Harley v Gold Coast City Council
[2014] QDC 138
•17 June 2014
DISTRICT COURT OF QUEENSLAND
CITATION:
Harley v Gold Coast City Council [2014] QDC 138
PARTIES:
SANDRA HARLEY
(Appellant)and
GOLD COAST CITY COUNCIL
(Respondent)FILE NO:
306 of 2013
PROCEEDING:
Appeal
DELIVERED ON:
17 June 2014
DELIVERED AT:
Southport
HEARING DATE:
11 June 2014
JUDGE:
Judge C F Wall QC
ORDERS:
1. Time for appealing extended.
2. Appeal allowed.
3. Appellant’s conviction and orders fining the appellant and ordering her to pay witness expenses and costs set aside.
4. Complaint dismissed.
LEGISLATION:
Transport Operations (Road Use Management – Road Rules) Regulation 2009, section 208
Transport Operations (Road Use Management) Act 1995, section 107
State Penalties Enforcement Act 1999, section 17CASES:
Durrant v Schulz & Anor [2001] QCA 345
R v Bilick & Starke (1984) 11 A. Crim R. 452
* 669 Polydor Ltd & RSO Records Inc v Harlequin Record Shop Ltd & Simons Records Ltd [1980] 1 CMLR 669CATCHWORDS:
JUSTICES – OFFENCES – EVIDENCE – TRAFFIC – parking offence – conviction of appellant – owner deemed to have committed offence – deeming provisions – whether presumption rebuttable.
SOLICITORS:
Appellant – self represented
Respondent – Mr N Hatcher, Woods Hatcher Solicitors
Introduction
The 14th of December 2011 was a bad day for the appellant. As a result of what her mother did she was convicted of a parking offence committed by her mother, fined $70, ordered to pay witness expenses and court and professional costs of $1,685 and faces the loss of her drivers licence by the State Penalties Enforcement Registry for non-payment of those amounts notwithstanding this appeal.
The appeal is against the appellant’s conviction in the Southport Magistrates Court on 10 December 2012 of a parking offence contrary to s 208(1) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (“the Regulation”).
Facts
On 14 December 2011 Mrs Maria Huri, the appellant’s mother parked a car owned by the appellant outside their house in Heeb Street, Bundall.
At 2.33pm on that day Mr John Carlson, a council local law enforcement officer observed the vehicle parked as shown in photos, Exhibit 1. It was parked at an angle on the nature strip generally facing the direction in which vehicles ordinarily travel. It completely obstructed or blocked the nature strip.
Mr Carlson “issued an infringement notice for parking other than parallel on a two-way road”. This is an offence against s 208(1) and (3) of the Regulation.
The prescribed penalty – $70 – was not paid and in due course the appellant, as owner of the vehicle, was served with a complaint and summons charging her with an offence against s 208(1) but of a different type to that described in the infringement notice.
The complaint alleges that she was the driver of the vehicle (she was not) and alleged that she parked the vehicle on a road other than in accordance with s 208(1) in that
(a) the vehicle was parked in a position where it did not face in the direction of travel of vehicles in the marked lane or line of traffic on, or next to, the part of the road where the driver parks contrary to s 208(2)(a) of the Regulation; and
(b) the vehicle was parked in a position whereby the path of other vehicles or pedestrians was obstructed contrary to s 208(8) of the Regulation.
For present purposes it was accepted that only one offence was charged which was evidenced in one or more ways. No objection was taken before the Magistrate to the form of the complaint.
The uncontested evidence in the Magistrates Court was that it was Mrs Huri who parked the vehicle.
The Regulation
Sections 208(1), (2)(a), (3) and (8) are in the following terms
“208 Parallel parking on a road (except in a median strip parking area)
(1)A driver who parks on a road (except in a median strip parking area) must position the driver’s vehicle in accordance with subsections (2) to (8).
Maximum penalty—20 penalty units.
(2)The driver must position the vehicle to face—
(a)in the direction of travel of vehicles in the marked lane or line of traffic on, or next to, the part of the road where the driver parks;
(3)If the road is a two-way road, the driver must position the vehicle parallel, and as near as practicable, to the far left side of the road.
(8)The driver must position the vehicle so the vehicle does not unreasonably obstruct the path of other vehicles or pedestrians.”
The offence is thus one committed by the driver who parks or positions the vehicle and the complaint alleged this person to have been the appellant.
The Decision of the Magistrate
The Magistrate said
“The only evidence that was placed before me from the council is the evidence of Mr Carlson, who was a law enforcement officer, and who gave evidence that on the 14th of December 2011in Heeb Street he observed a vehicle which was illegally parked in that street. In doing so he relied upon section 208 of the Transport Operations Road Use Management Act, and in particular, two subsections: subsection 3 and subsection 8. Subsection 3 dealing with the fact that if the road is a two way – road and the evidence before me is that it is a two way road – then the vehicle must be parked parallel and as near as practicable to the far left side of the road.
It is clear from exhibit 1, which are the photographs tendered by the council, that the vehicle is not parked in a parallel – in a parallel way. That is, parallel to the road. It is, indeed, parked at an angle of – as Mr Carlson gave evidence – of about 45 degrees to the roadway. More importantly, it seems to me, is the breach of subsection 8 of that section, which says that the driver must position the vehicle so that it does not unreasonably obstruct the path of other vehicles or pedestrians. It is perfectly clear from exhibit 1 that the vehicle was parked in such a way that it clearly obstructed the right of passage of pedestrians along the footpath of Heeb Street, adjacent where the vehicle is stationary.
The exhibit 1 clearly demonstrates this. In all of the circumstances I am satisfied that the complaint has been proved by the council beyond a reasonable doubt. I am certain – I am also satisfied, from exhibit 2, that the defendant is the owner of the vehicle: 013 LFQ, the vehicle which is shown in exhibit 1. In those circumstances the defendant is convicted of the complaint as charged.”
The Magistrate convicted the appellant of the offence as a result of contravention of s 208(3) (which was not particularised or alleged against her) and s 208(8) (which was particularised). No finding was made in respect of the parking said to have contravened s 208(2)(a) (which was also particularised).
The Magistrate did not find, and nor could he, that the appellant was the driver of the vehicle.
How was the appellant convicted?
The Magistrate said he did not need to hear from Mr Hatcher.
Before me, Mr Hatcher referred to what he said were the “owner onus provisions”, namely s 107 Transport Operations (Road Use Management) Act 1995 (“TORUM”) and s 17 State Penalties Enforcement Act 1999 which are in the following terms
“107 Owner responsible for offence
Subject as hereinafter provided, where any offence is committed in relation to the parking or stopping of any vehicle, the person who at the time of the commission of the breach was the owner of the vehicle shall be deemed to have committed that offence and may be proceeded against and shall be punishable accordingly.17Liability 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….a known user declaration…. for the vehicle for the offence.
The Magistrate did not refer to either of these provisions.
Section 17 cannot help because the appellant was not prosecuted for an offence against s 208(1) and (3) which was the offence for which the infringement notice was issued. Curiously she was prosecuted for the offence evidenced by other parking acts said to have contravened s 208(1).
In any event even if she had been prosecuted for the infringement notice offence the fact was that she was not the driver of the vehicle.
In Durrant v Schulz & Anor [2001] QCA 345 the respondents were convicted of a parking offence. They both owned the vehicle but only the first respondent was the driver. They were issued with an infringement notice, didn’t pay, were prosecuted and both were convicted. The second respondent was convicted only because of the deeming provision of s 98E(1) of the Justices Act (1886) (which is now s 17(1) of the State Penalties Enforcement Act and with the same wording). Both sections are identical. Section 98E(3) is now s 17(3).
In relation to s 98E the court said
“[18] Thus she ‘is taken to have committed the offence even though the actual offender may have been someone else’ (s 98E(1)). If she made and gave to the Council a known user declaration within 28 days (s 98H) she could not be taken to have committed the alleged offence (s 98E(3), but as she did not complete such a declaration, ss 98E(3) and 98H(5) have no application. The issue then is whether, in the absence of any of the declarations set out in s 98E(3), the presumption in s 98E(1) is able to be rebutted by clear accepted evidence that the owner was not the offender. It does not seem that this point has been previously considered at appellate level either in this Court or the District Court.
[19] An offence under s 12F(1) of the Act is punishable by 40 penalty units or six months imprisonment. It is a penal provision which must be construed strictly. Section 98E(1) Justices Act does not clearly and unequivocally state that the presumption that the owner is taken to have committed the offence is conclusive or irrebuttable but for the circumstances set out in s 98E(3) or s 98H(5). In the absence of the clearest words to that effect, it should not be so construed. A strict approach can be seen even in the construction of statutes which expressly provide that something is to be conclusive evidence of a particular issue (Carroll v Shillinglaw [1906] 3 CLR 1099, 1108, 1124; Baroness Wenlock v Riverdee Co [1888] 38 ChD; Jennings Industries Ltd v Commonwealth (1984) 57 ACTR 5, 26-28; Sharpe v Goodhew [1990] 96 ALR 251, 265-267). Stronger words than those in s 98E(1) would be necessary in order to preclude a person from defending himself or herself against such a prosecution. Furthermore, the terms of s 98E(2) would seem to be capable of direct application to the present case with the first respondent being identified as ‘the actual offender’ and the second respondent being identified as an ‘owner’. The concluding words of that subsection are, ‘if … 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.’
[20]In this case the magistrate accepted the uncontested evidence that the second respondent was not the offender and the evidentiary presumption established by s 98E(1) Justices Act was overturned. The second respondent should not have been convicted of the offence for which, on clear, uncontested evidence, the first respondent was solely responsible; the Magistrates Court order as to the second respondent cannot stand.”
Realistically s 107 of TORUM is not very different to s 17. Like s 17 it does not clearly and unequivocally state that the presumption that the owner is deemed to have committed the offence is conclusive or irrebuttable and “in the absence of the clearest words to that effect, it should not be so construed”. “Stronger words” than those in s 107 “would be necessary in order to preclude a person from defending himself or herself from such a prosecution”.
It is clear from the decision in Durrant that the mere absence from a deeming provision of words such as “unless the contrary is proved” does not make the presumption conclusive or irrebuttable.
In addition s 107 does not deem the owner to be the driver of the offending vehicle and in the present case the appellant was charged as the driver, not the owner deemed to have committed the offence, and it was accepted that she was not the driver.
In R v Bilick & Starke (1984) 11 A. Crim R. 452 at 460-461 King CJ said a construction of a presumption leading to the conviction of a person of a crime “contrary to the truth of the matter” is to be adopted only if there is no reasonable alternative construction.
To similar effect is the statement by Robert McGarry VC in *669 Polydor Ltd & RSO Records Inc v Harlequin Record Shop Ltd & Simons Records Ltd [1980] 1 CMLR 669 at 673 that the meaning and application of a deeming provision is subject to the fundamental rule that
“the hypothetical must not be allowed to oust the real further than obedience to the statute compels.”
A court should be slow to convict a defendant of an offence where it is accepted the defendant did not in fact commit the acts said to constitute the offence.
It is for these reasons that on the 11th of June 2014 I ordered that the time for appealing be extended, the appeal be allowed, the appellant’s conviction and the orders fining the appellant and ordering her to pay witness expenses and costs be set aside and the complaint be dismissed.
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