Police v Mytton
[2012] QMC 14
•27 April 2012
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Mytton [2012] QMC 14
PARTIES:
POLICE
(prosecution)
v
MEYRICK DOUGLAS APLIN MYTTON
(defendant)
FILE NO/S:
MAG207147/10(9)
DIVISION:
Magistrates Courts
PROCEEDING:
Complaint
ORIGINATING COURT:
Magistrates Court at Caboolture
DELIVERED ON:
27 April 2012
DELIVERED AT:
Caboolture
HEARING DATE:
9 February 2012
MAGISTRATE:
Bucknall M
ORDER:
Charge dismissed
CATCHWORDS:
TRAFFIC LAW – DRIVER LICENCING – OFFENCES – EVIDENCE – certificates as evidence – if certificate is signed by an authorised delegate is evidence of the delegation required
COUNSEL:
Stephenson (senior constable) for prosecution
D Wells for defendant
SOLICITORS:
Prosecution on own behalf
The defendant is charged with an offence under section 78(1)&(3) of the Transport Operations (Road Use Management) Act 1995, that is driving a motor vehicle without a driver’s licence and at the time of driving the defendant’s licence was suspended under the State Penalties Enforcement Act 1999.
The matter was conducted on the papers; that is no oral evidence was adduced by either the prosecution or the defendant.
Mr Wells of Counsel who appeared on behalf of Mr Mytton indicated to the court at the outset that as there was no factual issue in dispute that he and the police prosecutor had agreed upon that course subject to the wishes of the court.
I was happy to determine the matter on that basis.
Further Mr Wells indicated that he would make submissions first, and in particular would initially be making submissions as to a no case to answer.
THE FACTS
The prosecutor outlined that at about 5.50 pm on Saturday 15 May 2010 police intercepted a Mitsubishi Magna, and spoke to the driver who is the defendant before the Court.
Police then made road side enquiries through police communications and ascertained that the defendant’s licence was SPER suspended.
The prosecutor then tendered various documents including a certificate under section 60(2) of the Transport Operations and Road Use Management Act (TORUM).
That certificate was issued by a Karen Ruth Howell, senior advisor, Caboolture Service Centre and authorised delegate of the Chief Executive of the Department of Transport and Main Roads, saying that on 15 May 2010 there was not in force a driver’s licence and that the defendant was suspended from 24 August 2008 until 17 May 2010 as a consequence of a SPER suspension.
Further the prosecutor tendered a certificate of the Registrar of SPER under section 157(3) of the State Penalties Enforcement Act 1999 (SPER) that being of Shreee Nitkiewicz being the proper officer authorised in accordance with section 161(1) of the SPER Act.
That certificate purported to be evidence of the matters contained in it, which in summary were as follows:
1. On 3 November 2005 infringement notice A0025101879 issued to the defendant was registered with SPER for enforcement.
2. On 3 November 2005 an Enforcement Order was issued to the defendant at his address. That notice was returned unclaimed.
3. On 10 July 2008 a Reminder Notice was issued to the defendant.
4. On 1 August 2008 a Notice of Intention to Suspend Driver Licence was issued to the defendant.
5. On 15 June 2010 a Reminder Notice was sent to the defendant.
6. On 14 September 2011 infringement notice number A0025101879.
The matters contained in the SPER certificate were outlined by the prosecutor.
Further, a summary from the State Penalties Enforcement Register was tendered which contained the record of the Infringement Notice having been recalled on 14 September 2011.
Also provided to the court by the police prosecutor was a SPER fine History Report.
The prosecutor said at approximately line 30 on page 7 of the transcript of these proceedings (the transcript):
“…It also shows that since 2003, he received another three traffic infringement notices, but it also shows that that one now from that ticket A0025101879 is now no longer on his SPER history which was $945. Your Honour, those are the certificates to be tendered by the prosecution.”
The prosecutor then closed the prosecution case.
Following the police closing their case Mr Wells, counsel for the defendant then submitted there was no case to answer on two grounds.
At that point he then tendered various documents on behalf of Mr Mytton. I will return to those documents and the substance of the submissions made by Mr Wells later.
The way the submissions were presented by Mr Wells they were as I understood them to be both submissions as to a no case to answer and further submissions in support of an acquittal in the event I found there was a case to answer.
NO CASE TO ANSWER
At paragraph 32 of the transcript the prosecutor indicated as follows:
“…In regards to this matter I note that we are at a stage where my friend has submitted a no case to answer…At this point technically prosecution really only have to prove that we have a prima facie case. However, in light of my friend’s submission and also to save the Court time and your Honour having to listen to everything for the second time if your Honour will permit I’ll make all submissions in one foul swoop…”
The prosecutor then submitted that on a no case to answer application the prosecution only had to prove a prima facie case that Mr Mytton was unlicensed at the time. (see page 32 of the transcript).
She went on to rely upon the Certificate from the Department of Transport that Mr Mytton did not have a drivers licence in force at the time of the offence as he was SPER suspended.
She said at page 35 of the transcript:
“…So your honour, at its simplest prosecution submit in regards to no case to answer we have proven a prima facie case that the defendant was not the holder of a current Queensland licence authorising him to drive on the roads at that time due to it being suspended by SPER.”
I indicated to the prosecutor at that time that I would make a decision on that (i.e. the no case to answer submission) and all other matters at the end of the hearing.
The prosecutor also referred me to and relied upon the decisions of Rv.Doney 171CLR at 207, May and O’Sullivan (1955) 92 Criminal Law Reports at 654 and an Attorney General’s Reference (No.1 of 1983).
I also note that later in submissions the prosecutor referred the Court to a decision of McIntosh v. Winston [2011]QCA 209.
I will address that case more fully later in this decision.
I note however that the facts in that case were somewhat similar to the one before me.
At paragraph 52 of that decision it was indicated as follows:
“…The evidentiary provisions in s 157 State Penalties Enforcement Act are wide-ranging. Two certificates were tendered under s 157 before Magistrate Nunan…They were prima facie evidence of the matters stated in them, presumably that the applicant had not paid the fines resulting in the SPER suspension and that he had been served with the relevant infringement notices and that those notices had not been withdrawn as at 3 July 2006. For the reasons already given as to the construction of the Act, the applicant did not give or produce any plausible contradictory evidence. This contention is not made out.”
DOCUMENTS TENDERED BY AND SUBMISSIONS OF MR WELLS
Mr Wells submitted that there were two grounds to be relied upon by the defendant.
He also relied upon various documents that he tendered those being:
1. A letter from the Queensland Police Service dated 6 September, 2005 signed by a Senior Sergeant Jones.
2. A letter from the Queensland police Service dated 3 October 2005 signed by a Sergeant G. W. Peake.
3. A notice of intention to Suspend drivers licence dated 1 August 2008
4. SPER history.
Those four documents were received by me and marked as Exhibit 4.
Mr Wells brought my specific attention to the letter under the hand of Senior Sergeant Garth Peake being the Superintendent of Traffic, Redcliffe District Traffic Branch, and read parts of that letter into the record and in particular:
“I am also satisfied that the officer has acted correctly and issued the infringements as a result of the information at hand at the time.
Both infringements are hereby waived and no further action is required on your part. Records have been amended accordingly”
Mr Wells went on to say (page 12 of the transcript): “So, in respect of the events of that day, the 1st of September, both the two – both the infringement notices issued at that time were withdrawn”
He went on to explain that one of the infringement notices issued on the day, i.e. 1 September 2005 had been replaced with a different infringement notice with a different number.
He went on to submit however that the correspondence from the Superintendent of Traffic indicated: “Your vehicle was in fact registered and insured on the day of interception.”
He further went on to reiterate (at page 13 of the transcript) that his client had been told that: “no further action is required by you...and the records have been amended”
Mr Wells then went on to submit that his client should not have been before the court and then went on to elaborate as to what he indicated to be the two grounds of his submissions.
THE FIRST SUBMISSION
Mr Wells submitted (at paragraph 18 of the transcript) that he wished to argue on two grounds as to why he says I should find Mr Mytton not guilty.
The first ground was: “…that as a matter of administrative law, an administrative decision which is made without jurisdiction is void, null and void, void ab initio.”
He went on to say that: “Leading into that, your Honour, there is no more fundamental proposition than that a person cannot be punished by the Courts, except for a breach of the law…”
Mr Wells then made reference to section 11 of the Criminal Code: “A person cannot be punished for doing or admitting to do an act unless the act or omission constituted an offence under the law in force when it occurred.” My client was, I would submit, not committing an offence at the time he was intercepted…”
Mr Wells later went on to say: “I do submit there is no law, and no provision in the SPER Act that entitles SPER to demand money from someone who does not owe it…”
Further he said: “There is a provision in the SPER Act that says that officers of SPER will not be liable for errors that they should make, however there is no provision which entitles them to demand money that is not theirs to demand…Section 8(2) of the SPER Act says, “In particular SPER has the following functions: (a) collecting amounts payable to SPER under this or another Act.” And then it goes on, “Administering the making of enforcement orders, taking enforcement action under this Act, and so forth. The point that I make is it does not say “collecting amounts of money that are not payable to SPER.” It says they are lawfully entitled to collect sums of money that are payable to them.”
He went on to say: “…the fine of $945, nearly a thousand dollars, which SPER demanded payment of was a fine for an offence which police say that he did not commit. The decision by SPER to de licence him for non payment was an administrative decision based on a non existent fact.”
Mr Wells then referred me to the document marked as “C” of Exhibit 4.
“That document clearly evinces an intention to deprive him of his licence on the basis of the fact that on the 1st of September he drove an uninsured class ¾ vehicle on the road, and the police say that he did not drive an uninsured class ¾ on the road.
Your Honour, I think you could reasonably take judicial knowledge of the fact that the way these things can occur sometimes is that somebody might’ve paid their money to the Transport Department but it might not have got on to the records; there’s a whole lot of reasons why it might’ve occurred, but here we have a case where the suspension was specifically for the offence which police say he did not commit
I submit that the administrative decision attested by this document is void at law. It never happened, it did not exist…”
Mr Wells then went on to refer me to several cases namely: Parker and the President of the Industrial Court of Queensland and Q-Comp (2009) QCA at page 120, Anisminic 2 AC 147, and The King v Commonwealth Rent Controller, (1947) 75 CLR 361.
In relation to the latter of those cases he submitted: “The most fundamental kind of jurisdictional error, I would submit, is where the decision maker has no power or jurisdiction to enter the field. This is referred to in the text as complete absence of jurisdiction. A text book example is where a tribunal was empowered to fix rents in furnished premises and purported to fix rents in unfurnished premises as well..”
He went on to say in this light: “My submission is that SPER had absolutely no jurisdiction to ask my client to give them a thousand dollars which he did not owe. It was an error of jurisdiction, and consequently, given that this is an offence that everybody admits that my client did not commit, the administrative decision to de licence was void, and void ab initio…So as a matter of law when my client was intercepted and charged with driving unlicensed, he was at law a licensed driver, because the administrative acts of SPER predicated as they were on an error, a jurisdictional error, never occurred as a matter of law…”
Mr Wells then postulated that an alternative manner that was previously open to his client in dealing with the matter was pursuant to the Judicial Review Act. However of course that application is not one which is either before me or one that I could decide.
Mr Wells then embarked upon submissions in relation to what he said was the second ground of his submissions.
THE SECOND GROUND
Mr Wells (at page 26 of the transcript) went on to say; “I turn now to the – the second basis, …on which you could dismiss this prosecution”
My understanding of this submission was that in relation to the document marked as Exhibit 2, being a Certificate issued pursuant to section 157 of the SPER Act and signed by a Sheree Nitkiewicz, that the particular certificate did not conform with the statutory requirements of the SPER Act..
In this respect he referred me to section 157(3) which is: “A certificate purporting to be signed by the Registrar and stating any of the following matters is evidence of the matter-
(a) stated information or particulars were registered under the Act on a stated day;”
Mr Wells’ submission as I understood it was that as Ms Nitkiewicz was not the Registrar, but simply a delegate, the certificate did not conform with the legislation.
When I questioned Mr Wells as to whether the Registrar could delegate his or her authority he conceded that was the case.
In this respect I refer to section 161 of the SPER Act which says: “The registrar may delegate the registrar’s powers under this Act to an appropriately qualified person.”
He did go on to say however that:
“It does not, however, say that the delegation can be, such as can set aside the explicit words of the statute. In any case I’m not aware that we have the instrument of delegation, your Honour. If there were a delegation, we don’t have the instrument of delegation…Therefore I would submit that the probative value of this document is- is minimised by virtue of the fact that the document does not meet the statutory requirements.”
Mr Wells further made submissions in relation to the other document that being a certificate issued pursuant to the TORUM Act and referred me to section 124 of that Act.
Section 124(r) of that Act says:
(r) the allegation or averment in any complaint that –
(i) any person is or is not or was not at any time or date mentioned in the complaint…
(D) the holder of a driver licence authorising the holder to drive a motor vehicle on the road therein specified; 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;
Mr Wells (at page 30 of the transcript) summed up:
“Your Honour, this is a document which would make a prosecution case conclusive in all circumstances, except where there was evidence to the contrary…And I submit that that statutory requirement has been satisfied, that the letter of Garth Peake, plus the other documents that have been put before you, plus the proposition of law that my …client was in fact a licensed driver at the time of the interception constitutes that in rebuttal… and that you could notwithstanding this section which gives status to the particular certificate, which my learned friend has tabled…that evidence has its life only by grace of a statutory provision, and that statutory provision is only a prima facie statutory provision…”
SUBMISSIONS IN RESPONSE
The prosecutor made a number of submissions in response.
After addressing the issue of a no case to answer (which I have already outlined above) her primary submissions were what I believe to be as follows.
Firstly she contended that the letter from Senior Sergeant Garth Peake only made it clear that two infringements; namely infringement notice number A25100196 and infringement notice A25101835 issued on 1 September 2005 had been withdrawn.
She said (page 41 of transcript) “… it is quite clear that this letter relates to those two infringement notices and can’t be taken any further than in regards to any information for those two infringement notices.”
This submission presumably relates to the fact that the “RE” tag on that letter only mentioned those two particular infringement notice numbers.
I note that the body of that letter in fact indicated: “infringement notices which issued as a result of an incident which allegedly took place on the 1st of September 2005 are waived, and the records have been amended accordingly.”
The prosecutor went on to say: “And it’s prosecution’s submission that that letter is quite clear considering it is in bold, and it refers to two specific infringement notices.” (page 43)
I must say that I had difficulty at the time, and still have difficulty accepting this proposition as submitted on behalf of the prosecution.
I have had regard to the fact that a third infringement notice had been sent to the defendant on 6 September 2005 in substitution for one of the Notices sent earlier to the defendant due to what I believe was because of an incorrect reference to an engine number.
I am satisfied on reading the letter of 3 October 2005 from Senior Sergeant Garth Peake and in particular the fact that the letter makes reference to an incident which took place on 1 September 2005, that the defendant could rightly have thought from the contents of that letter that the Notices which he received in relation to that incident had been waived and that the records had been amended accordingly.
The police at the time had made a series of errors, the first of which was that one of the infringement notices was defective for which a fresh Notice issued.
Then when it was ascertained that the vehicle was in fact neither unregistered or uninsured on the day in question they neglected to waive or record the withdrawal of all of the notices which had issued in relation to the alleged offences on the day in question.
A person standing in the position of the defendant could not be expected to reconcile or be concerned with the Infringement Notice numbers referred to in a “Re” tag line in a letter.
I would have thought that if a reasonable person received the type of letter which the defendant received from Senior Sergeant Garth Peake which indicated that the matters which resulted from the incident on the day in question had been rectified and that the records had been amended accordingly, and having been informed that there was nothing further required of him then Mr Mytton should have been able to rely upon that letter.
The prosecutor further made submissions that in any event the further letter received by Mr Mytton; that is the one of 1 August 2008 should have alerted him to the fact that one of the previous tickets was still sitting recorded on his SPER history.
She further went on to say that the letter of 1 August 2008 not only contained particulars of the fine of $945 which referred to the remaining infringement notice from September 2005 but also contained other entries and that one could not be satisfied that save for the entry from September 2005 Mr Mytton still may have been in a position of having his licence cancelled.
I note on this point when I asked the prosecutor following:
BENCH: “But just before you go on there, but where is the evidence to say that notwithstanding that entry relating to’05 he still would have been liable to a suspension of his licence? You haven’t placed that evidence before me?
The response was as follows: “No, your Honour, I haven’t.” (page 55)
I note that the letter dated 1 August, 2008 refers only to the offence of “permit drive uninsured class vehicle, 1 September 2005, $945” as being the applicable offence under the heading of “Debt Suspension Details”.
The police prosecutor submitted that: “…any reasonable person on receiving that notice from SPER and seeing that that ticket was still on there, would have then made some effort at least to try and sort that out, rather than just making the blanket decision to continue to drive…”
She then referred me to section 104 of the SPER Act, being the criteria for suspending a drivers licence, and specifically to the third reason as set out in s104(5) namely that the Registrar has issued an enforcement notice and the enforcement debtor has not paid the amount within the 28 day period referred to.
She contended that even if a ticket may have been issued in error by police and it was lawfully registered with the Department of Transport and then lawfully registered with SPER then SPER had the authority to act on it.
She went on to say: “..the defendant initially has a number of options and he doesn’t do anything. He can’t then on failing to do anything about this then take the law into his own hands…”
The prosecutor then addressed me on the delegation in relation to the Certificate under the hand of Karen Howell being a Department of Transport officer and the fact that attached to the certificate was an affidavit of Ms Howell which exhibited an extract from the Government Gazette and the instrument of delegation.
She then went on to submit (at pages 72 and 73): “There is no rebuttal stating that Ms Howell is not an authorised delegate. That that certificate cannot be taken as conclusive evidence…[this is the certificate pursuant to the TORUM Act] therefore, that certificate is conclusive that on that date 15 May 2010, the defendant was not the holder of a Queensland licence.”
I cannot agree with the submission that the certificate which issued pursuant to the TORUM Act is necessarily conclusive evidence that Mr Mytton was not the holder of a licence on 15 May 2010. (my emphasis)
In any event Mr Wells at no time challenged the certificate issued pursuant to the TORUM Act as being deficient because the officer signing the certificate was not authorised to do so.
His submission in that respect was confined to the certificate issued in reliance of section 157 of the SPER Act.
His submission was that the certificate issued in reliance on s157 of the SPER Act signed by Sheree Nitkiewicz was deficient in two respects, firstly section 161 of SPER (i.e. Delegation by registrar) could not set aside the explicit words of the Statute, (i.e. a certificate signed by the Registrar pursuant to section 157) and, secondly that there was no instrument of delegation. (my emphasis)
SECTION 157 CERTIFICATE
I have specifically referred to a document which was part of Exhibit 2 in these proceedings, dated 6 December 2011 and titled: “Certificate of Registrar”
That document is signed:
Sheree Nitkiewicz A/Manager
Compliance Management
Registrar, SPER or delegate
State Penalties Enforcement Registry
In the first paragraph of that Certificate it was indicated as follows:
“I, Sheree Nitkiewicz – A/Manager, Compliance Management, being the proper officer who has been authorised in accordance with section 161(1) of the State Penalties Enforcement Act 1999…HEREBY CERTIFY:”
Unlike the certificate tendered to me under TORUM, which had an accompanying affidavit of the person who signed that certificate, (such affidavit exhibiting the Instrument of Delegation and the extract from the Government Gazette), the Certificate tendered pursuant to section 157 of the SPER Act was not accompanied by any other document.
This is what I believe to be at the crux of one of the submissions made by the defendant, that is that there was no instrument of delegation in the evidence before me.
In her submissions on this point the prosecutor indicated (page 74): “-it is quite clear in that certificate that she is a delegate of SPER…” (My emphasis)
VALID DELEGATION?
I have already set out the relevant discussion at paragraph 52 of the decision of McIntosh v Winston, which postulates that the s157 certificate was prima facie evidence of the matters stated in it.
I have also had regard to the decision of Lekich v. Dixon [2009] QDC 111 which in part considered an appeal from a decision of an acting Magistrate in relation to receiving into evidence a certificate issued under the TORUM legislation.
I find the principles raised in that matter analogous to the principles to be applied by me in this matter.
His Honour District Court Judge McGill in that matter when considering the validity of a certificate issued by a police officer who certified that he was an authorised delegate of the Commissioner of Police, went on to say: “So far as I am aware, however, there is no statutory provision by which the fact of the delegation can be proved by the certificate of the delegate…” [ paragraph 7]
His honour went on to say: “None of the statutory provisions have the effect of making the contents of any particular certificate conclusive evidence of anything in particular; they merely have the effect of making various things evidence…” [paragraph 31]
In that decision he found that: “it was necessary for the respondent to prove the fact of that delegation…The respondent sought to prove the delegation by including reference to it in the certificate. The difficulty with that approach is that I am not aware of any statutory authority under which the delegation can be proved by the certificate of the delegate.” [paragraph 38]
His Honour further referred to section 27A(14) of the Acts Interpretation Act 1954 which provides that: “a certificate signed by the delegator…stating anything in relation to a delegation is evidence of the thing.”…But there is nothing in that Act by which a certificate by the delegate is made evidence of the existence of the delegation.” [paragraph 40].
He went on to find in that matter: “In the absence of admissible evidence of the delegation, the certified photograph was not properly proved, and the tender of it should have been rejected by the magistrate…[paragraph 46] Without Exhibit 1 there was no evidence before the magistrate to prove the offence and accordingly the prosecution ought to have failed.” [paragraph 47]
I note that the decision of His Honour was the subject of an unsuccessful appeal heard in the Court of Appeal, that decision being referred to as the slightly different citation of Dixon v LeKich [2010] QCA 213.
In the appeal brought on behalf of the police applicant it was argued that the primary judge erred in failing to apply the presumption of regularity and in holding the photographs inadmissible.
His Honour Justice Fraser (with whom President McMurdo and Justice White agreed) in that decision held:
“…The consequences of a delegation by the Commissioner are by no means insignificant. It arms a police officer with the power to provide prima facie proof of an offence merely by signing a certificate…It does not seem unduly pedantic to insist upon proof of such delegation…The applicant omitted to do so. In the absence of any admissible evidence that there was such a delegation, the photographs were inadmissible.” [paragraph 26]
His Honour later said:
“By ss 27A(130, (14) and (15) of the Acts Interpretation Act 1954 (Qld) the legislature has facilitated proof of a delegation by unambiguous language which renders a certificate by the delegator admissible in evidence. If the legislature had intended to produce the rather more surprising result, that a person who claimed to be the object of a delegation could prove that fact merely by certifying that it was so, one would expect to see clear statutory words to that effect…”
I note in the recent decision of Dixon v. Reeves [2012] QDC 9 which again was an appeal from a decision of a magistrate, and one which cited the Court of Appeal decision of Dixon v LeKich [2010] QCA 213, His Honour, District Court Judge Samios held:
“…However, the efficacy of Exhibit 11 is predicated upon the validity of the delegation. Without proof of it the certificate is naturally incapable of establishing the defendant was the driver and the offence is therefore not able to be proven.” [paragraph 8].
THE DECISION OF McINTOSH v. WINSTON
At first blush the decision of McIntosh v. Winston appears to be on all fours with the one to be decided by me.
Upon further reflection however there are some notable differences in this matter and the facts applicable to that case.
Firstly, it was indicated in that decision: “that it is far from certain that the withdrawn charge referred to in the letter of 16 February 2007 was one of the charges leading to the SPER suspension…” (paragraph [49].
Secondly, it was the case in that matter that the defendant knew that his driver’s licence was suspended when he drove his vehicle on 3 July 2006, and that: “even though he may have been in the process of having it lifted, he was not entitled to ride the motorbike in Queensland. His contention challenging the validity of the SPER suspension fails.” [paragraph 49]
Thirdly, in that case the certificates tendered in reliance of s157 of SPER were not disputed, whereas in this current case the s157 certificate is challenged by the defendant.
FINDINGS
The defendant is charged with an offence under s 78(1)&(3)(f) of the Act.
That is that he was not only unlicensed at the time of the alleged offence but at the time he was suspended under the State Penalties Enforcement Act 1999.
The aggravating feature of an offence of this type is that at the time of the offence being committed the defendant was suspended under the SPER Act from holding a licence which leaves the defendant liable to a mandatory disqualification period, whereas an offence committed under s 78(1), that is unlicensed driving simpliciter carries no mandatory disqualification period.
I note that the certificate signed by Ms Karen Howell is purported to be in reliance of section 60(2) of TORUM.
Section 60(2) of TORUM states: “A certificate stating any of the following matters is evidence of the matters…”
Presumably, the police in this matter rely specifically on section s 60(2)(b) which says: “a specified licence or other document under a transport Act or a corresponding law was or was not in force in relation to a specified person or vehicle”:
Further, the police presumably rely upon s 60(2)(g) of that Act: “specified particulars of a …suspension, cancellation…”
Clause 1 of that certificate sates:
1. On 15th May, 2010 there was not in force a Driver Licence issued under the Transport Operation (Road Use Management) Act 1995 and Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 to Meyrick Douglas Aplin MYTTON date of birth 13th December 1959.
Clause 2 of that certificate goes on to say:
2. Meyrick Douglas Alpin MYTTON’s authority to drive was suspended from 24/08/2008 until 17/05/2010 as a consequence of SPER suspension.
The certificate through the status given to it under s 60(2) of TORUM is evidence of those matters set out in the relevant section.
The certificate provides prima facie evidence that Mr Mytton was not the holder of a licence on 15 May, 2010 and that at the time he was SPER suspended.
I find therefore that there is a case to answer.
The certificate issued under s 60(2) however is simply evidence, not conclusive evidence as submitted by the prosecutor.
I also note that s 124(1)(r) of TORUM says that:
( r) the allegation or averment in any complaint that-
(i) any person is or is not or was or was not at any time or date
mentioned in the complaint-
…
(D) the holder of a driver licence authorising the holder to drive a motor vehicle on the road…
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 matters or matters”
In any event the relevant provision under section 124(1)(r) simply mentions that the allegation of averment goes only to whether the person was the holder of a driver licence authoring the holder to drive a motor vehicle on the road.
Nowhere in section 124 can I ascertain where an allegation or averment in a complaint in relation to being SPER suspended as being conclusive evidence in the absence of evidence in rebuttal.
An element of this offence, (which the prosecution needs to prove to the requisite standard of proof), is that not only on the 15 May 2010 there was not in force a driver licence allowing the defendant to drive but also at the time of the alleged offence the defendant’s licence was suspended as a result of a SPER suspension.
There is no doubt that a certificate under s 157 of the SPER Act would provide prima facie evidence of the fact that his licence was suspended as a result of a SPER suspension.
In this case however, I am not satisfied that the police have established that the s 157 certificate relied upon, was the subject of a valid delegation.
As the case law and The Acts Interpretation Act 1954 (Qld) indicates, it is only the delegator who can provide evidence of such a delegation.
As the certificate pursuant to s 157 has already been received into evidence, I give no weight to it and disregard it for the purposes of this matter.
Without such a certificate, I find that there is no evidence before me which could enable me to find that at the time of the alleged offence the defendant was in fact SPER suspended.
The prosecution therefore must fail.
I might say at this juncture that even if the prosecutor had provided sufficient evidence of such a delegation, and the certificate under the section 157 of SPER was afforded some weight in this matter, it is my view that it was open on the facts of this case to find that there was evidence which may have been sufficient to rebut the facts asserted in the certificates.
I note the other submissions made on behalf Mr Mytton.
However, in light of my findings I am not required to consider those matters further.
Accordingly, the Charge is dismissed.
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