Dixon v LeKich

Case [2010] QCA 213

SUPREME COURT OF QUEENSLAND

CITATION:

Dixon v LeKich [2010] QCA 213

PARTIES:

DIXON, Jeffrey Arthur
(respondent/applicant)
v
LEKICH, Bilyana
(appellant/respondent)

FILE NO/S:

CA No 144 of 2009
DC No 2702 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Criminal)

ORIGINATING COURT:


District Court at Brisbane

DELIVERED ON:

13 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

4 May 2010

JUDGES:

McMurdo P and Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused

CATCHWORDS:

EVIDENCE – BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE – PRESUMPTIONS – OF REGULARITY – WHERE PERSONS ACTING IN PUBLIC CAPACITY – DUE APPOINTMENT – where the applicant proceeded against the respondent for a speeding offence – where the prosecution relied on documentary evidence including two photographs – where each photograph bore a certificate signed by the applicant as a duly authorised delegate of the Commissioner – where the respondent did not object to the admission of the photographs – where the magistrate found the respondent guilty – where the respondent appealed to the District Court – where the primary judge held that the magistrate erred in admitting the photographs into evidence, allowed the appeal, set aside the conviction and ordered a verdict of acquittal be entered – where the applicant sought leave to appeal – where the applicant argued that the primary judge erred in failing to apply the presumption of regularity and in holding that the photographs were inadmissible – whether the presumption of regularity should have been applied to infer that the applicant was the object of a valid delegation by the Commissioner – whether the photographs were admissible in the absence of admissible evidence of a valid delegation

Acts Interpretation Act 1954 (Qld), s 27A
Police Service Administration Act 1990 (Qld), s 4.10(1), s 10.12(4)
Transport Operations (Road Use Management)Act 1995 (Qld), s 59(c), s 120(2)

Cassell v The Queen (2000) 201 CLR 189; [2000] HCA 8, cited
Day v The Queen (1984) 153 CLR 475; [1984] HCA 3, cited
Dillon v The Queen [1982] AC 484, cited
Huth v Petersen, ex parte Petersen [1975] Qd R 340, cited
Impagnatiello v Campbell (2003) 6 VR 416; [2003] VSCA 154, cited
Knox County v Ninth National Bank of City of New York (1893) 147 US 91; [1893] USSC 8, cited
Lekich v Dixon [2009] QDC 111, cited
MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46, cited
McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835; [1906] HCA 1, cited
Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154, cited
Page v South Australia [1997] SASC 6244; (1997) 95 A Crim R 25, cited
Pertl v Kahl (1976) 13 SASR 433; (1976) 31 FLR 380, cited
R v Cox [1986]…

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AGLC
Dixon v LeKich [2010] QCA 213
Case
[2010] QCA 213
Decision Date

CaseChat Overview and Summary

In the matter of Dixon v LeKich, the appellant sought to appeal a decision of the District Court of New South Wales, which had overturned a conviction for speeding. The primary judge had ruled that photographs, which were key evidence in the case, were inadmissible due to the absence of proof that the appellant, who signed the certificates attesting to the photographs' authenticity, was duly authorised to do so by the Commissioner. The respondent had not contested the admissibility of the photographs in the original proceedings. The appellant contended that the presumption of regularity should have been applied, presuming the validity of the delegation from the Commissioner to the appellant, and that the primary judge was wrong in ruling the photographs inadmissible without additional evidence of a valid delegation.

The court considered whether the presumption of regularity should apply in this context, which would infer that the appellant had a valid delegation from the Commissioner, and if the photographs could be admitted into evidence without additional proof of this delegation. The appellant argued that the presumption should be applied, and that the primary judge should not have excluded the photographs without evidence of a valid delegation. The court examined the nature of the presumption of regularity and its application to officials acting in public capacity, the weight of the respondent's failure to object to the photographs' admissibility, and the effect of the respondent's silence on the presumption.

The court held that the presumption of regularity did not apply in this instance to infer the validity of the delegation because the respondent had not objected to the photographs' admissibility and had not raised any issue concerning the appellant's authority. The court found that the primary judge was correct in ruling that the photographs were inadmissible in the absence of evidence to prove that the appellant was the object of a valid delegation by the Commissioner. The presumption of regularity could not be applied to overcome the lack of evidence in this case. Therefore, the court concluded that the primary judge's decision was correct and dismissed the appeal, upholding the orders made by the District Court.

Orders

Orders of the court

Application for leave to appeal refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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