R v Doumit

[2023] NSWDC 558

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Doumit [2023] NSWDC 558

Hearing dates:

13 December 2023

Date of orders:

13 December 2023

Decision date:

13 December 2023

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See [45]

Catchwords:

CRIMINAL LAW – appeals and reviews – appeal against Local Court convictions – road traffic offences

Legislation Cited:

Road Rules 2014 (NSW) rules 20 and 59

Road Transport Act 2013 (NSW) ss 10, 137, 138, 184, 185, 186, 187, 190, 257

Cases Cited:

R v Scott [2023] NSWDC 271

Category:

Principal judgment

Parties:

Transport for NSW
Pierre Doumit

Representation:

Mr L Hijazin for Transport for NSW (Solicitor)
Mr P Doumit, Self-represented

File Number(s):

2022/310812; 2022/310816; 2022/310823; 2022/311857

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

30 August 2023

Before:

Magistrate G Breton

File Number(s):

2022/310812; 2022/310816; 2022/310823; 2022/311857

REASONS FOR JUDGMENT

1. On 1 August 2023 Mr Pierre Doumit (the ‘appellant’) was convicted and sentenced by the Mount Druitt Local Court of multiple road transport offences. The first three occurred on 9 October 2020. The last occurred on 28 October 2020. All of them were said to be detected by camera. They were:

1. proceeding through a red light, contrary to Road Rule 59(1) of the Road Rules 2014 (NSW)

2. exceeding the speed limit by more than 10km/h, contrary to Road Rule 20

3. exceeding the speed limit by less than 10km/h, contrary to Road Rule 20

4. exceeding the speed limit by less than 10km/h, contrary to Road Rule 20

2. Separately the Local Court had acquitted the appellant of two other charges which were alleged to have occurred on 31 March 2020.

3. The appellant’s defence to all of the charges were that he was not the driver. In his Application for leave to appeal the offences (which application was granted on 13 October 2023), he wrote that he:

“.. was in hospital because I was in surgery for my back. I couldn’t drive or leave the house because of the operation.”

Nature of conviction appeals

4. In R v Scott [2023] NSWDC 271 at [5]-[6], I recently stated the principles for appeals to this Court from convictions in the Local Court.

“2. Section 18(1) of the Crimes (Appeal and Review) Act 2001 (NSW) provides that the appeal is a rehearing on the certified transcripts of evidence and the exhibits tended in the Local Court. The proceedings are not an appeal de novo.

3. The court must give the judgment which, in its opinion, ought to have been given in the first instance.

4. The appellant must demonstrate factual, legal, or discretionary error to succeed.

5. That said, the term ‘error’ has no precise meaning and refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgement of the trial judge will not be set aside unless the appellate judge is satisfied the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of ‘error’ in the ordinary meaning of that term.

6. The requirement that the appellant show error does not reverse the onus of proof. At all material times, the prosecution bears the onus on establishing guilt beyond reasonable doubt. Demonstration of error can mean no more than satisfying the appellate judge that the magistrate should not have been satisfied beyond reasonable doubt as to the appellant’s guilt. An appeal must be upheld unless the appellate judge is satisfied of the appellant’s guilt beyond reasonable doubt.

7. The appellate judge must form their own judgment on the facts and determine on the basis of the evidence that was before the magistrate, whether the evidence was sufficient to demonstrate the appellant’s guilt beyond reasonable doubt.”

[6] However, to this statement of principles, I would add the following, which essentially relate to forensic limitations upon this Court in respect to appeals of this kind:

1. there is no requirement of the Judge on appeal in this Court to undertake a free-standing review of all of the evidence in the absence of guidance and submissions from the parties: Lunneyv DPP (2021) 105 NSWLR 236 at [3], [29]-[30]; and

2. the appellate judge is not precluded from referring to the reasons for decision of the Local Court Magistrate and findings by the Magistrate as to the credibility of witnesses: McNab v DPP (NSW) (2021) 106 NSWLR 430 at [73];

3. in particular, (and as a function of the appeal being conducted on the basis of the transcript and exhibits in the Local Court) where credit findings are made by the Magistrate, the appellate judge recognises the advantage of the Magistrate in hearing and seeing the witnesses; however, whilst recognising that advantage, the appellate judge will, in practice, be focussing on the question whether disputed evidence (especially in a ‘he said, she said’ type case) is consistent with incontrovertible facts, undisputed facts and other relevant evidence: McNab at [32].

Elements of the offences

5. Road Rule 59 provides:

“(1)  If traffic lights at an intersection or marked foot crossing are showing a red traffic light, a driver must not enter the intersection or marked foot crossing.”

6. Road Rule 20 provides:

“A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving.”

7. In addition, the prosecution placed reliance upon certain provisions of the Road Transport Act 2013 (NSW) (‘RT Act’). These were as follows.

8. Section 184 of the RT Act generally deemed the ‘responsible person’ to be guilty of offences unless the person satisfies the Court of certain issues.

9. Section 10 of the RT Act defined "responsible person" for a veh icle means--

(a) in relation to a ve hicle that is registered  in Australia--each of the following persons--

(i) an Australian registered ope rator of the v ehicle, except where the v ehicle has been disposed of by the operator,

(ii) if the vehicle has been disposed of by a previous Austr alian registered operator--a person who has acquired the ve hicle from the operator,

(iii) a person who has a legal right to possession of the vehi cle (including any person who has the use of the veh icle under a lease or hire-purchase agreement, but not the lessor while the veh icle is being leased under any such agreement), 

10. Section 185 provides a basic exception, where the responsible person nominated another person, the ‘liable person’ (within 21 days) as being in charge of the motor vehicle; or could prove to the Court that the responsi ble person did not know and could not with reasonable diligence have ascertained the nomin ation details of the lia ble person.

11. Where, as in this case, the context is a camera-recorded offence, section 186 provides that the recipient of the initial ticket but who was not the driver, must, within 21 days, effectively nominate the person who was in charge of the vehicle. That is unless the person who was in charge of the vehicle had not nominated themselves in the meantime.

12. Section 187 provides a defence. It is stated in the following terms:

“Despite secti on 184, the responsibl e person for a v ehicle who is issued with a pen alty notice or a court a ttendance notice in respect of a ca mera recorded offence is not guilty of that offence by operation of that section if the person--

(a) complies with section 186 in relation to the offence, or

(b) satisfies the au thorised officer (in the case of a penalty no tice) or the co urt (in the case of a court att endance notice) that the respon sible person did not know and could not with reasonable diligence have ascertained the n omination details of the person who was in charge of the veh icle at the time the offence occurred.”

13. The effect of the legislative scheme is that the relevant ticket is sent to the person nominated by the responsible person. An obligation is then cast on that person so nominated to dispute their liability, to themselves nominate someone else or prove that they could not, with reasonable diligence, have ascertained the details of the person who was in charge of the vehicle at the time of the offence.

14. Also, by s 190(1)(b), a person’s statutory declaration, amongst other things, in relation to a s 186 nomination is taken to be prima facie evidence of the facts asserted in the nomination ie that the person ‘nominated’ was in fact the driver of the vehicle at the time the offence occurred.

Prosecution case

15. The prosecution case relied upon certificates (Exhibits 3-6 in the Local Court hearing) which were admissible under ss 137, 138(2) and 257 of the RT Act.

16. Further, the prosecution case was that, firstly, infringement notices in relation to the offences (on both 9 October and 28 October 2020, respectively) were sent to Mr Tony (also known as Mark) Saba as the responsible person; secondly, Mr Saba had nominated the appellant (whom he described as a cousin) as the driver of the vehicle. In effect, this cast liability upon the appellant.

17. The appellant represented himself in the Local Court, with the aid of an interpreter. He indicated to the Magistrate that, for each of the offences in question, he did not contest that the relevant road rules had been infringed. His sole defence was that he was not the driver and therefore could not be responsible.

18. As the prosecutor put the matter to the Local Court, the legislative scheme was such that after having been nominated himself the appellant had to nominate someone else or satisfy the Court that he could not, with reasonable diligence, have known who was in charge of the motor vehicle.

19. Given that there was no contest that the driver of a vehicle depicted in the photos had infringed the Road Rules, as alleged, the critical issue was whether (for the purposes of s 187(b)) the appellant could prove to the Local Court that he did not know, and could not with reasonable diligence have ascertained, the nomination d etails of the person who was in charge of the v ehicle at the time the offence occurred. As the learned Magistrate observed in an exchange with the prosecutor in the hearing in the Local Court, the appellant bore the onus of proving that matter on the balance of probabilities.

20. Although the prosecutor relied upon the effect of Mr Saba’s statutory declaration under s 190(1)(b), Tony Saba was called by the prosecutor to give evidence. This, the prosecutor explained, was because by its terms, s 190 only gave the evidence ‘prima facie’ effect.

21. Mr Saba said he was the registered owner or operator of the 2009 Toyota HiAce van with registration CY 52 FF, on the dates of the offences. He confirmed receipt of the infringement notices for all of the offences through the mail. In respect to the three offences on 9 October 2022, Mr Saba recalled nominating the appellant, first electronically, and secondly, by completing three statutory declarations (in respect to each offence on 9 October 2022) on 28 September 2022. In respect to the single offence on 28 October 2022, he had completed another statutory declaration.

22. Mr Saba said that the appellant was related to him. This was a reference to his being his mother’s nephew. Specifically, he said that “we sheltered him. He slept over, we looked after him ..” The sheltering occurred after he had arrived from Beirut or Lebanon after a bombing that occurred in 2019. The ‘sheltering’ of the appellant was shared between Mr Saba and the latter’s sister. (He identified his place as being connected as a granny flat at the back of his parents’ place in Merrylands).

23. Mr Saba elaborated that the vehicle was his own, but since the appellant did not have his own vehicle to drive, he let the appellant drive the vehicle whenever he needed it. He recalled that for most of the time the appellant drove the car after work hours (even though for the offences, the times were early in the morning). He said that he did not lend his car to anyone else and said that no one else had access to it other than himself or the appellant. He indicated that there was only one car key.

24. Mr Saba also accepted, in response to questioning from the learned Magistrate, that he kept no written record of instances when the appellant drove. He was relying upon his recollection of events. For the offences that occurred on 9 October 2020, his electronic nomination occurred on 8 March 2021 (virtually 6 months after the incident).

25. Mr Saba also referred to a conversation with the appellant about the offences. He said the appellant admitted to him that he had committed them and gave Mr Saba his licence. He recalled the appellant saying “Yeah, that was me” when he showed the appellant the fines. He said he told the appellant that he would be transferring the fines to the appellant before he had signed the statutory declarations. At this time, he recalled being shown the appellant’s licence after he asked the appellant for the licence. Mr Saba believed that this occurred before making the electronic notification on 8 March 2021.

26. The appellant cross-examined Mr Saba, but only briefly. This gave rise to difficulties later when he gave evidence conflicting with Mr Saba’s account because of the appellant’s non-compliance with the rule in Browne v Dunn.

27. The appellant pressed Mr Saba for details of when he had slept over, but the most that the witness could recall was that he had slept over in the period in which the alleged offending occurred. The appellant put to Mr Saba that he was on his honeymoon on 9 October 2020 and not sleeping at anyone’s house, but Mr Saba rejected that proposition. The appellant put to Mr Saba that he deliberately (and falsely) nominated the appellant. Mr Saba rejected that proposition.

The appellant’s evidence

28. The appellant said that he was not driving the vehicle on the two days the subject of the offences. He said he was unaware of the locations where the subject vehicle had been detected by camera.

29. He said that he came to Australia in January 2020 and went to his cousin’s place. He said he did not have access to a motor vehicle. He denied staying with Tony Saba. He denied giving Mr Saba his driver’s licence. Rather it was to Mr Saba’s sister that he gave the licence to and he believed that the latter took a photo of it. He disputed that Mr Saba lived in the granny flat attached to Mr Saba’s parents’ place. It was Mr Saba’s brother (Sayed Saba) who lived there; although he denied ever living there. He said he spent most of his time with his brother, Johnny; and would rely upon him if he needed to get around.

30. He said he was married on 3 October 2020. He tendered a marriage certificate in support of that evidence. He said he was on honeymoon for four days and four nights at a hotel in Woolloomooloo, after a ceremony in Merrylands. After the honeymoon ended, he said he went to his brother’s place, which was in Merrylands.

31. He also indicated that in the period from January 2020 (when he arrived in Australia) to October 2020, money had come to him, even though he was not working as an electrician (the occupation specified on the Marriage certificate).

32. Under cross-examination, and after being asked questions about the other offences (on which he was acquitted), the appellant was asked about what steps he had taken to ascertain who the responsible driver was. The appellant responded that he went to see the lawyer. He acknowledged that he provided Revenue NSW with a photo of Mr Saba and his car. The Magistrate asked him whether he had tried to ascertain Johnny’s address and the appellant identified that.

33. Later when the time came for closing submissions, he said to the Magistrate that he had never lied or been fearful of incurring any fine.

The Magistrate’s reasons

34. The Magistrate summarised the appellant’s case as being that he had not been the driver and indeed had not had access to the vehicle. That meant that he could not be responsible and could not be expected to know or have, with reasonable diligence, knowledge of the responsible persons.

35. The learned Magistrate made favourable credit findings about Mr Saba, including describing him as providing ‘compelling’ evidence about his history (as in association) with the appellant.

36. The Magistrate considered the appellant’s evidence about his honeymoon. Taking that evidence at its highest, the appellant still had the opportunity to access Mr Saba’s vehicle. He noted that Mr Saba was not challenged by the appellant when the latter cross-examined Mr Saba in the sense that he had only provided his licence to Mr Saba’s sister. The appellant did not suggest that Mr Saba was making up what was recorded on the statutory declarations or electronic notifications.

37. The Magistrate determined that the appellant did not persuade him of a matter upon which he bore the onus of proof: namely, that he did not know nor, with reasonable diligence could not have known, the details of the person who was responsible. That being so, he was, by operation of the legislation, deemed to be responsible.

Submissions in this appeal

38. The appellant, who represented himself on this appeal with an interpreter, as he had in the Local Court, submitted that:

• he did not understand that he needed to challenge Mr Saba’s evidence in the Local Court;

• he did not understand his interpreter in the Local Court;

• Mr Saba was responsible for a vast number of traffic infringement notices being issued to him in the Burwood Local Court, for which he was not responsible.

• Mr Saba was wrong to say that the appellant lived with him.

• that insofar as the offences occurring on 9 October 2020 were concerned, he was getting married on 10 October 2020 and he was not driving in Australia at all at this time.

Consideration

39. The Court is troubled by the circumstance of the appellant’s alternative explanations. In the Local Court hearing, the appellant effectively submitted that he could not have committed the offences on 9 October 2020 as he had only just enjoyed his honeymoon. But in his Notice of Appeal, he said that he was in hospital. That was never mentioned in the Local Court. Today, from the Bar Table, and in what effectively amounted to fresh evidence, he said he got married on 10 October 2020.

40. Despite seeking to distance himself from Mr Saba, even on the appellant’s own account, there was an inherent closeness between the appellant and the members of Mr Saba’s family. He purported to describe the Saba family’s living arrangements. Further, it would not make sense that he would supply his driver’s licence to Tony Saba’s sister if he was not close to the Saba family.

41. I also do not accept that the appellant was unable to have raised with the Local Court, as a reason for rejecting Mr Saba’s account, that Mr Saba had falsely instigated his incurring other traffic infringement notices.

42. Having regard to these inconsistencies and the probabilities, I reject the appellant’s version of events and without acceptance of that version, it is a very short path to conclusion that the appellant cannot demonstrate that he did not know and could not with reasonable diligence know, the details of the responsible person.

43. Alternatively, the same outcome can be reached simply by finding that the offending was proved through the prosecution’s evidence. The statutory declarations were not only admissible but constituted prima facie proof.

44. The learned Magistrate had the benefit of hearing and seeing not only the appellant but also Mr Saba give evidence. There is nothing to suggest that his favourable credit findings concerning the latter were glaringly contrary to other facts.

45. The appeal against the convictions for each of the 4 offences (three on 9 October 2020 and one on 28 October 2020) in the Mount Druitt Local Court on 1 August 2023 are dismissed.

**********

Amendments

13 December 2023 - Amend the numbering in [1]

13 December 2023 - Amend dot points in [38]

Decision last updated: 13 December 2023