the commissioner of the police service and the chief executive of a department as examples of offices of a public nature established under an Act.
In these proceedings the prosecution called neither the commissioner nor the chief executive to give evidence of their delegation. Nor did the prosecution tender an instrument of delegation, by either the commissioner or the chief executive. Nor has the prosecution tendered a certificate under the Acts Interpretation Act 1954 stating something in relation to the delegation.
In lieu thereof the prosecution has sought to tender documents purporting to be copies of each instrument of delegation. Each copy sought to be tendered was endorsed with a certificate by a justice of the peace (hereafter referred to simply as JP) purporting to certify each to be a true and correct copy of the original.
This matter and a similar matter also to be disposed of by me today are the most recent in a line of similar prosecutions where I called into question the admissibility of copies of the relevant instruments of delegation.
In the first matter my attention to the issue was triggered by the prosecution endeavouring to tender what appeared to be a photocopy of the instrument on the basis that it was a copy certified a JP to be a true and correct copy.
I indicated to the prosecutor in that matter that I knew of no basis for the admission of a copy of a document certified to be true and correct by a JP, nor was I aware of any other basis for tendering a copy only of the delegation.
It subsequently emerged that the JP concerned was employed as an administrative officer or in some similar capacity within the Traffic Camera Office.
In that particular matter it transpired that the copy sought to be tendered had been made by the justice herself from the original by means of a photocopier. The admissibility of the copy was resolved after some short evidence from the justice which then permitted admission of the copy pursuant to s 116 Evidence Act 1977.
116 Copies to be evidence
Notwithstanding any other provision of this part, where a document has been copied by means of a photographic or other machine which produces a facsimile copy of the document, the copy is, upon proof to the satisfaction of the court that the copy was taken or made from the original document by means of the machine, admissible in evidence to the same extent as the original document would be admissible in evidence without—
(a) proof that the copy was compared with the original document; and
(b) notice to produce the original document having been given.
In the present matter and in intervening matters where there was a requirement to prove the delegation I sought submissions from the police prosecutor as to any statutory or other authority for the admission of a copy of the instrument of delegation, whether certified by a JP or otherwise. Regrettably none of the defendants were legally represented and I have not had the benefit of any useful submissions from any of the defendants and more particularly the defendant herein.
The prosecutor in the instant case offered written submissions which I will endeavour to deal with together with a number of other lines of argument advanced in recent cases.
Before moving to address the arguments variously raised I note that I received no submissions as to the applicability of the best evidence rule to the instant circumstances and that I will also return to that matter later in this judgment.
Proof by tender of copy
The issue now under consideration is whether the copies of the instruments of delegation will suffice as proof of the respective delegations.
I note that the defendant himself raised no objection to the tender of the copies of the delegation. The defendant in these proceedings is not legally represented. After the issue of admissibility of the copies had been raised by me I enquired of the defendant whether he understood the significance of the discussion passing between the prosecutor and the bench. His reply indicated it was not an issue he appreciated. By inference he therefore would not have appreciated that he was entitled to take objection to the form in which the evidence was sought to be tendered. That, in my experience, is the overwhelmingly usual position.
The court owes a duty to an unrepresented litigant, in appropriate circumstances, to make objection on his behalf to evidence that is prima facie objectionable. This is in furtherance of the court’s duty to ensure the defendant receives as fair a hearing as is possible. Additionally it does not do anything for the probity of the court or for the community’s confidence in the judicial system to permit the prosecution to take, witting or unwitting, advantage of an unrepresented defendant to adduce evidence which is prima facie objectionable.
It is true that it would have been open to me to explain to the defendant why admission of the copies of the instruments was objectionable and enquire whether he objected to their admission. That course did not seem to me to be appropriate in the present circumstances. That is because it had become apparent that prosecutors in matters of camera detected offences routinely tender copies rather than original instruments of delegation or original s 27A(14) Acts Interpretation Act 1954 certificates..
Given that the evidentiary deficiency under discussion seems to reflect the ordinary practice adopted in these types of prosecutions by the traffic camera office, I consider it to be prudent to deal with many of the submissions put before me in recent times, not only those made by the prosecutor in the instant matter.
I consider it prudent because the arguments advanced are repeated without regard to the oral rulings already made and because there are a great many of these types of prosecutions. It seems to be that there is a substantial public policy interest that prosecutions of this type not proceed, with the considerable expense in time and inconvenience to the courts and members of the public, in circumstances where basic evidentiary deficiencies doom the prosecution to failure. Moreover I do so because a number of the submissions made in support of the tender of copies of the delegations appear to be specious arguments which ought be dealt in a written judgment lest our courts continue to be inconvenienced in dealing with them.
The terms or tenor of the submissions by the prosecutor, that the particular documents (viz. the copies) sought to be tendered are admissible, include: a copy certified under the hand of a JP to be a true and correct copy is prima facie admissible because statutory provisions permit a JP to witness or attest a document and the JP’s signature is to be judicially noticed; alternatively such copy is admissible in reliance upon s 116 of the Evidence Act 1977 in that the court would be satisfied of the matters required by s 116 upon the certificate of the JP; the copy of the respective instrument of delegation is itself a certificate pursuant to the Acts Interpretation Act 1954; s 44 of the Evidence Act 1977 permits the admission into evidence of a copy certified by a JP and the copy is then evidence to the same extent as the original; s 27A(13) of the Acts Interpretation Act 1954 provides for the admission of writing purporting to be the delegation and because a copy is purporting to be the delegation it is admissible to the same extent as the original; that s 97 of the Evidence Act 1977 permits the court to admit the copy certified by a JP as being sufficiently authenticated; the documents require no proof because they are public documents; or that the copy purports to be the document itself because of s 5 of the Evidence Act 1977. I will deal with each of those propositions shortly.
The consequences for the prosecutions of this type, if JP certified copies are not admissible, was also discussed in oral submissions. To the extent that during oral argument I suggested that given the number of these prosecutions and the scant likelihood that a copy of a delegation tendered by a police prosecutor would be falsified, that it is almost a ludicrous situation to require original certificates or delegations to be tendered, I withdraw that suggestion. Upon reflection, it is not ludicrous to require a proper and not particularly inconvenient method of proof for a simple or other offence, nor is it in my view overly pedantic do so.
Any discussion touching upon the rules of evidence in Queensland begins with an appreciation that the Evidence Act 1977 and its counterparts in other States are statutory fragments in a matrix of common law.[24] Many of the provisions of the Evidence Act 1977 are themselves statutory formulations (with or without modifications) of the common law exceptions to the rule against hearsay or the best evidence rule (see for example s 116).
[24]Evidence Law in Queensland 5th Edition JRS Forbes at [A.9].
The starting point for a hearing wherein the criminal standard of proof applies is that evidence be given orally on oath. This is the genesis of the best evidence rule.[25]. The best evidence rule is also the genesis of the rule against hearsay.[26]
[25] See Omychund v Barker 1 ATK 22 for the earliest formulation of the rule.
[26] See Myers v. Director of Public Prosecutions [1965] AC 1001, for a discussion of the rule against hearsay and the closed nature of the exceptions to the rule.
It has been said that the best evidence rule, particularly in civil proceedings, has expired. The authors of Phipson on Evidence 16th Ed, expressed the opinion (7‑45 p 182):
“Thus, it would appear that the best evidence rule has, in civil cases at least, been consigned to the history books.”
That opinion was expressed by reference to what was said by Jonathan Parker LJ in Masquerade Music Ltd v Springsteen:[27]
“… the time has now come when it can be said with confidence that the best evidence rule, long on its deathbed, has finally expired. In every case where a party seeks to adduce secondary evidence of the contents of a document, it is a matter for the court to decide, in the light of all the circumstances of the case, what (if any) weight to attach to that evidence. Where the party seeking to adduce the secondary evidence could readily produce the document, it may be expected that (absent some special circumstances) the court will decline to admit the secondary evidence … . At the other extreme, where the party seeking to adduce the secondary evidence genuinely cannot produce the document, it may be expected that (absent some special circumstances) the court will admit the secondary evidence and attach such weight to it as it considers appropriate in all the circumstances. In cases falling between those two extremes, it is for the court to make a judgment as to whether in all the circumstances any weight should be attached to the secondary evidence. Thus, the “admissibility” of secondary evidence of the contents of documents is … entirely dependent upon whether or not any weight is to be attached to that evidence … taking into account all the circumstances of the particular case.” [85] [Emphasis added]
[27] [2001] EWCA Civ 513
It appears that, even in England, where the rule is said to have expired the rule of evidence remains that where a party can readily produce the document, secondary evidence of the document (eg a copy) would not be admitted.
The High Court however has held that the rule has not expired: Gummow, Callinan and Crennan JJ said:[28]
Despite criticism of it, the "best evidence rule" has not fallen completely into desuetude. Subject to the exigencies of litigation, the circumstances of the parties and the other settled and statutory rules of evidence, it has vitality. An aspect of the rule is that courts should act upon the least speculative and most current admissible evidence available.
[28]Golden Eagle International Tradig Pty Ltd v Zhang [2007] HCA 15 (at paragraph 4)
The words of Lord Mansfield assist in explaining the High Court’s position:[29]
It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.
[29]Blatch v Archer 1 COWP 66 − a criminal case.
To an extent the rule reflects the risk of adverse comment from a judge (or court) about inferences that might be drawn where a party who has the original fails or declines to produce it.
The prosecution in this case must be deemed to hold the original documents for they are in the custody of or held under authority of the commissioner or the chief executive upon whose authority the prosecution is taken. To assert otherwise would be incredible.
But these proceedings are not civil proceedings and even more stringent rules apply because the issues fall to be determined on criminal standard of proof. The foregoing, whilst providing the courts perspective of the production of secondary evidence, is not the test which the prosecution has to meet.
Myers v Director of Public Prosecutions[30] assists in explaining that the instruments are documentary hearsay. That an instrument of delegation may be tendered in lieu of oral evidence to prove the delegation is a statutory exception to the rule against hearsay. Evidence that departs from either rule requires some recognised exception or a statutory authority to justify its reception. There must be a recognised exception for the production of the document (there is) and further there must be a recognised exception to allow admission of a copy of the document in lieu of the original (there is, but not one which fits the circumstances of the instant case). The application of any exception will need to be considered in parallel with the remnants of the best evidence rule.
[30]Myers v. Director of Public Prosecutions, op cit.
Copy certified by a JP to be a true and correct copy
It was put that a JP holds a public office and that pursuant to the s 42 of the Evidence Act 1977 the signature of a JP is to be judicially noticed and that because, pursuant to s 29(1)(b) of the Justices of the Peace and Commissioners for Declarations Act 1991, a JP may take an affidavit or attest any instrument of document, this was sufficient authority for the reception into evidence of a document certified by the JP. Presumably this submission is put as an exception to the best evidence rule.
Evidence Act 1977
42 Signatures of holders of public offices etc. to be judicially noticed
(1) Judicial notice must be taken of—
(a)the signature of a person who is or has been the holder of a public office; and
(b)the fact that the person holds or has held the office.
(2) For subsection (1), the following offices are public offices—
…
(e)the office of a justice of the peace or commissioner for declarations;
…
(4) This section is in addition to, and does not limit, the common law, another provision of this Act or a provision of another Act.
Justices of the Peace and Commissioners for Declarations Act 1991
29 Powers of justices of the peace and commissioners for
declarations
(1) A justice of the peace—
…
(b) may take any affidavit or attest any instrument or document that may be taken or attested under any Act or law.
It is accepted that the signature of and the office of a JP are to be judicially noticed. However the difficulties in accepting the submission of the prosecution are not dependent upon whether one accepts the person is a JP or that the office of the person is that of JP.
The difficulties in accepting the submission are these:
1. The document, namely the certificate of the JP, in contradistinction to copy of the instrument of delegation it is endorsed upon, is not an affidavit taken by the JP, nor is it an instrument or document the execution of which was attested (witnessed) by the JP.
2. The document (the endorsement) expresses a conclusion as to truth and accuracy of copy in comparison to the original which has been sighted by the JP. In endeavouring to tender the JP certificate the prosecution is in reality seeking to lead evidence as to the JP’s examination of the original and copy and opinion as to the accuracy of the copy.
3. Accepting that the certificate as to accuracy endorsed on the copy is given by a JP,[31] I know of no law which permits the mere certificate of a JP to be admitted as evidence. A JP stands in no better position than any other witness. Absent a provision which permits the evidence of a JP to be taken by certificate the certificate is inadmissible documentary hearsay.
[31] Per s 42 Evidence Act 1977, I may and do judicially notice the office and signature of the JP.
The Justices of the Peace and Commissioners for Declarations Act 1991 contains no general jurisdiction for a JP to certify documents as true and correct copies. Although I have been a JP since 1983 and have worked in the courts in one capacity or another since 1979 I know of no statutory provision granting a JP such a jurisdiction. It is true that many institutions, both private and public, are content to rely upon copies of documents of all types certified by JP’s but that is not the same as the certificate being evidence admissible in court proceedings.
JPs certificate permits admission of copy under s 116 Evidence Act 1977
It has also been asserted that the certificate of the JP would permit the court to be satisfied of the faithfulness of the copy in terms of s 116 of the Evidence Act 1977,.namely that the certificate of the JP provided evidence that the copy had been made by means of a photocopier from the original.
Again, there are difficulties with this submission. First, s 116 by its terms required that there be proof to the satisfaction of the court that the copy was taken or made from the original document by means of the [photographic or other machine which produces a facsimile copy of the document] − and the tenor of the certificate of the is that the copy is an examined copy rather than a machine copy[32].
[32] The certificate of the JP relates− “This is to certify that this is a true copy of the original which I have sighted.”
The second difficulty is that before the document is admissible the court must reach a level of satisfaction that the copy was taken or made by the means mentioned in s 116. There must, in my view, be at least some admissible evidence before the court to enliven the jurisdiction of the court to admit the copy so taken or made. For without evidence there can be no proof.[33]
[33] Unless, in an appropriate case, judicial notice may be taken of a fact, but plainly may not be the case here.
Proof beyond reasonable doubt of the matter is not required by the terms of s 116 and the court appears to have discretion to act upon whatever level of satisfaction may seem meet.
Notwithstanding a level of proof less than proof beyond reasonable doubt is required, it is my view that the court is not freed of the requirement to act only upon admissible evidence in exercising its discretion. For the reasons outlined above the certificate of the JP is not admissible and thus there is no evidence upon which the court might exercise the discretion set out in s 116.
If I be wrong about that I would still exercise my discretion by refusing to rely upon the text of the JP’s certificate because it does not relate that the copy was made by, for example, a photocopier and does not exclude the possibility the copy has been scanned and manipulated by software before being printed.
Recently Dearden DCJ, whilst upholding a magistrate’s discretion to decline to admit a copy pursuant to s 116, seems to have left open the possibility that the court, in reaching the required level of satisfaction, is not bound to act only upon admissible evidence of the matters set out in s 116. His Honour said−[34]
I do not consider that the learned magistrate was in error in not accepting the photocopy of the document of delegation, either pursuant to the decision in Lekic v Dixon nor pursuant to s. 116 of the Evidence Act 1977. It was an exercise of a discretion, and I do not consider that the learned magistrate was in error in refusing the admission of the document.
[34]Commissioner of Police v. Parsons [2011] QDC 41 at [20].
The following provides a more complete explanation of the matter His Honour had under consideration−[35]
[35]Ibid.
[11] The learned magistrate then (upon the prosecution closing its case) stated3 “I note on the back of the instrument of delegation there is a notation that says “the within is a copy of the document of which it purports to be a copy dated at Beenleigh 4th day of August 2009” and that’s signed by a JP, but that’s even a photocopy. It’s not a – it’s not even an original. So, I am satisfied that that’s – that’s not sufficient evidence of that instrument of delegation, and as per that case of Lekic and Dixen, [sic] the – if the instrument of delegation isn’t presented to the court, well that’s lethal…and the prosecution…case must fail.”
[12] The prosecutor then sought to be heard on the issue, and in particular argued that the photocopy itself was admissible under s 116 of the Evidence Act.
The learned magistrate then indicated that on all occasions in the past the original, had been handed up for the magistrate to sight
[13] The learned magistrate went on to say “I think it’s even worse because the instrument of delegation, even though there is that on the back, that’s even a photocopy in itself. It’s not a – that’s not … an original and I’m not prepared to accept that. I mean, I just think those are the standards that we – if it was a much more serious offence, that’s the standard that the court would apply, and just because this is a less serious offence, we still have to apply those standards … so I’m not prepared to accept what you handed up as proper evidence.”
[14] The learned magistrate then went on to conclude that the prosecution had not satisfied the onus of proof with regard “to that charge that he was doing 120 kilometres per hour”
The copy itself a certificate under the Acts Interpretation Act 1954
Certificate is not defined in the Acts Interpretation Act 1954. The Australian Concise Oxford Dictionary, 7th Ed. defines certificate to mean‑ 1. n. document formally attesting a fact, esp. birth, marriage, death, medical condition, abilities, fulfilment of requirements, ownership of shares, etc. 2…
Butterworths Australian Legal Dictionary defines certificate to be‑ A written document setting out certain facts. It may be a declaration, attestation or a simple record under hand.
Although I have set out the meaning of certificate, whether original documents exist that mirror the contents of the copies sought to be tendered is in reality of little assistance. Whilst arguably a written delegation is capable of being a certificate within the meaning of certificate outlined above, this submission cannot avoid the application of the best evidence rule. The copy is a copy is a copy and cannot be presumed to be its own original. The copy is not capable of being an original certificate and thus not capable of being admitted in reliance upon s 27A(14) of the Act. QED.
The copy might be received pursuant to s 44 of the Evidence Act 1977
The prosecutor for the instant matter provided written submissions in support of this line or argument and for others. The relevant portion of her submission reads−
“Section 44 of the Evidence Act 1977…[is set out] …
Section 27A(13) as mentioned in Dixon v Lekich[36] sates: “writing purporting to be, or to contain, a delegation, or the revocation of a delegation, is evidence of the delegation or revocation.
I have looked in to the definition of purporting. There is no definition in the Evidence Act, Acts Interpretation Act or the legal dictionary. The definition in the Macquarie Dictionary is “to profess or claim”.
It is my submission that this copy of the original claims to be a true an correct copy of the original. Proof of this is the JP stamp and signature on it. It is my submission that this document then purports to be an official document and is admissible in evidence for any purpose unless the contrary intention appears to the same extent and for the same purpose as the original. This complies with section 44 of the Evidence Act.”
[36] Taken to be a reference to Dixon v Lekich [2010] QCA 213.
S 44 of the Evidence Act provides−
44 Proof by purported certificate, document etc.
Where by a law in force in Queensland—
(a) a certificate; or
(b) an official or public document; or
(c) a document of a corporation; or
(d) a copy of, or extract from, a document;
is admissible in evidence for any purpose, a document purporting to be the certificate, document, copy or extract shall, unless the contrary intention appears, be admissible in evidence to the same extent and for the same purpose provided that it purports to be authenticated in the manner (if any) directed by that law.
On the basis that the prosecutor asserts the admissibility of a copy pursuant to the section, the effect of s 44 is this‑ If a law in force in Queensland permits admission of a copy of a document into evidence, the copy is admissible to the same extent and for the same purpose as the original, provided the copy has been authenticated in the manner, if any, required by that law.
Thus, if some other law, permits a copy to be used in lieu of an original document the copy is of the same value as the original, provided it is properly authenticated under that other law if that law requires the copy to be authenticated. If that other does not require authentication of the copy before admission, it need not be authenticated at all.
By its clear terms s 44 requires another law to make the copy admissible for some purpose before s 44 operates to define the limits of use to which such copy might be put.
Despite repeated requests to the prosecutor to identify the law in force in Queensland that made the copy of the instrument admissible in evidence she was unable to do so. I too am unaware of any statute that does. It is possible that the prosecutor believes that because there is statutory provision for JPs that is sufficient. I have already dealt with this matter and find it unnecessary to take it further.
A further difficulty with the prosecutor’s line of reasoning lies in the assertion contained in the third paragraph set out above. The assertion appears to be that the copy purports the contents to the same extent as the original and thus purports to be the respective instrument of delegation.
The precise difficulties here are that the copy also purports that it is a copy rather than the original (see s 5 of the Evidence Act 1977[37] which is set out below) and thus it is inadmissible because it breaches the best evidence rule.
[37] Relying upon either paragraph (a) or (c).
5 Meaning of document purporting to be of certain character etc.
For the purposes of this Act a document, including any instrument or part of an instrument, purports—
(a) to be of a certain character; or
(b) to have been produced or authenticated at a certain time, in a certain manner, by a certain person or body, or by a person having a certain qualification or occupying a certain office; or
(c) any other matter whatever;
if the document expressly or impliedly represents that matter or a court can assume that matter from the contents of the document or otherwise.
Admissible pursuant to s 97 of the Evidence Act 1977
S 97 of the Evidence Act 1977 is of no assistance to the prosecution as it applies only to documents proposed to be given in evidence by virtue of Part 6 of the Evidence Act 1977. None of the provisions of Part 6 can be said to have application.
The documents require no proof because they are public documents
It has not been asserted to me either in the instant matter or in other proceedings precisely how the instruments of delegation qualify as public documents and I know of no statutory provision that makes them so. In any event were they public documents they would still require appropriate sealing, examination or certification prior to there being admissible in these proceeds. See, for example, s 51 of the Evidence Act 1977−
51 Proof of public documents
Where a document is of such a public nature as to be admissible in evidence on its mere production from proper custody, a copy of or extract from the document shall be admissible in evidence if—
(a) it is proved to be an examined copy or extract; or
(b) it purports to be certified as a true copy or extract under the hand of a person described in the certificate as the person to whose custody the original is entrusted.
Copy is the document itself because of s 5 of the Evidence Act 1977
The submission that the copy purports to be the document itself because of s 5 of the Evidence Act 1977 requires little consideration because no matter what other inferences one may draw from the copy it is still a copy and the best evidence rule prevents its admissions.
The effect and purpose of s 51 is best explained by some brief examples:
1. A document under consideration purports to be a Certificate of Title (ie of a certain character) issued on a certain date by and signed by the Registrar of Titles (ie to have been produced and authenticated by a person having a certain qualification) if it expressly says that it is and contains a form of words consistent with a Certificate of Title and bears a signature above a line indicating the signatory is the Registrar of Titles.
2. A copy of a document purports to be a copy (ie of a certain character, or alternatively purports another matter) if it appears to be one (eg has the words “copy only” endorsed on it (expressly represented)), or appears to be a carbon copy or photocopy (impliedly represented).
3. Taking the benefit of the provision the court might assume that the document was a copy of a Certificate of Title, rather than the original.
Conclusion as to admissibility of copy of delegations and certificates
I conclude that there is no basis for the admission of the copies of the instruments of delegation and rule that they are inadmissible. That being so, the certificates of the respective delegates are of no evidentiary effect and I rule that they too are inadmissible.
No case to answer
I indicated before rising that it was my preliminary view that the certificates were inadmissible and there would therefore be no case for the defendant to answer. This was done on the basis that the prosecution would have failed to adduce evidence to support most of the elements of the offence.
In the circumstances no specific submissions were sought from the prosecutor (or the defendant) on the issue of whether there would be a case to answer as it was patent there is no source of evidence for the defendant to answer other that the documentary evidence which has been listed.
There being no evidence to support most of the elements of the offence I dismiss the complaint.
In doing so I reiterate that the prosecution also failed to prove service of the registered owner’s statutory declaration upon him which was a condition precedent to starting the proceedings. Further that the certificate ostensibly tendered pursuant to s 157(2)(j) State Penalties Enforcement Act 1999 is invalid for other reasons. Moreover there does not appear to be any evidence explaining why the proceedings commenced against Angus David Mackay rather than Angus Mackay, the person named in the aforesaid declaration.
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