Police v Simpson - [2016] QMC 28

MAGISTRATES COURT AT IPSWICH

CITATION:Police v Simpson [2016] QMC 28
PARTIES:Police
v
Mikaela Kate SIMPSON

COURT:Magistrates Court
LOCATION:Ipswich
FILE No’s:MAG-00136003/16(0)
IPSW-MAG-00007950/16

REASONS DELIVERED ON:     11 October 2016
HEARING/DECISION DATE:     15 September 2016
MAGISTRATE:                   D Shepherd
CATCHWORDS:
TRAFFIC – SPEEDING –“PAPER PROSECUTION” – SUFFICIENCY OF EVIDENCE – STATUTORY EVIDENTIARY AIDS
Plea of not guilty before magistrate – prosecution relying only on certificates and documentary exhibits – no oral evidence – sufficiency of evidence – no case to answer.
State Penalties Enforcement Act 1999
Transport Operations (Road Use Management) Act 1995
Transport Operations (Road Use Management Road Rules) Regulation 2009
Traffic Regulation 1962
REPRESENTATION:
Prosecution: Sgt Dick
Defendant: Appears on her own behalf

Mikaela Kate Simpson was charged by way of complaint and summons that, contrary to section 20 of the Transport Operations (Road Use Management Road Rules) Regulation 2009, on 8 December 2015 she drove a motor vehicle at a speed over the 40 kph limit which then applied to the road on which she was driving.
The complaint particularised that the offence occurred at 1535 hours, the vehicle was registered number 610-VRD, the speed was 74 kph in a school zone between 2-4 pm and that a photographic detection device infringement notice number 2037342142 issued on 10/03/2016.
The matter was set for hearing and proceeded by way of what is sometimes referred to as a ‘paper prosecution’, that is the evidence relied to prove the offence consists of a series of certificates and other documents which in conjunction with various statutory evidentiary aids, go to make up the evidence. No witnesses were called and therefore no oral evidence was given.
In any prosecution there are some fundamental principles which apply to safeguard those charged with offences, whether serious or not so serious. Generally, before a person can be convicted of an offence the prosecution have to prove each element of the offence beyond a reasonable doubt. They do so by relying on relevant (and therefore admissible) evidence. A trial is an accusatorial and adversarial process.
That onus and standard of proof as well as what constitutes evidence may be varied or determined by a clear legislative enactment. In Lee v The Queen[1] (2014) 253 CLR 455, at paragraph 32 the High Court noted,
Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that "no attempt to whittle it down can be entertained" albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.
(footnotes deleted)
[1] A case about the loss of…

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 Police v Simpson

Details

AGLC: Police v Simpson [2016] QMC 28
Case: [2016] QMC 28
Decision Date: 11 October 2016

CaseChat Overview and Summary

In Police v Simpson, the defendant, Mikaela Simpson, was charged with speeding in a school zone. The prosecution relied solely on certificates and documentary exhibits, without calling any witnesses, in what is sometimes referred to as a ‘paper prosecution’. Simpson pleaded not guilty, and the court had to determine whether the prosecution had provided sufficient evidence to prove the offence beyond a reasonable doubt.

The legal issues before the court were whether the statutory evidentiary aids, such as certificates and photographic evidence, were sufficient to establish the defendant's guilt in the absence of oral testimony. The court had to consider the sufficiency of the evidence and whether the prosecution had met the standard of proof required by law. The court also needed to examine the chain of responsibility for the offence and whether it was correctly attributed to Simpson.

The court found that the prosecution had not provided sufficient evidence to convict Simpson. The prosecution had relied on a series of certificates and statutory declarations, but these did not establish beyond a reasonable doubt that Simpson was either the driver or the person in charge of the vehicle at the time of the offence. The court noted that absolute and strict compliance with the statutory provisions was necessary, especially in the absence of oral evidence. The court concluded that the prosecution had not met its burden of proof, and therefore dismissed the charge against Simpson.

The final orders of the court were to dismiss the charge against Mikaela Simpson and discharge her. The court provided written reasons for its decision, emphasising the importance of strict compliance with statutory provisions in cases where no oral evidence is presented.

Orders

Orders of the court

1. Mikaela Kate Simpson was charged by way of complaint and summons that, contrary to section 20 of the Transport Operations (Road Use Management Road Rules) Regulation 2009, on 8 December 2015 she drove a motor vehicle at a speed over the 40 kph limit which then applied to the road on which she was driving.

2. The complaint particularised that the offence occurred at 1535 hours, the vehicle was registered number 610-VRD, the speed was 74 kph in a school zone between 2-4 pm and that a photographic detection device infringement notice number 2037342142 issued on 10/03/2016.

3. The matter was set for hearing and proceeded by way of what is sometimes referred to as a ‘paper prosecution’, that is the evidence relied to prove the offence consists of a series of certificates and other documents which in conjunction with various statutory evidentiary aids, go to make up the evidence. No witnesses were called and therefore no oral evidence was given.

4. In any prosecution there are some fundamental principles which apply to safeguard those charged with offences, whether serious or not so serious. Generally, before a person can be convicted of an offence the prosecution have to prove each element of the offence beyond a reasonable doubt. They do so by relying on relevant (and therefore admissible) evidence. A trial is an accusatorial and adversarial process.

5. That onus and standard of proof as well as what constitutes evidence may be varied or determined by a clear legislative enactment. In Lee v The Queen[1] (2014) 253 CLR 455, at paragraph 32 the High Court noted,

Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that "no attempt to whittle it down can be entertained" albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.

(footnotes deleted)

6. In the present case the prosecutions’ pathway to conviction was the evidence provided by a series of certificates, photos and other documents said to be admissible pursuant to various statutory provisions.

7. An overview of the prosecution case helps understand this unusual matter. The prosecution, in an opening, alleged that a vehicle, registration number 610-VRD, was caught on camera travelling at 74 kph in a 40 kph zone on the relevant day. An infringement notice was issued to City Motor Auction Group Pty Ltd (the apparent registered owner of the vehicle). That organisation was said to have subsequently provided a statutory declaration nominating Mikaela Simpson as the person in charge of the vehicle at the time of the offence. Mikaela Simpson apparently provided a statutory declaration nominating Daniel Gannon as being the person in charge at the relevant time. In turn Daniel Gannon provided a statutory declaration nominating Mikaela Simpson as the person in charge at the relevant time.

8. The respective infringement notices issued to each of the above business and natural persons were in turn withdrawn against them when they provided declarations that someone else was in charge of the vehicle at the time. The last infringement notice was sent to Mikaela Simpson by mail. No further response or additional declaration was received from Simpson and she was ultimately summonsed for the offence. Ms Simpson appeared but was not represented. She pleaded not guilty to the charge. At the conclusion of the prosecution case I ruled there was no evidence upon which the defendant could be convicted. I dismissed the charge and she was discharged. I advised the parties that I would provide them with written reasons. My reasons are as follows.

9. Each step in this chain needs to be examined. I will put aside for these purposes certain of the formal issues such as proof of delegations or other authority to sign certificates.

10. Where a defendant is put on trial for an offence and where reliance is placed on statutory aids to the extent that no person is called to give evidence, even where the critical issue in dispute may hinge on a determination of credibility, absolute and strict compliance with those statutory provisions must be achieved.

11. In A-G (Qld) v Morris & Anor [2015] QCA 112 the validity of various provisions of the Transport Operations (Road Use Management) Act 1995, including section 114, where called into question. The Court of Appeal while upholding the validity of those provisions said:

[12] The role of s 114(1) is to attribute criminal responsibility to the person in charge in the circumstances in which it operates. The section does not create a new and separate offence. The person in charge is taken to have committed “the offence”, that is to say, the prescribed offence that has happened and has been detected by a photographic detection device. Thus the factual basis for attribution of criminal responsibility for the prescribed offence under s 114(1) is different from that under s 20. For the driver, attribution is based upon his or her having driven over the speed limit. For the person in charge, attribution is based upon the prescribed offence having happened, its having been detected by a photographic detection device, and the status of the individual as the person in charge of the vehicle.

[13] Thus, where the person in charge is not the offending driver, criminal responsibility for the offending will be attributed to two individuals. Section 114(2) affirms that both are criminally liable for the offence but has effect that only one of them may be punished for it.

[21] Where a s 20 speeding offence has been committed, criminal responsibility for it under s 114(1) is not dependent upon a factual finding that the person in control was the driver of the vehicle at the time the offence was committed. To conclude that criminal responsibility is attributed to an individual under s 114(1), the magistrate must find, and need only find, that a speeding offence has happened; that the offence has been detected by a photographic detection device; and that the individual was the person in charge of the speeding vehicle at the time. No finding as to the identity of the actual driver need be made.

[22] Thus, there is no intrusion upon the judicial function by requiring a fiction to be found as fact. Moreover, if an issue does arise as to the identity of the offending driver as a result of steps taken under ss 114(3) or (8), the Magistrate may exercise jurisdiction to determine that issue of fact.

(underlining added)

In the present case the prosecution was based on the allegation that the defendant was the person in charge or the actual driver of the vehicle. On the prosecution case that issue was in dispute and in any event the defendant pleaded not guilty thereby putting all issues in dispute.

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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