Police v Martin
[2009] QMC 16
•19 March 2009
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Martin [2009] QMC 16
PARTIES:
POLICE
(prosecution)
v
RYAN ANTHONY MARTIN
(defendant)
FILE NO/S:
MAG119923/08(5)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge – Summary Hearing
ORIGINATING COURT:
Magistrates Court at Townsville
DELIVERED ON:
19 March 2009
DELIVERED AT:
Townsville
HEARING DATE:
23 February 2009
MAGISTRATE:
Verra LP
ORDER:
I find the defendant not guilty
CATCHWORDS:
TRAFFIC LAW – LICENCING OF DRIVERS – disqualification of drivers licence for high speed offence – service of notice of suspension – whether notice was served in time
Transport Operations (Road Use management) Act 1995, s 30A
COUNSEL:
Greggery for defendant
SOLICITORS:
Prosecution appeared on own behalf
O’Shea & Dyer for defendant
The defendant is charged that on 22 June 2008 at Townsville in the Magistrates Courts District of Townsville in the State of Queensland he did drive a motor vehicle namely a car on a road namely Goldring Street Townsville the said defendant not being at that time the holder of a driver licence authorising him to drive that vehicle on that road and further at the time of committing the offence the said defendant being a person to whom the provisions of section 78(3)(d) of the Transport Operations (Road Use management) Act 1995 (the Act) applied, was disqualified from holding or obtaining a driver licence.
At the completion of the summary hearing and submissions on 23 February 2009, I remanded the defendant to 26 February 2009 to deliver my decision and on that date I informed the parties that I required further time to prepare my decision. Since that date the prosecution and the defence have provided further submissions and those written submissions have been marked exhibits 7 and 8 respectively.
By virtue of s 78(6)(b)(ii) of the Act disqualified driver means “a person who is disqualified from holding or obtaining a driver licence because the person was convicted of an offence against the Transport Operations (Road use management – Road Rules) Regulation 1999 , section 20, for driving more than 40 km/h over the speed limit.” Schedule 4 of the Act provides that convicting a person includes the person paying a penalty under the State Penalties Enforcement Act 1999.
The prosecution case, simply stated, is that the Chief Executive suspended the defendant’s driver licence for the period starting on 21 January 2008 and ending on 20 July 2008 and that this suspension was effected by virtue of written notice given to the defendant in accordance with s 30A of the Transport Operation (Road use Management – Driver Licensing) Regulation 1999 (the Regulation). The defendant admits that he was driving a motor vehicle on 22 June 2008.[1]
[1] Exhibit 1
The onus lies on the prosecution to prove all elements of the charge beyond reasonable doubt. The defendant makes several admissions which are set out in exhibit 1. There is no dispute that the defendant was driving a motor vehicle as alleged in the charge. The defence maintains that the provisions of s 30A of the Regulation have not been complied with and accordingly the purported suspension of the licence is ineffective. I accept the basic proposition that compliance with s 30A of the Regulation is mandatory and that in the event of non compliance, the purported suspension is ineffective. The Department of Transport took the same view in an appeal relating to the validity of purported cancellation of a licence pursuant to a comparable provision of the Regulation. In Chief Executive Department of Transport v Glasgow & Anor [2001] QSC 378 at para 16, Thomas JA stated - “It is conceded on behalf of the Department that compliance with s 24 is mandatory, and that in the event of non-compliance the purported cancellation of the licence is ineffective.”
The statutory procedure for suspension of a person’s driver licence is set out in s 30A of the Regulation which states:
30A Queensland driver licence holder
(1) If the person holds a Queensland driver licence, the licence is suspended for 6 months starting on –
(a) the day stated in the notice given under subsection (2); or
(b) if the person notifies the Chief Executive that the person wants the suspension to start earlier than the day stated in the notice – the day, not before the day on which the person gives the notice to the Chief Executive, chosen by the person.
(2) The Chief Executive must give the person a written notice stating –
(a) the person’s Queensland driver licence is suspended for 6 months starting on a stated day; and
(b) if the licence is an open or provisional licence – that the person may be eligible to apply for a special hardship order under part 6C in relation to the suspension.
(3) The day stated must be at least 21 days after the date of the notice.
The requirement to give written notice requires compliance with s 39 and s 39A of the Acts Interpretation Act1954.[2] In Statutory Interpretation in Australia the author states:
“The Interpretation Act provision is, of course, only presumptive and can therefore be displaced if there is proof of time of delivery: Re ICI Australia Operations Pty Ltd and Development Allowance Authority (1994) 33 ALD 153.”[3]
[2] Coughlin v. Curran [2008] QDC 066
[3] Statutory Interpretation In Australia, Pearce & Geddes, Sixth Edition 2006 p 234
And further:
“It must also be borne in mind that the presumption only arises where it is established that the document has been posted. In Re Secretary, Department of Community Services and Boyd (2003) 74 ALD 530 proof was only available of the letter in question having been computer generated. In the absence of any evidence that it was posted, the Administrative Appeals Tribunal was not prepared to apply the statutory presumption of delivery.”[4]
[4] Ibid p 235
Kym McIntyre, a Senior Advisor (Service Management) in the employ of Queensland Transport gave evidence for the prosecution. By Instrument of Delegation dated 15 May 2008[5], Ms McIntyre was appointed an authorised delegate of the Chief Executive of the Department of Transport. Paragraph 7 of that instrument states that the instrument commences on the date that it is signed.
[5] Exhibit 4
Section 60 of the Regulation, which is headed ‘Evidentiary Aids’ provides that a certificate stating any of the matters listed within subsection (2) is “evidence of the matter”. In a certificate[6] tendered pursuant to s 60(2) of the Act, Ms McIntyre states - “Written notice was given to Mr Ryan Anthony Martin by sending it by post on 24 December 2007 to [address]. This was the address last known by Queensland Transport to be the defendant’s address for all correspondence and service of notices at the time of the offence.” A copy of the Notice of Driver Licence Suspension for Speeding Offence is annexed to this certificate as Appendix One and states that the period of suspension starts on 21 January 2008 and ends on 20 July 2008.
[6] Exhibit 5
Section 95 of the Evidence Act 1977, which is headed ‘Admissibility of statements produced by computers’ provides that where direct oral evidence of a fact would be admissible, such evidence may be admitted by way of a statement in a certificate and “shall be evidence of the matters stated in the certificate”. The section sets out the conditions which must be satisfied for such certificate to be admissible. In a certificate tendered pursuant to this section[7], Ms McIntyre states, among other things, that she regularly used the subject computer during the period 21 January 2008 to 13 October 2008 and that the document attached to the certificate and marked “A” identifies that a High Speed Suspension Notice was sent by mail to the defendant. The date 24 December 2007 appears under the heading “Ref Date” on that attachment. Ms McIntyre stated that this annexure was printed out on 23 February 2009, the date of this trial.
[7] Exhibit 2
Evidence admitted under such statutory provisions is ‘prima facie’ evidence of the matters stated in the absence of evidence to the contrary and “....the evidence to the contrary need not be evidence adduced by the defendant: it may be evidence in the prosecution case.”[8]
[8] R v Shetty [2004] QCA 225
In cross examination Ms McIntyre, after perusing a document shown to her by Mr Greggery, conceded that it was “quite possible” that the suspension notice may not have been posted until Thursday 27 December 2007 or Friday 28 December 2007. That passage of evidence is as follows:
Mr Greggery:
Q. You would accept that it is quite possible if the notice was generated on the 24th which is the earliest it could have been generated, it might not have been posted until Thursday or Friday in which case it would not arrive in Townsville until sometime the following day, even putting aside the Christmas rush on Australia Post.
M/s McIntrye:
A. Yes
The use of the expression ‘quite possible’ is significant and the meaning ordinarily conveyed by such an expression is very different to that conveyed by the use of the use of the word ‘possible’ alone or expressions such as ‘mere possibility’ or ‘remote possibility’. Reference to the dictionary definition[9] of the words ‘quite’ and ‘possible’ amply demonstrates this:
Possible - “1.that may or can be, exist, happen, be done, be used etc; 2. that may be true or a fact, or perhaps be the case, as something concerning which one has no knowledge to the contrary.”
Quite – “1. completely, wholly or entirely; 2. actually, really, or truly; 3. to a considerable extent or degree; 4. an expression of agreement.”
[9] The Macquarie Concise Dictionary 2nd Edition 1988
This is not a mere exercise in semantics. In Perron v. Seiler[10], a South Australian Supreme Court of Appeal case concerning the prima facie presumption of accuracy of the speedometer of a police motorcycle, Miller J referred to the following passage of the judgment of Anderson J in Harling v. Hall (1997) 94A Crim R 437 at 443:
“A finding of guilt is not to be reached by simply rejecting the case put forward by the defendant. There cannot be a guilty verdict unless the court of trial accepts, that is, actually and positively believes to the required standard, the evidence presented by the prosecution on matters critical to proof of guilt. When a defendant gives exculpatory evidence (and it is trite to say that he or she need not do so) the question is not so much whether it is to be preferred to the prosecution evidence but whether, in the light of it, the prosecution has proved its case. Even if the court does not positively believe the defendant’s evidence and in that sense does not ‘prefer’ it, the question remains whether or not on the whole of the evidence the guilt of the defendant has been proved beyond reasonable doubt. This is not a mere exercise in semantics. There is always a real possibility that while the evidence of the prosecution witnesses may be generally preferred to that of the defence witnesses, the evidence as a whole still leaves a reasonable doubt as to the guilt of the defendant. For example, a defendant may give an account which sounds implausible and unlikely, yet the court may be unable to rule it out. The defendant may not go into evidence at all, yet the prosecution evidence may fail to satisfy the court to the required degree.”
[10] (2000) 31 MVR 190 at 193
It seems clear enough to me that a cross-examiner may legitimately adopt this procedure, although the authorities and commentaries suggest that, after the witness reads the document or those portions of it to which the witness was referred, the question asked of the witness should have been to the effect of whether she adhered to her earlier evidence, namely that the notice had been posted on 24 December 2007.[11] It is a fine but significant point and no objection was made during the cross-examination. What is not clear to me is to what extent, if at all, a re-examiner is permitted to question the witness further on the issue. Whether or not the prosecution were entitled to pursue the matter further in re-examination in this case is a moot point. The prosecutor did not seek to do so. The charge against the defendant is to be decided on the evidence as it has been presented.
[11] R v Beddington [1970] Qd R 353 at359-360; Trade Practices Commission v TNT Management Pty Ltd and Others (1984) 56 ALR 647 at 682; Starke “Cross-examination Based on Documents” (1945) 19 ALJ 262; McHugh “Cross-examination on Documents” (1985) 1 Aust Bar Rev 51
Ms McIntyre’s concession in cross examination was not qualified in any way. It could in no way be described as having been given “hesitatingly and reluctantly”[12] and was sufficient, in my view, to rebut the presumption raised in the s 60 certificate, namely that the written notice was posted on 24 December 2007. Consequently, in my view, in light of that evidence, the prosecution have not excluded the real possibility that the written notice was posted as late as 28 December 2007.
[12] JRS Forbes, Evidence Law in Queensland 7th Ed, Law Book Company 2008 page 223 para 19.21
Section 30A of the Regulation provides that written notice must be given to the person stating that the driver licence is suspended for 6 months starting on a stated day and that the day stated must be at least 21 days after the date of the notice. By virtue of s 39A(2) of the Acts Interpretation Act 1954, the giving of the written notice “is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.” The use of an expression such as ‘is taken to have been’ is a variant on the expression ‘deemed’ and is to be interpreted in the same manner.[13]
[13] Statutory Interpretation in Australia, Pearce & Geddes, Sixth Edition 2006 p 149 para 4.36
“It is the submission of the Prosecution that there is no evidence to the contrary that the notice to Martin was given on 24 December 2007, the actual date of the notice being one and the same.”[14] In Wallace v Anti-Discrimination Board of NSW [1999] NSWSC 1052 (11 October 1999), {para 13 } Dowd J stated, citing the Macquarie Dictionary:
“ ‘notification’ … provides a primary meaning of … ‘the act of notify, making known or giving notice’, and a secondary meaning of ‘a formal notifying or informing’. The third meaning is ‘a notice’. The various meanings of ‘notice’ in that dictionary connote, as does the definition of ‘notification’, the receipt of knowledge or the bringing to attention of the recipient.”
[14] Exhibit 7, final paragraph
Accordingly, in my view, the expression ‘date of the notice’ in s 30A(3) of the Regulation can only be interpreted as the date of ‘deemed’ delivery of the written notice in the ‘ordinary course of post.’
In Bowman v Durham Holdings P/L[15] Stephen J stated:
“As was said by Lord Esher M.R. in Kemp v. Wanklyn [1894] 1 Q.B. 583 at 585 , in dealing with the meaning of ‘in the ordinary course of post’: ‘The Post Office is the authority which under its statutory powers, determines the ordinary course of the post – that is to say, how the letters shall be carried, and at what time they shall, as a general rule, be delivered within any particular district to the persons taken as a body who reside in that district.’ ”
[15] (1973) 131 CLR 8 at 14
As to what then is the actual date of the deemed delivery, the answer in my view, is to be found in the Australian Postal Corporation (Performance Standards) Regulations 1999[16] which provides for a delivery time of “2 business days after day of posting”, where the letter is for delivery intrastate and outside the city or town of lodgement.
[16] Section 6 Accuracy and speed of delivery
By virtue of s 38 of the Acts Interpretation Act 1954, both the date of the notice, which for reasons stated is the date of the deemed delivery; AND the day stated in the notice, are not to be included when reckoning the period of 21 days for the purposes of s 30A of the Regulation. As Ms McIntyre agreed that is was “quite possible” that the notice of suspension was not posted until as late as Friday 28 December 2007, two business days after that date would be 2 January 2008. That being the case, both 2 January 2008 and 21 January 2008 are to be excluded when reckoning the period.
As the period between those two dates is only 18 days I find that the Chief Executive has not complied with the mandatory requirements of s 30A and that the purported suspension is ineffective. On that basis alone, I find that the prosecution has failed to prove beyond reasonable doubt that the defendant was not the holder of a driver licence and that he was disqualified from holding or obtaining a driver licence on the 22 January 2008.
Ms McIntyre’s evidence was to the effect that the high speed suspension notices are computer generated and posted on that same day and that the date for the commencement of the suspension period (the ‘stated day’) is 28 days from the date of posting. Whatever the nature and contents of the document that lead to Ms McIntyre’s concession that it was “quite possible” that the notice was not posted until as late as 28 December 2007, if Ms McIntyre’s interpretation of that document is correct, I would respectfully suggest that the Chief Executive take whatever steps are necessary to ensure that the date of posting can be established to the required degree of certainty where the Department of Transport is put to proof on that issue. The importance of such certainty is highlighted when the date of posting relied upon is, as was the case here, immediately prior to a protracted holiday period.
As Mr Greggery in his closing address has raised other grounds in respect of which he says the prosecution has failed to discharge their onus of proof, I will deal briefly with those matters. Those grounds were - Firstly, there is no evidence of ‘prepaying’ post as required by s 39A of the Acts Interpretation Act 1954; Secondly, the defendant’s traffic history[17] shows that a ‘DEM PTS WARNING LETTER’ was posted on 24 December 2007; Thirdly, the period stipulated in the s 95 certificate[18] does not cover the date on which the High Speed Suspension Notice was purported to have been sent, namely 24 December 2007.
[17] Exhibit 6
[18] Exhibit 2
As to evidence of pre paid post, Cross on Evidence[19] lists numerous facts under the heading ‘Notorious facts judicially noticed without enquiry’. Whilst the fact that government departments such as the Department of Transport pay postage is not listed, I do not consider that the list is exhaustive and I am prepared to accept that it is implicit in the statement in the Section 60(2) certificate that the written notice was sent by post, that the postage was paid.
[19] Cross on Evidence, J D Heydon Volume 1 Butterworths 1996 at p 3010 para 3020
The traffic history[20] entry shows that a ‘DEM PTS WARNING LETTER’ was posted on 24 December 2007. Immediately above that entry is an entry ‘High Speed Suspension Until 20/07/2008’ with a further date of 21/01/2008 adjacent to that entry in a column headed ‘Offence/Actn Date’. This reference to the High Speed Suspension simply corroborates the matters stated in the s 60 Certificate, namely that the defendant was given a written notice stating that the period of suspension of his driver licence starts on 21 January 2008. It may well be that the defendant was also posted a demerit points warning letter on 24 December 2007.
[20] Exhibit 6
The s 95 Certificate is of little evidentiary value. Paragraphs 2 and 3 of the certificate, together establish that during the period 21 January 2008 to 13 October 2008, the relevant computer was operating properly and was used “to store and process information for the purposes of licensing and registration carried on over the said period.” Ms McIntyre’s evidence was that annexure “A” was printed on 23 February 2009, the date of this trial. However, the fact that the prosecution was ‘tending to establish’ through the s 95 Certificate was that written notice of the driver licence suspension was given by sending it by post to the defendant on 24 December 2007. The s 60 Certificate is “evidence of (that) matter.” Coughlin v Curran[21] was concerned with proof of service under an analogous provision of the Regulation[22] and I note that in that summary hearing[23] no section 95 certificate was tendered and the section 60(2) certificate was relied upon to establish service. No issue was taken on that point, per se, on appeal, nor was it the subject of any adverse comment in the appeal decision.
[21] See footnote 2
[22] Service of Notice to Choose under section 25 Transport Operations (Driver Licensing) regulation 1999
[23] Rockhampton Magistrates Court 15 August 2007 (decision date 30 August 2007) MAG-00004131/07(0)
For reasons stated, I am not satisfied that the prosecution have proven all elements of the charge beyond reasonable doubt. I find the defendant not guilty.
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