Embelton v Scrivener - [2017] QDC 5

DISTRICT COURT OF QUEENSLAND

CITATION:

Embelton v Scrivener [2017] QDC 5

PARTIES:

STEPHEN JOHN EMBELTON
(appellant)

v

CRAIG DOUGLAS SCRIVENER
(respondent)

FILE NO/S:

BD 2577/16

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Holland Park

DELIVERED ON:

3 February 2017

DELIVERED AT:

Mackay

HEARING DATE:

20 January 2017

JUDGE:

Smith DCJA

ORDER:

1.   The appeal is allowed and the order made in this matter is set aside.

2.   The matter is remitted to the Magistrate’s Court at Brisbane for rehearing.

3.   I will hear the parties on the question of costs.

CATCHWORDS:

TRAFFIC LAW- OFFENCES- Evidence- Driving in breach of specific speed limits- Proof of offence- whether delegation validly delegated power to certify exhibits

Acts Interpretation Act 1954 (Q) ss 14A, 27A
Justices Act 1886 (Q) s 222
State Penalties Enforcement Act 1999 (Q) ss 157, 160, schedule 2
State Penalties Enforcement Regulation 2014 (Q) reg 5 schedule 1.
Transport Operations (Road Use Management- Road Rules) (Q) s 20

Hammercall Pty Ltd v Minister for Transport & Main Roads & Ors [2015] QSC 114
Kosteska v Magistrate Manthey and Anor [2013] QCA 105
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Ashby [2010] 25 VR 107
Teelow v Commissioner of Police [2009] 2 Qd R 489

COUNSEL:

Mr T Corsbie for the appellant
No appearance for the respondent

SOLICITORS:

Public Safety Business Agency for the appellant
No appearance for the respondent

Introduction

This is an appeal against the decision of the Magistrates Court at Holland Park on 2 June 2016 to dismiss a charge of speeding against the respondent.

The appeal is pursuant to s 222 of the Justices Act 1886 (Q). In order for the appellant to succeed he must show that error occurred below.[1]
[1]Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4] per Muir JA.

The basis of the dismissal was the magistrate found there was a defect in a delegation tendered.

The appellant alleges this was an error. There are also grounds that the magistrate erred in denying the prosecution procedural fairness and erred by entering into the “arena”.

For the reasons which follow I find it unnecessary to consider the second 2 grounds.

Background

The respondent’s vehicle was alleged to have been detected travelling at 115km per hour on the Gateway Motorway at Runcorn, in excess of the 100km per hour speed limit on 28 August 2015. The detection was by a photographic device.[2]
[2]The photographs are Exhibit 1 below.

A complaint was sworn on 14 January 2016, which was served on the respondent. The matter proceeded to trial on 2 June 2016.

At the trial, in order to prove the charge, the prosecutor tendered three photographs purporting to show the vehicle travelling at 115km per hour in the relevant speed zone. Certificates were signed by Stephen Embelton, Senior Sergeant Traffic Camera Office, and importantly, an instrument of delegation (Exhibit 7) signed by the Chief Executive of the Department of Transport and Main…

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 Embelton v Scrivener

Details

AGLC: Embelton v Scrivener [2017] QDC 5
Case: [2017] QDC 5
Decision Date: 3 February 2017

CaseChat Overview and Summary

The appellant, Mr. Embelton, has appealed against a conviction for driving in breach of specific speed limits, contending that the evidence presented at his trial was insufficient to prove the offence. The case was heard in the Magistrates Court at Brisbane before Magistrate Scrivener and has now reached the Queensland Court of Appeal. The central issue before the court was whether the evidence was legally sufficient to prove that the offence occurred and whether the power to certify the evidence was validly delegated. The appellant argued that the statutory framework governing the delegation of powers did not allow for the delegation of the power to certify evidence and that this was a critical error in the proceedings.

The court considered whether the power to certify the evidence had been validly delegated under the Acts Interpretation Act 1954 and the Justices Act 1886. It was determined that the delegation was not valid as it did not adhere to the statutory requirements, rendering the evidence inadmissible. This was a significant legal issue as it directly impacted the validity of the conviction. The court further examined whether the error was a fundamental one that required the conviction to be quashed. The court found that the invalid certification of evidence was indeed a fundamental error and led to the quashing of the conviction.

Consequently, the appeal was allowed. The conviction was set aside, and the matter was remitted to the Magistrates Court at Brisbane for a rehearing. The court recognised the importance of the statutory framework and the need for strict adherence to legislative requirements. The court will consider the question of costs at a later date, allowing the parties to present their submissions on the matter. This decision underscores the necessity for precise compliance with legislative mandates in the certification of evidence in traffic law proceedings.

Orders

Orders of the court

1. The appeal is allowed and the order made in this matter is set aside.

2. The matter is remitted to the Magistrate’s Court at Brisbane for rehearing.

3. I will hear the parties on the question of costs.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Embelton v Scrivener [2017] QDC 5
PARTIES:	STEPHEN JOHN EMBELTON (appellant) v CRAIG DOUGLAS SCRIVENER (respondent)
FILE NO/S:	BD 2577/16
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Holland Park
DELIVERED ON:	3 February 2017
DELIVERED AT:	Mackay
HEARING DATE:	20 January 2017
JUDGE:	Smith DCJA
ORDER:	1. The appeal is allowed and the order made in this matter is set aside. 2. The matter is remitted to the Magistrate’s Court at Brisbane for rehearing. 3. I will hear the parties on the question of costs.
CATCHWORDS:	TRAFFIC LAW- OFFENCES- Evidence- Driving in breach of specific speed limits- Proof of offence- whether delegation validly delegated power to certify exhibits Acts Interpretation Act 1954 (Q) ss 14A, 27A Justices Act 1886 (Q) s 222 State Penalties Enforcement Act 1999 (Q) ss 157, 160, schedule 2 State Penalties Enforcement Regulation 2014 (Q) reg 5 schedule 1. Transport Operations (Road Use Management- Road Rules) (Q) s 20 Hammercall Pty Ltd v Minister for Transport & Main Roads & Ors [2015] QSC 114 Kosteska v Magistrate Manthey and Anor [2013] QCA 105 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Ashby [2010] 25 VR 107 Teelow v Commissioner of Police [2009] 2 Qd R 489
COUNSEL:	Mr T Corsbie for the appellant No appearance for the respondent
SOLICITORS:	Public Safety Business Agency for the appellant No appearance for the respondent